62
committed unlawful acts, and pursuant to International Law can not be
granted amnesty, as this would be contrary to the standards of minimum
protection to the dignity of the human person.238
[T]he issuance of amnesty laws is of the judicial-constitutional competence of
the Congress of the Republic, in such a way that the judicial rulings which are
issued pursuant to constitutionally legitimate amnesty laws lead to the
configuration of the constitutional res judicata. The control of the amnesty
laws, however, part of the presumption that the criminal legislature intended
to carry out within the scope of the Constitution and respect for fundamental
rights.239
[Said assumption] does not operate when it is proven that during the exercise
of the competence to enact amnesty laws, the criminal legislator intended to
also cover up the commission of crimes against humanity. Nor when the
exercise of said competence was used to “guarantee” impunity for serious
violations of human rights.240
On the merits[,] the Tribunal considers that amnesty laws [in question] are
null and void and lack, ab initio, legal effect. Therefore, the orders enacted so
as to guarantee impunity of the violation of human rights by [state agents]
are also null and void.241
167. In the same sense, the Supreme Court of Justice of Uruguay ruled recently
on the Expiry Law of the Punitive Claim of the State in said country, considering
that:
[no one] denies that a law enacted by a special majority and in extraordinary cases,
the State may decide to waive punishment for criminal facts. [However, the law is
unconstitutional because, in the case, the Legislative Power exceeded the
constitutional scope for awarding amnesties242 [because] to declare the expiration of
criminal prosecutions, in any case, exceeds the powers of the legislators and invades
the forum of a function constitutionally assigned to judges, so that, for whatever
reason, the legislature could not be attributed with the power of deciding that the
period had expired regarding prosecution for certain crimes.243
[C]urrent regulation of human rights is not based on the position of sovereign States,
but in the person as holder, given his or her status as such, of essential rights that can
not be ignored based on the exercise of the constituent power, neither original nor
derivative. 244
In this framework, [the amnesty law] under consideration affected the rights of many
people (notably, the victims, the next of kin, or those harmed by the human rights
violations mentioned above), their right to a remedy, an impartial and exhaustive
investigation to ascertain the facts, to identify those responsible and to impose the
238
Constitutional Court of Peru, Case of Santiago Martín Rivas, Constitutional Tort Action, Case
file No. 679-2005-PA/TC, Judgment of March 2, 2007, para. 30.
239
Constitutional Court of Peru, Case of Santiago Martín Rivas, Constitutional Tort Action, supra
note 238, para. 52.
240
Constitutional Court of Peru, Case of Santiago Martín Rivas, Constitutional Tort Action, supra
note 238, para. 53.
241
Constitutional Court of Peru, Case of Santiago Martín Rivas, Constitutional Tort Action, supra
note 238, para. 60.
242
Supreme Court of Justice of Uruguay, Case of de Nibia Sabalsagaray Curutchet, Judgment
No. 365/09, order of October 19, 2009, Considering clause III.2, paras. 8 and 9.
243
Supreme Court of Justice of Uruguay, Case of de Nibia Sabalsagaray Curutchet, supra note
242, Considering clause III.2, para. 13.
244
Supreme Court of Justice of Uruguay, Case of de Nibia Sabalsagaray Curutchet, supra note
242, Considering clause III.8, para. 6.
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