77
l)
m)
n)
o)
Fujimori and the preliminary investigation of the instigators started by the
Attorney General´s Office, involving two high-ranking members of the
Peruvian Army and the main presidential advisor at the time of the events,
seek to include all those that could be responsible for the facts at La Cantuta
and are not circumscribed or restricted merely to the material perpetrators of
the facts. In the preliminary investigation of the Attorney General´s Office,
the acquittal granted by a military court has no legal effects, that is to say, it
is not to be considered a res judicata case;
it will receive and abide by the Court's decision concerning the investigation,
identification and punishment of those responsible for issuing orders to
commit international crimes such as the ones constituting the subject of the
instant case. Thus, the duty to investigate and punish will rely on clearer
criteria than those currently available to the national legal system to comply
with this constitutional duty arising from an international source;
there is an additional element in the quest for justice. The legal status of
former president Alberto Fujimori must be elucidated by a third-party State,
despite the efforts and will of Perú. Undoubtedly, this fact seriously hinders
the full assumption of the duty to investigate the facts and punish all those
responsible;
the Constitutional Court of Perú, in the judgments on cases against two
people involved in the facts, has issued guiding criteria for the whole judicial
apparatus, explaining that a decision rendered by a Military Court has no res
judicata effect, inasmuch as said court has no competence to investigate and
punish human rights violations. These are recent decisions of the
Constitutional Court which allow justice operators to review the decisions they
may have adopted so far and which may not conform to law, to the Political
Constitution, the American Convention and the jurisprudence of the Court,
and
regarding amnesty laws, State operators, based on the judgment in the
Barrios Altos case, have begun to adopt measures, within their jurisdictions,
intended to rid the national legal system of said laws, which has made it
possible that the instant case, among others, be made public in Perú, which
proves that this obstacle no longer exists.
Considerations of the Court
133.
Article 8(1) of the American Convention establishes that:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the determination
of his rights and obligations of a civil, labor, fiscal, or any other nature.
134.
Article 25 of the Convention provides that:
1.
Everyone has the right to simple and prompt recourse, or any other effective recourse,
to a competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even though
such violation may have been committed by persons acting in the course of their official duties.
2.
The States Parties undertake:
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