-37156. As was previously stated, the criminal proceedings against Sgt. Evangelista Pinedo
were archived for more than seven years and four months due to the application of Amnesty
Law N° 26.479 (supra paras. 59 and 64). In 2003, the Provincial Court ordered the
“desarchivamiento” (supra para. 64) of the case because “by extended application it is
necessary to apply to the present case what the Inter-American Court decided [in the Barrios
Altos v. Peru case]” and indicated that the Court had specified that that law and Law No 26.492
were “null and void erga omnes.”139
157. The domestic court concluded in its decision of 2008 that it was a case of homicide
and serious injuries and held that Sgt. Evangelista Pinedo had “acted with gross negligence,”
deciding also that “the investigation did not reveal a decision to kill the passengers,”140 which
the Commission considered an “accidental shot.” However, in the Barrios Altos v. Peru case
this Court held that amnesty laws N° 26.479 and No 26.492 were incompatible with the
American Convention since they did not permit the investigation of acts constituting serious
human rights violations and, therefore, they lacked legal effect for this type of violation and
for “other cases that have occurred in Peru, where the rights established in the American
Convention have been violated.”141
158. The Court concludes that the State did not comply with its obligation to adapt its
domestic legislation, as established in Article 2 of the Convention, in relation to Articles 8 and
25 thereof, due to the application of Amnesty Law No 26.479 in the proceedings against Sgt.
Evangelista Pinedo, to the detriment of Mr. Bejarano Laura and the next of kin of Ms. Tarazona
Arrieta and Ms. Pérez Chávez.
B.2. The domestic normative on the use of force
159. With respect to the violation of the obligation to adapt the domestic laws with reference
to the normative on the use of force, the Court notes that the representatives indicated that
Article 2 of the Convention had been violated for two distinct reasons: a) the lack of a domestic
normative on the use of force at the time of the incident and b) the existence of a domestic
normative after the incident that would be incompatible with the American Convention.
160. With regard to the first point, in order to analyze the compatibility of the domestic
normative with international law when the incident occurred, it is necessary in the first place
to determine the applicable domestic norms, as well as the corresponding norms of
international law and, secondly, to analyze the compatibility of the domestic order with the
international order.
161. The Court recalls that the present case involves a shot fired by a member of the Army
that caused the deaths of Ms. Tarazona Arrieta and Ms. Pérez Chávez and that seriously
wounded Mr. Bejarano Laura (supra para. 1), which were characterized by the domestic court
as crimes of simple homicide and of serious injuries due to gross negligence. Although it was
an operation of the Peruvian Army, the use of arms by the soldiers on the patrol was not
authorized. As was stated, the batallion, of which the accused was a member, was on patrol
with the mission of stopping pedestrians and requesting their identification documents.
Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October
25, 2012. Series C No. 252, para. 283.
139
Decision of the Court of January 21, 2003 (evidence file, folio 242).
Decision of the National Criminal Chamber of July 23, 2008 (evidence file, folios 60 and 61). The court
added that the accused “must assume the risk of the life and physical integrity of the occupants of the microbus, in
manipulating the FAL rifle in the direction of the vehicle, […] reason for which he should not cock his firearm pointing
to the vehicle.”
140
141
Case of Barrios Altos v. Peru. Merits, para. 44.