Inter-American Court of Human Rights

X

Articles 8(1) and 25 of the American Convention in relation

to Article 1(1) thereof

(Judicial Guarantees and Judicial Protection)
Arguments of the Commission
130. The Commission alleged that the State is responsible for violating Articles 8 and 25 of the Convention, to the detriment of Hugo Muñoz-Sanchez, Bertila Lozano-Torres, Dora Oyague-Fierro, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Felipe Flores-Chipana, Marcelino Rosales- Cárdenas and Juan Gabriel Mariños-Figueroa and his next of kin. In particular, the Commission alleged the following:

1. 
   14 years have elapsed since the events took place, and the State failed to comply with its duty to conduct an effective and proper investigation into the abduction, extra-legal execution and forced disappearance of the victims, thus violating Articles 8, 25 and 1(1) of the American Convention;
   

2. 
   the duty to investigate and punish human rights violations must be seriously undertaken by States and it requires that both the material and intellectual perpetrators of the facts violating human rights be punished. Certainly, failing to fulfill this duty does not only imply that there are no convicted persons in the case or that, despite all efforts, it is impossible to verify the facts;
   

3. 
   in relation to the initial investigations ordered by ordinary courts, the victims' next of kin saw to it that the notitia criminis reached different authorities by filing several complaints, none of which was given the prompt treatment they deserved in light of the seriousness of the facts denounced;
   

4. 
   the egregious clue to the disappearance and execution of the victims required that the prosecutors, police officials and other relevant authorities go to every effort to carry out an effective search and an efficient investigation in proportion to the seriousness and significance of the facts denounced, which did not happen;
   

5. 
   regardless of the lack of competence per se of the military courts to try human rights violations, the grave irregularities committed deliberately and systematically in the instant case by the different State powers to support the intervention of military courts and eventually determine their competence, reveal a policy seeking to obstruct investigations in ordinary courts with the clear purpose of covering up for those responsible. This official policy of concealment and obstruction highlights the existence of a general context of impunity;
   

6. 
   it is clear that, from the high spheres of the State - the Executive, the Congress of the Republic and the Supreme Court of Justice - the available constitutional and legal mechanisms were arranged, with abuse of power, so as to enable the alleged perpetrators and instigators to elude the administration of competent justice, obtain favorable decisions from military courts and then try to ensure, through amnesty laws, the impunity of physical perpetrators;
   

7. 
   military courts do not guarantee the necessary independence and impartiality to try cases involving members of the Armed Forces. Thus, characteristics like hierarchical subordination and the fact that military judges are on active duty, make it impossible to regard military courts as a true judicial system, as was verified by the Court in the Case of Durand and Ugarte v. Perú and has been acknowledged within domestic jurisdiction by the Constitutional Court;
   

8. 
   the fact that the military judges were prejudiced when trying the events of La Cantuta was later confirmed by the proceedings brought against them in ordinary courts;
   

9. 
   the prosecution of those responsible by military courts prevented the alleged victims' next of kin from being heard by a competent court. The investigation of the case by criminal military courts also stopped the next of kin from having a fair trial and exercising an effective judicial remedy to duly try and punish those responsible. The same is true for intellectual perpetrators, who, despite not being favored by amnesty laws, were not held responsible for the facts pursuant to a resolution ordering dismissal without trial, rendered by a military court without taking into account the conclusive evidence showing their participation in the planning, organization and coordination of the crimes;
   

10. 
    granting jurisdiction to criminal military courts to hear the crimes perpetrated by members of the Army, who were already being investigated by regular criminal courts, entailed lack of respect for the principle of exceptionality and the restrictive nature of military courts, which constitutes a violation of the principle of competent tribunal, and consequently, of the right to due process and a fair trial;
    

11. 
    some of the investigations initiated by the State after Mr. Alberto Fujimori left power have been conducted very slowly, considering that six years have elapsed since the fall of that government and more than five years since the State pledged to take measures to restitute violated rights and/or make reparations for the damage caused in the La Cantuta case. The right to a fair trial is not exhausted by the conduct of internal proceedings, it must also ensure a decision within a reasonable term, to last until an unappealable judgment is rendered, including the whole proceedings and the potential trial remedies that could be filed. In cases such as the instant case, authorities must act ex officio and launch the investigation, without leaving this burden to the initiative of the next of kin;
    

12. 
    besides, these investigations have not included all those allegedly responsible for the events generating the international responsibility of the State. The State has resorted to the figure of res judicata to avoid punishing some of the alleged intellectual perpetrators. This constitutes an infringement of the American Convention, inasmuch as States cannot apply domestic laws or provisions to escape the duty to investigate and punish those responsible for violations of the Convention. The reopening of investigations within domestic jurisdiction would not affect in any way whatsoever the non bis in idem principle embodied in Article 8(4) of the American Convention, since the res judicata principle never applied, because the alleged perpetrators were tried by a court which, under Article 8 of the Convention, was not competent, independent and impartial and did not satisfy the requirements of competent tribunal. This is so because the requirement of a previous acquittal is not met when said judgment lacks legal effects for standing in open contradiction to international duties. Accordingly, the Peruvian State must conduct a new trial with all the guarantees of due process in order to rectify the structural deficiencies of previous military proceedings, and
    

13. 
    the infringement of Articles 1, 8(1) and 25 of the Convention was effected when the State failed to conduct new investigations and domestic proceedings with enough diligence as to offset the concealment that prevailed for almost a decade, during Alberto Fujimori's administration. In this sense, the Commission insists again on the fact that the State is obliged to carry out a criminal investigation and apply criminal penalties to those responsible for the violations, also as a way to uphold the right of the victims' next of kin to know the truth.
    

Arguments of the representatives
131. In their brief of requests, arguments and evidence, the representatives concurred with the arguments of the Commission regarding Articles 8 and 25 of the Convention in relation to Article 1(1) thereof. They added the following arguments:

1. 
   the instant case clarifies one of the distinctive features of Fujimori's regime: the control and manipulation of the legislative and judicial powers to hide the truth about egregious human rights violations and secure the impunity of those responsible;
   

2. 
   through both de facto and legal mechanisms, Perú obstructed the investigations that were initiated to determine the legality of the victims' detentions and to investigate the facts and identify those responsible for them. As part of those impunity structures, self-amnesty laws were enacted, which precluded the investigation, persecution, capture, prosecution and punishment of those responsible for the facts denounced;
   

3. 
   as the Court itself has held in the Case of the Pueblo Bello Massacre, in cases involving extra-legal executions, the State must conduct, ex officio and without delay, a serious, impartial and effective investigation to guarantee the infringed right;
   

4. 
   although the victims' next of kin filed three petitions for habeas corpus immediately after the detention of the victims, the proceedings that were opened did not respect the judicial guarantees established in Article 8(1) of the Convention, nor were they effective under Articles 7(6) and 25(1) of said treaty, due to the non-observance of the due diligence duty by the intervening authorities. The judges hearing in the respective habeas corpus proceedings distorted the surveillance role that should be played by the Judiciary in a State in which the rule of law prevails, and failed in duly grounding their decisions. Therefore, the State is responsible for failing to guarantee the victims' next of kin right to an effective recourse substantiated by independent and impartial bodies, and, consequently, for violating the rights enshrined in Articles 7(6), 8(1) and 25(1) of the Convention, to the detriment of the alleged victims and their next of kin;
   

5. 
   criminal comparative law and international criminal law have developed several concepts regarding the different ways of participating in the commission of a crime, which shed light on how to interpret the compliance with the duty to investigate, prosecute and punish all forms of participation in the commission of crimes. The State has neither investigated nor submitted all persons involved in the commission, planning, instigation and concealment of the facts to domestic judicial authorities, nor those who ordered the crimes, facilitated them through cooperation or were accomplices. Those who, by virtue of a subordination relationship, knew or should have known that their subordinates were going to commit or had committed these crimes, and took no measures to stop them or punish them have not been tried either. The Court could ease the work of justice regarding the events at La Cantuta by further developing the degrees of criminal participation involved in the duty to investigate and punish all material and intellectual perpetrators in a case in which the state apparatus was used and arranged to commit egregious human rights violations;
   

6. 
   the State has not met the required due diligence standard in the criminal investigations of the instant case. Besides an unjustified delay in the accurate elucidation of the facts, the production of crucial evidence has also been subject to delay and negligence, as is true for the DNA analysis of the bone remains that were found during the early 90's;
   

7. 
   two reasons justify the lack of competence of the CSJM (Supreme Council of Military Justice) in the prosecution and punishment of perpetrators and instigators: firstly, the facts being tried were not "military crimes or offenses" but ordinary felonies, and secondly, in the specific case of Vladimiro Montesinos, he was not a member of the military in active duty. The undue exercise of jurisdiction by the military courts in the prosecution of the perpetrators of the facts denounced was possible pursuant to applicable domestic legislation which established a wide scope of subject-matter and personal jurisdiction. In this sense, the above mentioned norms infringed Article 8(1) of the American Convention in relation to Articles 1(1) and (2) thereof;
   

8. 
   with the incorporation of amnesty laws to its legal system, and during the time when they were applied and had effects, the State violated the rights to a fair trial (Article 8(1)) and to judicial protection (Article 25), in relation to the duties of protection and guarantee (Article 1(1)) and the duty to adapt domestic legislation to conform to international standards (Article 2), to the detriment of the victims and their next of kin, and
   

9. 
   the State has violated the rights embodied in Articles 8(1) and 25(1) of the Convention, in relation to Articles 1(1) and 2 thereof, to the detriment of the victims and their next of kin, inasmuch as it failed to provide effective judicial remedies substantiated by competent, independent and impartial judges within a reasonable term and to adapt domestic provisions to conform to the principles of Articles 8(1) and 25(1) of the Convention, and, particularly, in view of the fact that it approved, applied and kept in force up to the present a norm (the Military Code of Justice) which does not clearly and accurately specify who may be tried by military courts.
   

Arguments of the State
132. The State partially acquiesced to the alleged violation of Articles 8 and 25 of the Convention (supra paras. 45, 46 and 53) and remarked, inter alia, that:

1. 
   it does neither deny the occurrence of the facts nor that they took place due to acts or omissions of State representatives (public authorities or officials), which incriminates the State. However, it explains the context in which the State responded to the impunity that prevailed until late 2000, when the State modified its behavior following the democratic transition and the reinstatement of the Rule of Law in the country;
   
2. 
   immediately after the fall of former President Alberto Fujimori, the State adopted concrete measures to reestablish fluent relations with the inter-American protection system, strengthen the Rule of Law and avoid impunity for crimes against human rights and to the prejudice of public property;
   
3. 
   these specific facts and the reinstitutionalization of the country have enabled both the Attorney General´s Office and the Judiciary to restart the investigations and conduct proceedings, pursuant to the evidence gathered, to reverse the impunity that has prevailed for numerous and egregious human rights violations;
   
4. 
   the Transition Government created the Comisión de la Verdad (Truth Commission) in order to elucidate the processes, facts and responsibilities of terrorist violence and human rights violations perpetrated between May 1980 and November 2000, attributable both to terrorist organizations and State agents. This Commission issued a Final Report by late August 2003, which constitutes a step forward in the elucidation of the facts, the vindication of all victims of violence and the recovery of historical memory regarding the events that took place in Perú for two decades. It has also proved useful for the investigations of competent bodies into egregious human rights violations, including those perpetrated at La Cantuta;
   
5. 
   at present, two criminal proceedings are dealing with the facts at La Cantuta pursuant to Peruvian domestic law, and there is an ongoing preliminary investigation into the intellectual perpetrators of the same facts. It should be emphasized that the criminal proceedings being held at the Supreme Court of Justice have involved a former President of the Republic, that is to say, the highest authority of the State, which is a signal that the work of national courts is serious and significant;
   
6. 
   the State admits that those who are being prosecuted or investigated have not been convicted, but it also acknowledges that the duty to investigate and punish is a duty pertaining to means and not to outcome, as established in the jurisprudence of the Inter-American Court in the cases of Velásquez-Rodríguez, Godínez-Cruz, Caballero-Delgado and Santana and Baldeón-García. The State's decision to bring two criminal proceedings and launch a preliminary investigation should not be regarded merely as a formality doomed to failure but as a serious and firm process to reverse the impunity that authorities attempted to institutionalize in Perú during the past decade;
   
7. 
   the Commission's request to conduct a complete, impartial, effective and prompt investigation into the facts and people involved in the undue interventions of different state bodies is not opposed by the State: it coincides with its efforts to investigate the facts and avoid impunity. The criminal case brought against the material perpetrators of the facts has reached the oral proceedings stage, that is, it is substantively advanced;
   
8. 
   as regards the obstruction of investigations, the State politely requests the Court to assess the information submitted in relation to the fact that Perú, through competent and fully independent bodies, has already adopted effective measures to punish those responsible for obstructing the investigations of the instant case at a domestic level;
   
9. 
   in a State in which the rule of law prevails, the Executive Power cannot replace nor give orders or directives to the Attorney General´s Office or the Judiciary. These autonomous entities have oversight bodies belonging to a constitutional body, the National Council of the Magistracy, with functional jurisdiction over the matter, pursuant to the Constitution and the laws;
   
10. 
    the slowness of the Peruvian Judiciary in the investigation and prosecution of all those responsible for these facts has been criticized, and said criticisms are partly justified, but since our countries' judicial systems respect the due process and the right to a fair trial, the accused parties are allowed to fully exercise their right to defend themselves. This is one of the reasons why the whole process offers and faces successive delays. It should also be explained to the Court that the logistic capacity of the State upon beginning to investigate and prosecute many former high-ranking State officials and other citizens for acts of corruption and human rights violations has led to a situation in which the judicial scenario offering the best security conditions is saturated and thus, for example, in the instant case and particularly in internal venue, judicial proceedings are scheduled to be conducted only once a week. On some occasions, due to incidents or arrangements, with the good or bad faith (which we shall not proceed to assess now) of the accused and the defense counsel, proceedings face unwanted delays;
    
11. 
    regarding the punishment of instigators, the State clarifies that both the criminal proceedings at the Supreme Court involving former President Alberto 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;
    
12. 
    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;
    
13. 
    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;
    
14. 
    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
    
15. 
    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:
a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;
b) to develop the possibilities of judicial remedy; and
c) to ensure that the competent authorities shall enforce such remedies when granted.

1. 
   Initial Investigations in the Ordinary Courts; Referral of Investigations to Military Courts and Lack of Jurisdiction of Military Courts to Investigate and Prosecute Serious Human Rights Violations
   

135. After the complaints filed by the victims' next of kin, the APRODEH (Association for Human Rights) and the Chancellor of the University of La Cantuta, an investigation was undertaken in a regular court in August 1992, specifically by the Octava Fiscalía Provincial en lo Penal (Eighth Provincial Criminal Prosecutor’s Office (supra para. 80(21) to 80(23)). In addition, after illegal common graves were found in Cieneguilla and Huachipa, the Décimo Sexta Fiscalía Provincial Penal de Lima (Sixteenth Provincial Criminal Prosecutor’s Office of Lima) undertook parallel investigations in July 1993 (supra para. 80(30) and 80(31)). During the exhumation and identification activities performed by the Prosecutor’s Office, there were several missteps concerning the identification of other human remains found. Moreover, nothing else was done to find the remains of the other victims.

136. In the first investigation undertaken in the common criminal court, the prosecutor who replaced the appointed prosecutor refrained from continuing to conduct the investigation because the Sala de Guerra of the CSJM (Warfare Division of the Supreme Military Justice Tribunal) "had taken jurisdiction over the same events as those in this complaint.” Such replacements, carried out in the context of a restructuring of the Judicial Branch undertaken from April 1992, described by the Commission for Truth and Reconciliation as a “a blatant case of intrusion and control by the political power,”¹¹¹ were part of a scheme aimed at preventing alleged perpetrators and instigators from being tried by competent courts, in the context of impunity described above (supra para. 81).
137. The military courts had started to conduct investigations on their own in April 1993, in parallel to those undertaken by the ordinary courts (supra para. 80(42) and 80(43)). As a result, the CSJM (Supreme Council of Military Justice) entered into a “jurisdiction battle” against the ordinary courts, and when the Sala Penal de la Corte Suprema de la República (Criminal Chamber of the Supreme Court of Perú) initially resolved it, the CSJM declared itself in disagreement with the decision to refer the prosecutions against the military officers identified as responsible to the ordinary courts (supra para. 80(48)). In view of the foregoing, the so-called “Congreso Constituyente Democrático” (Democratic Constitutional Congress) passed a law that modified the required majority to settle jurisdiction battles. Based on that overt legal manipulation orchestrated by the three branches of government in order to favor the referral of investigations to the military courts,¹¹² a few days later the Sala Penal of the Corte Suprema (Criminal Chamber of the Supreme Court) ordered that the case be referred to the CSJM (supra para. 80(50) and 80(51)).
138. In other words, from February to 1994 until the year 2001, criminal courts were prevented from hearing the case. In May 1994, eight Army officers were convicted by the military courts, and in August that year, three persons accused of instigating the crimes were discharged (supra para. 80(55) and 80(57)).
139. The Court must therefore determine whether the referral of the investigations to the military courts and the criminal proceedings carried out by them conformed to the terms of the American Convention, in terms of the nature of the military judges and the crimes in the instant case.
140. Article 8(1) of the American Convention provides that every person has the right to a hearing by a competent, independent and impartial judge or tribunal. Thus, this Court has held that “all persons subject to trial of any kind before a State body must have the guarantee that such body is impartial and acts within the procedural scope prescribed to hear and decide the case submitted to it.”¹¹³
141. In Perú, at the time of the events, the military courts were hierarchically subordinated to the Executive Power¹¹⁴ and the military judges in active duty who performed judicial functions,¹¹⁵ which inhibited, if not prevented, the military judges from making objective and impartial judgments.¹¹⁶ By the same token, the Court has taken into account that “the military men who were members of these tribunals were, at the same time, members of the armed forces in active duty, a requirement to be part of military tribunals[, and were thus] unable to issue an independent and impartial judgment”¹¹⁷
142. The Court has established that in a democratic State, the jurisdiction of military criminal courts must be restrictive and exceptional, and they must only judge military men for the commission of crimes or offences that due to their nature may affect any interest of military nature.¹¹⁸ In this regard, the Court has held that “when the military courts assume jurisdiction over a matter that should be heard by the ordinary courts, the right to the appropriate judge is violated, as is, a fortiori, due process, which, in turn, is intimately linked to the right of access to justice”¹¹⁹ For these reasons and because of the nature of the crime and the legally protected interest wronged, the military criminal courts have no competent jurisdiction to investigate or prosecute and punish the authors of these events.
143. The Criminal Chamber of the Peruvian Supreme Court settled the jurisdiction battle in favor of the military courts, which failed to meet the jurisdiction, independence and impartiality criteria discussed above and convicted some military officers for the events in the case, discharged some others and applied the amnesty laws (supra para. 80(55) and infra para. 188 and 189). In the context of impunity described earlier (supra para. 81, 92, 93, 110 and 136), together with the lack of jurisdiction to investigate this type of crimes by the military courts, it is evident for this Court that, as a result of the manipulation of legal and constitutional devices by the three branches of Government, the investigations were fraudulently referred to the military courts, which for many years hindered the investigations in the ordinary courts, which were the courts with competent jurisdiction to carry out the investigations, with the aim of securing impunity for those responsible.
144. However, it is worth noting that the State has recognized, both in the proceedings before this Court and in orders and decisions issued by its domestic courts in this and “other cases” (supra para. 41, 42, 44 and 91), the partiality of the judges of the criminal courts in the trial of the La Cantuta events; the fake prosecutions instituted against several people in order to prevent them from being tried by the ordinary courts and thus secure their impunity; and the irregularities in the proceedings. Thus, for example, in deciding over a writ of amparo [enforcement of the constitutional guarantee for protection of civil rights] filed in another case by former military officer Santiago Martín Rivas, one of the defendants convicted by the military courts (supra para. 80(54)), the Peruvian Constitutional Court held:
[…] in view of the circumstances of the case, there is evidence that the criminal proceedings instituted in the military courts were aimed at preventing the petitioner from being held responsible for the acts he is accused of.
Such circumstances are connected to the existence of a systematic plan to promote impunity in human rights violations and crimes against humanity, particularly the acts committed by the members of the Colina Group, of which the petitioner is a member.

 

Some examples of such systematic plan are:

 

[…] (i) The deliberate trial of common crimes by criminal courts, as discussed earlier.

 

[…] (ii) The issuance of amnesty laws 26,479 and 26,492 in that period. Even though these did not apply to the first criminal trial of the petitioner, taking into account the context in which they were issued and the aim they pursued, the Constitutional Court considers that it clearly shows that the government had no will to investigate and apply punishments that would fit the crimes committed by those responsible for the events known as “Barrios Altos,”¹²⁰

145. The foregoing considerations necessarily lead to the conclusion that a criminal trial in the ordinary courts was the appropriate means to investigate and eventually prosecute and punish those responsible for the events in the instant case; therefore, the irregular referral of investigations to the criminal courts and the resulting proceedings conducted against the alleged perpetrators and instigators constitute a violation of Article 8(1) of the Convention with relation to Article 1(1) thereof, to the detriment of the victims’ relatives.

2. 
   The New Investigations and Criminal Proceedings Conducted in the Ordinary courts
   

146. In the instant case, after the fall of ex President Alberto Fujimori Fujimori’s regime and the subsequent transition process starting in 2000, new official action was taken in the ordinary criminal courts. However, no steps were taken in the criminal proceedings or in other instances to determine the fate of the victims or to search for their remains. As regards those investigations and their status at the time of this Judgment, the Court notes that at least five new proceedings have been instituted, which have had various partial results, according to the information on the record of the case (supra para. 80(67) to 80(92)).

147. As regards the effectiveness of the new investigations and criminal proceedings for establishing the truth of the facts and tracking down and eventually arresting, prosecuting and punishing the perpetrators and masterminds, the Court recognizes that such investigations and proceedings have been aimed at the then highest ranking government officers, from the former President to high military and intelligence ranks, as well as several former members of the Colina Group. However, as discussed earlier (supra para. 146), for several reasons the outcome of the proceedings have been quite partial as regards bringing charges and identifying and eventually convicting those responsible. The absence of one of the main defendants, former President Alberto Fujimori, who was initially granted asylum in Japan and is currently arrested in Chile, determines a major part of the impunity. This latter aspect will be dealt with below (infra para. 158 to 160).

148. Furthermore, the Court views favorably the trial and punishment of persons who, in the military courts, hampered the investigations and formed part of the impunity scheme operating during the investigations conducted until 2000 (supra para. 80(71) to 80(74)).
149. As regards the length of investigations and trials, this Court has stated that the right to justice is not limited to the formal institution of domestic proceedings, but it also involves the assurance within reasonable time of the right of alleged victims or their relatives to have every necessary step taken to know the truth and punish those responsible for the events.¹²¹ Certainly the Court has established, regarding the reasonable time principle set out in Article 8(1) of the American Convention, that three aspects must be taken into account to determine the reasonableness of the time within which a case is carried out. (a) the complexity of the matter, (b) the procedural activities carried out by the interested party, and (c) the conduct of judicial authorities.¹²² However, the appropriateness of applying these criteria to determine the reasonableness of the length of a proceeding depends of the circumstances of each case.¹²³ Furthermore, in such cases, the State’s duty to wholly serve the purposes of justice prevails over the guarantee of reasonable time. As regards the new investigations and prosecutions carried out since the start of the transition, even though the matter is clearly complex due to the nature of the events, the number of victims and defendants and the delays caused by them, they cannot be considered as separate from the earlier period. The obstruction of the proceedings has led investigations and prosecutions to last over 14 years from the perpetration of the events that involved the execution or forced disappearance of the victims, which altogether has by far exceeded the term that could be considered reasonable for these purposes.
150. Regarding to the scope of these new investigations, no new proceedings were instituted in the ordinary courts concerning persons convicted by military courts as perpetrators of the crimes, save for certain acts of one person initially prosecuted by such courts. There is no showing that said sentences, which became effective again after the CSJM’s decision of 2001, have been served. Moreover, in spite of the complaint filed by the Procuraduría Ad Hoc (Ad Hoc Prosecutor’s Office) against three of the alleged instigators —to wit, Hermoza Ríos, Montesinos and Pérez Documet, who were discharged by the military courts (supra para. 80(82))—, no formal charges have been brought against them in the ordinary courts. A motion for nullity of the prosecutions conducted in the military courts filed with the CSJM by two of the victims' next of kin was dismissed in July 2004 (supra para. 80(65) and 80(66)). This means that, in a way, the proceedings in the military courts have continued to hamper the investigation and eventual trial and punishment of all those responsible in the ordinary courts.
151. In this connection, the Commission and the representatives have asserted that the State has relied on the concept of double jeopardy to avoid punishing some of the alleged instigators of these crimes; however, double jeopardy does not apply inasmuch as they were prosecuted by a court who had no jurisdiction, was not independent or impartial and failed to meet the requirements for competent jurisdiction. In addition, the State asserted that “involving other people who might be criminally liable is subject to any new conclusions reached by the Ministerio Público [General Attorney’s Office] and the Judiciary in investigating the events and meting out punishments,” and that “the military court’s decision to dismiss the case has no legal value for the General Attorney's Office's preliminary investigation. That is, the double jeopardy defense does not apply.”
152. This Court had stated earlier in the Case of Barrios Altos that
This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.¹²⁴
153. Specifically, in relation with the concept of double jeopardy, the Court has recently held that the non bis in idem principle is not applicable when the proceeding in which the case has been dismissed or the author of a violation of human rights has been acquitted, in violation of international law, has the effect of discharging the accused from criminal liability, or when the proceeding has not been conducted independently or impartially pursuant to the due process of law.¹²⁵ A judgment issued in the circumstances described above only provides "fictitious" or "fraudulent" grounds for double jeopardy.¹²⁶
154. Therefore, in its complaint against the alleged instigators of the crimes (supra, para. 80.82), who were discharged by the military courts, the Procuraduría Ad Hoc (Ad Hoc Prosecutor’s Office) deemed it inadmissible to consider the order for dismissal of the case issued by the military judges in the course of a proceeding aimed at granting impunity as a legal obstacle for conducting prosecutions or as a final judgment, since the judges had no jurisdiction and were not impartial, and thus the order may not provide grounds for double jeopardy.
155. In close connection with this, the representatives have requested, based on several sources of international law, particularly statutes and international criminal court decisions concerning the requirements to attribute criminal liability to superiors for the acts of their subordinates, that the Court “ascertains the degrees of involvement in the serious violations of human rights pursuant to the conventional obligation to punish the perpetrators and instigators of such acts.” In its answer to the application, the State pointed out that it “understands that the duty to administer justice involves investigating and punishing any individual who had a criminal conduct in the events of La Cantuta. In this respect, the State will hear and abide by the Court’s decision as regards the investigation, identification and punishment of those responsible for issuing orders to commit international crimes such as those involved in the instant case." In its final arguments, the State asserted that the events recognized "constitute wrongful acts under international law [and] crimes under domestic law and amount to international crimes that the State must prosecute."
156. In this regard, it is worth noting that the Court is not a criminal court with power to ascertain liability of individual persons for criminal acts.¹²⁷ International liability of the States arises automatically with an international wrong attributable to the State and, unlike under domestic criminal law, in order to establish that there has been a violation of the rights enshrined in the American Convention, it is not necessary to determine the responsibility of its author or their intention, nor is it necessary to identify individually the agents who are attributed with the violations.¹²⁸ In this context, the Court ascertains the international liability of the State in this case, which may not be made modeled after structures that belong exclusively to domestic or international criminal law, which in turn defines responsibility or individual criminal liability; nor is it necessary to define the scope of action and rank of each state officer involved in the events.
157. Thus, as regards the requests of the representatives and the State, it must be noted that the events have been described before this court by the Commission for Truth and Reconciliation, domestic judicial organs and the State’s representatives as crimes against humanity, and it has been established that these were perpetrated in the context of a generalized and systematic attack against sectors of the civilian population. As a result, the duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important in view of the seriousness of the crimes committed and the nature of the rights wronged; all the more since the prohibition against the forced disappearance of people and the corresponding duty to investigate and punish those responsible has become jus cogens.¹²⁹ The impunity of these events will not be eradicated without ascertaining general liability of the State and individual criminal liability of its agents or other individuals, both of which complement each other.¹³⁰ Therefore, suffice it to repeat that the investigations and prosecutions conducted on account of the events in this case warrant the use of all available legal means and must aim to determine the whole truth and to prosecute and eventually capture, try and punish all perpetrators and instigators of the acts.

3. 
   Duties under International Law Dealing with Inter-state Cooperation Concerning Investigation and Extradition of Alleged Authors of Serious Human Rights Violations
   

158. Extradition proceedings have been instituted against one of the main defendants in connection with the events in the instant case¹³¹ (supra para. 80(86) to 80(92) and 147).

159. The Court has recognized Perú’s efforts put into the investigations conducted after the transition (supra para. 146 to 150). The Court likewise commends the State on the fact that it is fulfilling its obligation —deriving from its duty to investigate— to request and promote, by the appropriate judicial and diplomatic means, the extradition of one of the main defendants.
160. As pointed out repeatedly, the acts involved in the instant case have violated peremptory norms of international law (jus cogens). Under Article 1(1) of the American Convention, the States have the duty to investigate human rights violations and to prosecute and punish those responsible. In view of the nature and seriousness of the events, all the more since the context of this case is one of systematic violation of human rights, the need to eradicate impunity reveals itself to the international community as a duty of cooperation among states for such purpose. Access to justice constitutes a peremptory norm of International Law and, as such, it gives rise to the States’ erga omnes obligation to adopt all such measures as are necessary to prevent such violations from going unpunished, whether exercising their judicial power to apply their domestic law and International Law to judge and eventually punish those responsible for such events, or collaborating with other States aiming in that direction. The Court points out that, under the collective guarantee mechanism set out in the American Convention, and the regional¹³² and universal¹³³ international obligations in this regard, the States Parties to the Convention must collaborate with one another towards that end.¹³⁴
* * *
161. It has been proven that, even though the criminal proceedings were reopened in order to solve the case and partial results have been achieved, such proceedings have not been efficient to prosecute and eventually punish all those responsible (supra para. 146 to 150). The Court thus considers that the State is responsible for the violation of the rights embodied in Articles 8(1) and 25 of the American Convention in relation with Article 1(1) thereof, to the detriment of Antonia Pérez-Velásquez, Margarita Liliana Muñoz-Pérez, Hugo Alcibíades Muñoz-Pérez, Mayte Yu yin Muñoz-Atanasio, Hugo Fedor Muñoz-Atanasio, Carol Muñoz-Atanasio, Zorka Muñoz-Rodríguez, Vladimir Ilich Muñoz-Sarria, Rosario Muñoz-Sánchez, Fedor Muñoz-Sánchez, José Esteban Oyague-Velazco, Pilar Sara Fierro-Huamán, Carmen Oyague-Velazco, Jaime Oyague-Velazco, Demesia Cárdenas-Gutiérrez, Augusto Lozano-Lozano, Juana Torres de Lozano, Víctor Andrés Ortiz-Torres, Magna Rosa Perea de Ortiz, Andrea Gisela Ortiz-Perea, Edith Luzmila Ortiz-Perea, Gaby Lorena Ortiz-Perea, Natalia Milagros Ortiz-Perea, Haydee Ortiz-Chunga, Alejandrina Raida Cóndor-Saez, Hilario Jaime Amaro-Ancco, María Amaro-Cóndor, Susana Amaro-Cóndor, Carlos Alberto Amaro-Cóndor, Carmen Rosa Amaro-Cóndor, Juan Luis Amaro-Cóndor, Martín Hilario Amaro-Cóndor, Francisco Manuel Amaro-Cóndor, José Ariol Teodoro-León, Edelmira Espinoza-Mory, Bertila Bravo-Trujillo, José Faustino Pablo-Mateo, Serafina Meza-Aranda, Dina Flormelania Pablo-Mateo, Isabel Figueroa-Aguilar, Román Mariños-Eusebio, Rosario Carpio Cardoso-Figueroa, Viviana Mariños-Figueroa, Marcia Claudina Mariños-Figueroa, Margarita Mariños-Figueroa de Padilla, Carmen Chipana de Flores and Celso Flores-Quispe.