Practice Relating to Rule 159. Amnesty
Between 1987 and 1993, the Peruvian Congress adopted the Law on Terrorism (1987), the Law on the Mitigation, Exemption or Remission of Punishment of Terrorism (1989), the Decree on Terrorism (1991), the Decree-Law on the Conditions for Mitigation, Exemption, Remission or Reduction of Punishment for Terrorism (1992) and the Decree on Repentance for Terrorism (1993). In principle these laws excluded the commutation of sentences for offences related to acts of terrorism, foreseeing, however, sentence reductions or exemptions if there had been subsequent “repentance”.
In 1996, Peru adopted the Law on Amnesty for Retired Officers of the Armed Forces and the Law on Amnesty for Military and Civil Personnel by which it granted a general amnesty to military and civilian personnel investigated or tried for acts related to insults to the armed forces, disobedience, etc.
Peru’s IHL and Human Rights Manual (2010) states:
The International Criminal Court has material jurisdiction over four groups of crimes: genocide, crimes against humanity, war crimes and aggression. … [T]hese acts are international crimes against human rights … [which] cannot be made the subject of an amnesty or a pardon.
Peru’s Presidential Decree on the National Human Rights Plan (2005) lists as an objective “the modification of domestic law in order to establish the mechanisms necessary to avoid impunity for the commission of international crimes, such as … the nullity of amnesties and pardons”.
Peru’s Code of Military and Police Justice (2006) states: “Criminal action and the penalties for offences defined in this Title [as violations of international humanitarian law] shall not be subject to statutes of limitations. Amnesties, pardons and acts of grace shall not be applicable.”
In 2007, in the Santiago Enrique Martin Rivas case, Peru’s Constitutional Court stated:
28. Amnesty laws cannot be enacted if contrary to international obligations arising from international human rights treaties ratified by the state of Peru.
30. The obligations assumed by Peru by ratifying human rights treaties include the duty to guarantee the rights which … are non-derogable and whose violations the state is internationally obliged to punish. In conformity with Article V of the Preliminary Title of the Code of Constitutional Procedure, this is based on treaties that criminalise acts which under international law cannot be subject of amnesties because they contravene minimum standards for the protection of human dignity.
The Court also stated:
52. … The control of amnesty laws … is based on the assumption that the criminal legislator has acted within the constitutional framework and with all due respect to fundamental rights.
53. This is not the case when it is proved that in exercising its competence to enact amnesty laws, the legislator tried to cover up the commission of crimes against humanity. This is not the case either when the legislator’s aim was to “guarantee” impunity for serious violations of human rights.
In 2006, during the consideration of the fourth periodic report of Peru before the Committee against Torture, a representative of Peru stated:
Progress … [has] been made concerning the use of amnesty laws which precluded prosecution of alleged torturers, as … [has] been demonstrated in the Inter-American Court judgment of 14 March 2001 relating to the Barrios Altos case. The Court … ruled that Acts Nos. 26,479 and 26,492 (relating to amnesty) … [are] incompatible with the American Convention on Human Rights and consequently lacked legal effect. A subsequent judgment by the Peruvian Constitutional Court … extended that ruling to include not only amnesty laws but also any practices intended to hinder investigation or punishment of the violation of the right to life or physical safety. The Supreme Court … set up a specific subdivision to deal with human rights violations in 2004, as … [did] the Public Prosecutor’s Office, and cases that had previously been dismissed under amnesty laws – such as those concerning Barrios Altos, La Cantuta, the Desaparecidos del Santa and the journalist Pedro Yauri – … [were] reopened, thus bringing hope to thousands of victims or their families that justice would be done.