martes, 30 de julio de 2013

Artículo crítico sobre la jurisprudencia de la Corte en materia de amnistías

Este reporte fue elaborado por Oswaldo Ruiz-Chiriboga.

El Center for Civil & Human Rights de la Universidad de Notre Dame publicó un working paper de Luigi Crema, titulado “Are Amnesties Still an Option? A Non-Policy Based Critique of the Inter-American Approach".  Este es el resumen del trabajo:

"Between 2010 and 2012 the Inter-American Court of Human Rights upheld three decisions that evaluated the legitimacy of amnesties under the American Convention on Human Rights by discussing a set of concepts. These concepts have a longstanding tradition, rooted in the precedent of the Inter-American Commission and Court on this issue. The present paper aims to investigate the legal profiles delineated by those institutions to challenge the validity of amnesty laws. In order to do this, it goes back to all the cases in which the question of amnesty legitimacy has been discussed. All the reasoning can be grouped into three major concepts: the legitimacy of the democratic process responsible for the amnesty; the seriousness of the crimes committed and/or the violated rights; and the incompatibility of the amnesty with the Convention. However, two issues emerge: the first is that the effective weight of these factors, and their place in the overall reasoning, are not clearly organized and defined; the second is that the seminal cases decided by the Court were discussed in the unusual circumstances of agreement between the parties and the court. The latest cases that dealt with amnesties in an organic way have seen an impoverishment of the legal reasoning that challenges amnesty laws, reducing it to a strict reading of the Convention. This choice of the Court can be criticized on several grounds, in particular: for not taking into account the possible conformity of an amnesty to the Convention as a necessary step for the full enjoyment of human rights; for having originated in a distorted concept of the nature and goals of law".