The judges continue to say no to the Amnesty Law. The National Criminal Judge Jorge Chávez Tamariz He denied the request for the defense of General EP in retirement, Petronio Baltazar Fernández Dávila Carnero to apply the law of amnesty in the process that is followed by forced disappearance of people, with the aggravating act against humanity.
The magistrate, the second of the National Superior Court of Specialized Criminal Justicewhich refuses to apply forgiveness of the State in a process against the human Political Constitution of 1993 on a law contrary to international law and law
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“The right of amnesty (forgiveness of crimes) arranged by Parliament and promulgated by the president of the Republic, is anticonventional and does not exceed other rights faced as the right to truth, resolved by the Inter -American Court of Human Rights In the Barrios Altos v. Peru of 2001, the right to jurisdictional protection Effective of article 139, subsection 3 of the and of article 44 of the Political Constitution that imposes on the State the duties as guaranteeing the full validity of human rights, coupled with the exercise of criminal prosecution that is competent in monopoly to the Public Ministry, ”argues the magistrate.
Notes “that during procedural debates he has manifested by the defense lawyer of Fernández Dávila Carnero that there is an affectation of the right of effective jurisdictional protection for the time elapsed in investigation, however, as stated, we are, before a crime against humanity that is the forced disappearance in which jurisdictional protection is in favor of the victims as they are a permanent crime in time”
In the same paragraph of the Judicial Resolution, the magistrate notes that “the amnesty acts of the Legislative cannot be contrary to the guarantees required by the Constitution as the defense of the human rights of article 44 of the Constitution and the control of conventionality of the Inter -American Court of Human Rights, through the jurisprudence applicable to the Peruvian State that voluntarily signed the American Convention on Human Rights Peru is not an island, but subject to the regional human rights system”
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Chávez Tamariz explains that diffuse control is a legal figure that Peru adopted from the jurisprudence of the United States based on the Marburi v. Madison A figure that is applied to the Fernández Dávila Carnero case “Based on the 1993 Constitution and the I Plenary Jurisdictional Matters of the Constitutional Law Rooms of the Supreme Court of Justice of December 2015. This means that its decision will be reviewed by the aforementioned Chamber of the highest judicial instance of the country.
Likewise, it informs that diffuse control “constitutes a power that is based on the separation of powers that focuses on a constitutional democracy through the constitutional check and balance“, Who lags the thought of Montesquieu that the judge” is simply the mouth that repeats the words of the law “, because the meaning of jurisdiction can be none other than to procure do justice through law”
General Petronio Fernández Dávila Carnero is attributed the forced disappearance of the peasant, Jorge Gutiérrez Quinteroin his status as general commander of the Second Infantry Division of Ayacucho and Military Political Chief of the Security Subzone No. 5, from January 0 to December 31, 1990, being in charge of the contrasubversive battalion “Los Cabitos N ° 51 – Huanta, in the Castropampa barracksin Ayacucho.
Jorge Gutiérrez Quintero was arrested by a military patrol on January 25, 1990, while allegedly sympathizing with the terrorist group Luminous Path, to be taken to the military barracks for the respective investigation. Gutiérrez was handcuffed and his cohabiting and his two minor children were locked in a room with insurance on the outside so that they could not protest. Jorge Gutiérrez’s father and his son went the day after the barracks to learn about the reasons for the arrest. The military denied him but before the insistence, Commander Carlos Romero Bartesaghi acknowledged the arrest of the peasant.
The head of the Castropampa Base, on February 9, 1990, issued a trade saying that Jorge Gutiérrez had been released. But, his relatives never saw him again. Jorge Gutiérrez Quintero remains to this day in disappeared condition.
