A/56/156
regimes, in accordance with the principle of the State’s
continuing responsibility in international law, and
hence for the non-revocation of a self-amnesty law,
promulgated by a previous military dictatorship.28
31. The Special Rapporteur would like to draw the
attention of the General Assembly to a recent
judgement of the Inter-American Court of Human
Rights, Caso Barrios Altos, Chumbipuma Aguirre y
otros v. Perú (14 March 2001). The Court held that
amnesty provisions, prescription and the exclusion of
responsibility which have the effect of impeding the
investigation and punishment of those responsible for
grave violations of human rights, such as torture,
summary, extrajudicial or arbitrary executions, and
enforced
disappearances,
are
prohibited
as
contravening human rights of a non-derogable nature
recognized by international human rights law. The
Court considered the laws in question to be in violation
of the duty on the State to give domestic legal effect to
the rights contained in the Convention (article 2). The
Court held further that the self-amnesty laws lead to
the victims’ defencelessness and to the perpetuation of
impunity, and, for this reason, were manifestly
incompatible with the letter and spirit of the
Convention. The Court concluded by stating that as a
consequence of the manifest incompatibility of the
self-amnesty laws with the Inter-American Convention
on Human Rights, the laws concerned have no legal
effect and may not continue representing an obstacle to
the investigation of the facts of the case, nor for the
identification and punishment of those responsible.
32. The Special Rapporteur would also like to draw
the attention of the General Assembly to the fact that,
in conjunction with the Special Rapporteurs on
extrajudicial, summary or arbitrary executions and on
the independence of judges and lawyers, and with the
Chairman of the Working Group on Enforced or
Involuntary Disappearances, he had sent a
communication to the Government of Peru regarding
the amnesty laws promulgated in June and July 1995.
The Special Rapporteurs considered, inter alia, that
those laws denied the right to an effective remedy for
victims of human rights violations and, therefore, were
contrary to the spirit of various international human
rights instruments.29
33. In the light of the consistent international
jurisprudence suggesting that the prohibition of
amnesties leading to impunity for serious human rights
has become a rule of customary international law, the
Special Rapporteur expresses his opposition to the
passing, application and non-revocation of amnesty
laws (including laws in the name of national
reconciliation, the consolidation of democracy and
peace, and respect for human rights), which prevent
torturers from being brought to justice and hence
contribute to a culture of impunity. As before, he calls
on States to refrain from granting or acquiescing in
impunity at the national level, inter alia, by the
granting of amnesties, such impunity itself constituting
a violation of international law.
E. Prevention and transparency
34. The Special Rapporteur would like to reiterate30
that one of the main factors constituting a condition of
impunity is the prevalence of the opportunity to
commit the crime of torture in the first place. This is
why international standards require that the length of
incommunicado detention be restricted to hours rather
than days, that lawyers, physicians and family
members have prompt access to detainees, and that
detainees have early access to the judicial system. As
stated on several occasions, the Special Rapporteur
also recommends external supervision of all places of
detention by independent officials, such as judges,
prosecutors, ombudsmen and national or human rights
commissions, and by civil society. He also recommends
the video-recording of interrogation sessions and the
presence of the person’s lawyer at such sessions, and
supports monitoring by independent monitoring
institutions, such as the International Committee of the
Red Cross and the Committee on the Prevention of
Torture under the European Convention for the
Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, and the mechanism
contemplated by the draft optional protocol to the
Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, should it be
adopted with at least the powers enjoyed by the two
mechanisms referred to above.
35. The Special Rapporteur is convinced that there
needs to be a radical transformation of assumptions in
international society about the nature of deprivation of
liberty. The basic paradigm, taken for granted over at
least a century, is that prisons, police stations and the
like are closed and secret places, with activities inside
hidden from public view. The international standards
referred to are conceived of as often unwelcome
9
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