Con ocasión de la resolución emitida por la Corte IDH en relación a la supervisión de la sentencia del caso Barrios Altos y el indulto humanitario a Alberto Fujimori ex dictador y responsable político, debemos precisar que la Corte IDH no ha dispuesto literalmente, la nulidad del indulto humanitario ó que se deje sin efecto el mismo ó talvez disponer que se emita una nueva resolución suprema pero motivada, que fueron algunos de los escenarios posibles, pensados y discutidos; no lo ha hecho y no es por el supuesto que no tenga competencia para hacerlo, porque la Corte IDH sí tiene competencia para resolver y pronunciarse sobre las medidas que adopte un Estado en el marco en el marco de supervisión de sentencia, como es el caso Barrios Altos y; atendiendo en el contexto en que se dio el controvertido indulto en el marco de una negociación política para no vacar al entonces presidente de la República PPK y, estando vigente la supervisión de sentencia del caso Barrios Altos por parte de la Corte.
El indulto bien podría ser una medida que cuestione la Corte a posteriori toda vez, que el indultado es nada menos que el autor mediato y condenado por las graves violaciones de derechos humanos ocurridas en Barrios Altos. Por eso “no te agarro ahora pero sí después”.
Lo que ha dejado en claro la Corte IDH, es que no se pronuncia sobre los requisitos jurídicos del indulto humanitario porque entiende que existe dentro de la jurisdicción interna mecanismos jurídicos como es el control constitucional para analizar los cuestionamientos jurídicos; y ésta hipótesis lo ha acogido en base a la propia declaración de los representantes del Estado peruano cuando se argumentó que una vez que se ha concedido el indulto, el Poder Ejecutivo no lo puede cambiar porque forma parte de una decisión del Presidente de la República en el marco de las facultades constitucionales que le otorga la ´propia Constitución; y quien tenga legitimidad para obrar, podrían interponer procesos constitucionales. El propio Estado peruano le ha dado a la Corte IDH, los argumentos procedimentales para la revisión del indulto.
La Corte IDH dejó constancia en su resolución, de la identificación de una falta de motivación en la resolución suprema que concede el indulto, contradicciones entre los certificados médicos. En razón a ello, la Corte IDH le ha solicitado al Estado y a los representantes de las víctimas remitir los avances del control constitucional respecto a la revisión de indulto humanitario a efectos de que no contravenir con la obligación de investigar, procesar y sancionar a los responsables de violación de derechos humanos; una de las razones por la cual la Corte IDH no ha dado por concluido o archivado, la supervisión de la sentencia del caso Barrios Altos, pues también le ha dicho al Estado peruano que no ha cumplido con sus obligaciones internacionales, lo cual es un mal precedente.
Se sienta un mal precedente porque la conducta del Estado no es coherente, porque primero el Perú ha asumido un liderazgo en el tema del restablecimiento de la democracia en Venezuela y creándose el Grupo de Lima para tal finalidad; es miembro del Consejo de Seguridad y ha presidido una sesión en el mes de abril, si bien el consejo de seguridad no es comisión ni corte de derechos humanos propiamente dicho; sin embargo en las temáticas paz y seguridades internacionales está presente la visión cosmopolita de los derechos humanos, pues ahí donde hay conflictos internacionales o internos los derechos humanos siempre estarán presentes solo que es aplicado en contextos armados.
Asimismo, el Perú ha aprobado en forma reciente el Examen Periódico Universal (EPU) procedimiento de control político adscrito al Consejo de Derechos Humanos de las Naciones Unidas, instancia en la que los Estados miembros son evaluados en sus políticas públicas de derechos humanos.
Entonces, nos preguntamos ¿Por qué no se ha cumplido con lo ordenado por la Corte IDH? Pues las sentencias de la Corte son vinculantes para el Estado, de obligatorio cumplimiento, por lo que se practica un doble discurso y eso es lo que daña la democracia en el Perú. Es decir, se proyecta una imagen hacia afuera de protección y respeto por los derechos humanos y ¿hacia adentro qué?. El Estado queda obligado a cumplir lo resuelto por la Corte IDH.
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