and also the systematic nature and scope of the plan to “combat subversion” that had been implemented, above all, between 1968 and 1975. 254. In view of the particularities of this case, and the State’s awareness of the definition of the facts under international law, especially after the publication of the CEMDP Report, the State had the obligation to act diligently to avoid crimes such as those described in this report remaining unpunished. e. Actions of the Federal 2008.61.81.013434-2) Public Prosecution Service (Proceeding No. 255. Without prejudice to the previous consideration on State obligations in the case of conducts that can be characterized as crimes against humanity, the Court will now examine the initiative of the Federal Public Prosecution Service and the response of the Federal Judiciary to the complaint filed by a lawyer as a result of the publication of the CEMDP Report. 256. On receiving the complaint filed by the lawyer, Fábio Konder Comparato, two federal prosecutors with civil competence forwarded it to their colleague with criminal competence. That federal prosecutor ruled in favor of closing the investigation. Although he recognized that “the murder of Vladimir Herzog has all the characteristics of the so-called crimes against humanity, and can be fully characterized as such”; that the Amnesty Law was not applicable to the case, and that the possibility of punishing the crime committed had not extinguished owing to the amnesty, the federal prosecutor considered that the conduct had not been defined by law at the time of the facts. In addition, he understood that substantive res judicata existed and, also, that statutory limitations applied to the possible punishment, whether or not the judge was competent. Furthermore, the prosecutor indicated that the American Convention “does not establish clearly any hypothesis on imprescriptibility for the past” and that imprescriptibility could not be established based on that source, because it represented a factor of legal uncertainty (supra paras. 152 to 157). 257. Under the Brazilian legal system, the criminal prosecutor’s opinion had to be examined by a judge. The federal judge who intervened admitted the reasoning of the Public Prosecution Service, understanding that substantive res judicata existed in the case that made it impossible to continue the investigations because the criminal action had extinguished. However, she considered that the facts should not be considered crimes against humanity because they had not been defined as such when they took place. Her decision also indicated that the laws of Brazil did not allow the creation of crimes by custom, only by law. Lastly, the said judge considered that the action was subject to the statute of limitations because “both murder and genocide, and also torture […] are not imprescriptible crimes under the Constitution and other provisions of the laws in force” (supra paras. 159 and 160). With regard to the intervention of the judge who had closed the investigation in 1992, the federal judge indicated that, by recognizing the existence of a cause for extinction of the possibility of punishment, that decision acquired legal substance, and therefore constituted substantive res judicata. 253 B.4. Analysis of the State’s actions 258. In order to analyze the preceding decisions and rulings, the Court will refer to the standards established in this chapter in relation to crimes against humanity and the legal consequences for States when these occur and, in particular, for Brazil since December 10, Substitute Federal Judge of the First Federal Criminal and Sentencing Court. Decision No. 2008.61.81.013434-2, January 9, 2009, p. 9 (evidence file, folio 4573). 253 64