international criminal court for the crime of genocide based on the same act.” 289 In situations in which “the individual has not been duly tried or punished for the same act or the same crime because of the abuse of power or improper administration of justice by the national authorities in prosecuting the case or conducting the proceedings, [t]he international community should not be required to recognize a decision that is the result of such a serious transgression of the criminal justice process.” 290 272. The Court has indicated that, in the case of gross and systematic violations of human rights, the possible impunity of such conducts owing to the absence of investigation gives rise to a particularly serious violation of the rights of the victims. The severity of this violation not only authorizes, but demands, an exceptional limitation to the guarantee of ne bis in idem in order to allow the re-opening of the investigations when the decision that is alleged to be res judicata was issued as a result of an evident and notorious failure to comply with the obligations to investigate and severely punish such grave violations. In such a situation, the primacy of the rights of the victims over legal certainty and the principle of ne bis in idem is even more obvious, because the victims were not only injured by a heinous conduct, but also had to suffer the indifference of the State, which evidently failed to comply with its obligation to clarify such acts, punish those responsible and make reparation to the victims. In such cases, the seriousness of the crime is such that it affects the essence of the social fabric and impedes any kind of legal certainty. Therefore, the Court stresses that, when the judicial authorities examine the judicial remedies filed by those accused of serious human rights violations, they are obliged to determine whether the deviation in the use of a criminal guarantee may disproportionately restrict the rights of the victims, where a clear violation of the right of access to justice eclipses the procedural guarantee of res judicata. 291 273. Recently, in the case of Marguš v. Croatia, 292 the European Court determined that the principle of ne bis in idem, established in article 4 of Protocol No. 7 to the European Convention on Human Rights was not applicable to a situation of serious human rights violations to which an amnesty law had been applied. 274. Taking all the foregoing into account, the Court considers that, in this case, the alleged substantive res judicata by virtue of the Amnesty Law is definitively inapplicable. 275. In this regard, the Court notes that, with regard to the 1993 ruling of the Superior Court of Justice, which confirmed the habeas corpus of Mira Grancieri and closed the investigation into the torture and murder of Vladimir Herzog, expert witness Maria Auxiliadora Minahim indicated that “there is no judicial error that makes it possible, within the objective and subjective limitations of res judicata, to derogate the jurisdictional decision declaring the dismissal of the charges.” 293 However, taking into account the legal considerations set out UN. Report of the International Law Commission on the work of its forty-eighth session (6 May-26 July, 1996). A/51/10. p. 38. Commentary 10 on article 12 of the Draft code of crimes against the peace and security of mankind.. 289 290 Cf. UN. Report of the International Law Commission on the work of its forty-eighth session (6 May-26 July, 1996). A/51/10. p. 38. Commentary 11 on article 12 of the Draft code of crimes against the peace and security of mankind. 291 Cf. Case of Bámaca Velásquez v. Guatemala. Monitoring compliance with judgment. Order of the Inter-American Court of Human Rights of November 18, 2010, considerandum 44. See also: Supreme Court of Justice of the Nation, Argentina. Cassation appeal and unconstitutionality. Judgment of July 13, 2007, Case of Mazzeo, Julio Lilo et al., consideranda 33 and 34; Federal Criminal Oral Court No. 1 of San Martín. Judgment for crimes against humanity. August 12, 2009, General Riveros et al. in the case of Floreal Edgardo Avellaneda et al., considerandum I. Similarly, see, Constitutional Court of Colombia. Judgment of January 20, 2003, C-004/03, consideranda 30, 31 and 32 and ECCC. Decision on preliminary objections in the case against Ieng Sary (Ne Bis in Idem and Amnesty and Pardon), Case No. 002/19-09-2007/ECCC/TC, Trial judgment of November 3, 2011, paras. 30, 33 and 34. 292 Cf. ECHR. Marguš v. Croatia [GS], No. 4455/10, Judgment of May 27, 2014. 293 Expert opinion of Maria Auxiliadora Minahim (evidence file, folio 14020). 70