7
have been denied to the alleged victim; or w hen there has been unw arranted delay in rendering a
final judgment under the aforementioned remedies.
28.
As a preliminary matter, the Inter-American Commission observes that in cases such
as this one, w hich allegedly implies criminal offenses that are prosecutable sua sponte in Brazil—the
arbitrary detention, torture, and extrajudicial execution of a person—the suitable and effective
remedy is a criminal investigation and a trial in the ordinary justice system. The IACHR notes that it
is an uncontested fact, maintained by both the petitioners and the State (see paragraphs 9, 19, and
21, above), that the amnesty law is “ an obstacle to the criminal prosecution of those responsible”
for the violations perpetrated against the alleged victim. Previously, in its Admissibility Report on
Petition 11.552 (Araguaia Guerrilla Movement ), the IACHR observed that based on that law , “ it is
impossible to investigate individual responsibility and to punish the agents of the State involved in
the case.” 4 In its Report on the Merits in the same case, the Inter-American Commission determined
that “ the criminal investigation and punishment of those responsible for the forced disappearances
of the victims ‘ is precluded by the amnesty law approved in 1979, w hich is still in force’ ” 5
Moreover, in its judgment in Case 11.552 the Inter-American Court confirmed, “ Under said law , to
date, the St ate has not investigated, processed, or criminally punished those responsible for the
human rights violations committed during the military regime.” 6
29.
The IACHR has ruled repeatedly on the admissibility of petitions that refer to
amnesty law s. In one of its first decisions on the subject, the IACHR observed the follow ing, w ith
regard to the admissibility of petitions related to the amnesty law in Uruguay:
In the Commission' s judgment, the formal admissibility requirements set forth in Article 46.1 of
the Convention and in Article 32 of the Commission' s Regulations have been satisfied inasmuch
as the domestic legislation does not provide suitable and effective means under w hich it w ould be
at least legally possible to declare the effects of the law null and void; those effects make it
impossible to obtain an impartial and exhaustive judicial investigation into the very serious human
rights violations that have occurred in the past. The Uruguayan Supreme Court of Justice
dismissed the cases that argued the unconstitutionality of the law .
As for the allegation that the domestic remedies have not been exhausted, the Commission
w ould note that once the law w as declared constitutional, its effect w as to prevent continuation
of the proceedings underw ay in the courts of the land. While Article 46.1.a of the Convention
requires that the remedies under domestic law be pursued and exhausted first, Article 46.2.a
stipulates that said requirement shall not apply when "the domestic legislation of the State
concerned does not afford due process of law for the protection of rights that have allegedly been
violated." Therefore, the petitions cannot be considered inadmissible on the ground of a failure to
exhaust the remedies under domestic law . 7
4
IACHR. Report No. 33/01, Admissibility, Petition 11.552, Julia Gomes Lund et al. (Araguaia Guerrilla Movement),
Brazil, March 6, 2011, para. 57.
5
IACHR. Report No. 91/08, Merits, Case 11.552, Julia Gomes Lund et al. (Araguaia Guerrilla Movement), Brazil,
October 31, 2008, para. 98 (this corresponds t o paragraph 112 of the application to the Inter-American Court).
6
I/A Court H.R. Case of Gomes Lund et al. (“ Guerrilla do Araguaia” ) v. Brazil. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 24, 2010. Series C No 219, para. 1 35.
7
IACHR. Report No. 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375,
Uruguay, October 2, 1992, IV. ADMISSIBILITY, paras. 15 and 16 (emphasis ours). Along the same lines, see IACHR. Report
No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311, Argentina, October 2, 1992, III. ADMISSIBILITY
AND PROCESSING BY THE COMMISSION, para. 10.