64
which is unanimously established in international law and the precedent of the
organs of the universal and regional systems of protection of human rights. In
this sense, regarding the present case, the Court reiterates that “amnesty
provisions, the statute of limitation provisions, and the establishment of
exclusions of responsibility that are intended to prevent the investigation and
punishment of those responsible for serious violations to human rights such as
torture, summary, extrajudicial, or arbitrary executions, and enforced
disappearance are not admissible, all of which are prohibited for contravening
irrevocable rights recognized by International Law of Human Rights.”250
172. The Inter-American Court considers that the manner in which the Amnesty
Law has been interpreted and applied by Brazil (supra paras. 87, 135 and 136)
has affected the international obligation of the State in regard to the investigation
and punishment of serious human rights violations because it prevented the next
of kin in the present case from being heard before a judge, pursuant to that
indicated in Article 8(1) of the American Convention and violated the right to
judicial protection enshrined in Article 25 of the Convention given the failure to
investigate, persecute, capture, prosecute, and punish those responsible for the
facts, failing to comply with Article 1(1) of the Convention. In addition, in
applying the provisions of the Amnesty Law preventing the investigation of the
facts and the identification, prosecution, and possible punishment of the possible
responsible of continued and permanent violations such as enforced
disappearances, the State failed to comply with its obligation to adapt its
domestic law enshrined in Article 2 of the American Convention.
173. The Court deems it necessary to emphasis that, under the general
obligations enshrined in Article 1(1) and 2 of the American Convention, the States
Parties have the obligation to take measures of all kinds to assure that no one is
taken from the judicial protection and from the exercise of their right to a simple
and effective remedy, in the terms of Articles 8 and 25 of the Convention. In a
case such as the present, once the American Convention has been ratified, it
corresponds to the State to adopt all the measures to revoke the legal provisions
that may contradict said treaty as established in Article 2, such as those that
prevent the investigation of serious human rights violations given that it leads to
the defenselessness of victims and the perpetuation of impunity and prevent the
next of kin from knowing the truth.
174. Given its express non-compatibility with the American Convention, the
provisions of the Brazilian Amnesty Law that impedes the investigation and
punishment of serious human rights violations lack legal effect. As a
consequence, they cannot continue to represent an obstacle in the investigation
of the facts in the present case, nor for the identification and punishment of those
responsible, nor can they have equal or similar impact regarding other cases of
serious human rights violations enshrined in the American Convention that
occurred in Brazil.251
175. In regard to the that argued by the parties regarding whether the case
deals with an amnesty, self-amnesty, or “political agreement,” the Court notes,
as is evident from the criteria stated in the present case (supra para. 171), that
250
Cf. Case of Barrios Altos v Perú. Merits. Judgment of March 14, 2001. Series C No. 75, para.
41; Case of La Cantuta, supra note 160, para. 152, and Case of the Dos Erres Massacre, supra note
186, para. 129.
251
Cf. Case of Barrios Altos. Merits, supra note 250, para. 44; Case of Almonacid Arellano et al.
v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006.
Series C No. 154, para. 119, and Case of La Cantuta, supra note 160, para. 175.
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