serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable rights recognized by international
human rights law”.345
216.
More recently, this Court observed that:
all of the international organs for the protection of human rights and several high courts of the region
that have had the opportunity to rule on the scope of amnesty laws regarding serious human rights
violations and their compatibility with international obligations of States that issue them, have noted
that these amnesty laws impact the international obligation of the State to investigate and punish said
violations.346
217.
In the case of Julia Gomes Lund et al. (Guerrilla de Araguaia) v. Brasil, the Commission had the
opportunity to comment on Law No. 6.683/79, adopted in Brazil on August 28, 1979. The Commission
considered that this legislation constitutes an amnesty law by declaring the extinction of criminal liability of
all individuals that had committed “political crimes or derived crimes to these” within the period of the
military dictatorship, between September 2, 1961 and August 15, 1979. 347 The Commission added that
Brazilian courts have interpreted the amnesty law in the sense that it prevents the criminal investigation,
prosecution and punishment of those responsible for serious violations of human rights which constitute
crimes against humanity, including torture, extrajudicial executions and forced disappearances. 348 In this
regard, the Commission considers that Law No. 6.683/79 is contrary to the American Convention, “to the
extent that it is interpreted as an impediment to the criminal prosecution of serious human rights
violations”349.
218.
In its decision on this case, the Court stated if “finds no legal grounds for departing from its
settled case-law, according to which ‘amnesty provisions which seek to prevent the investigation and
punishment of those responsible for serious human rights violations are inadmissible’”. Adding:
172. The Inter-American Court considers that the manner in which the Amnesty Law has been
interpreted and applied by Brazil […] 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 those 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 emphasize 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
I/A Court H.R. Case of Barrios Altos. Judgment of March 14, 2001. Serie C No. 75, para. 41.
I/A Court H.R. Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of November 24, 2010. Serie C No. 219, para. 170.
347 IACHR, Report No. 91/08, Case of 11.552, Fondo, Julia Gomes Lund et al. (Guerrilla de Araguaia), Brazil, October 31, 2008,
para. 97.
348 IACHR, Report No. 91/08, Case of 11.552, Fondo, Julia Gomes Lund et al. (Guerrilla de Araguaia), Brazil, October 31, 2008,
para. 100.
349 IACHR, Report No. 91/08, Case of 11.552, Fondo, Julia Gomes Lund et al. (Guerrilla de Araguaia), Brazil, October 31, 2008,
para. 180.
345
346
48