ability of the State to enforce punishment, shall not apply to crimes not included in the legally granted amnesty. (supra párr. 33) 223. Also, the State emphasized that there are two cases currently before the Supreme Court (STF) claiming non-compliance with a fundamental precept (ADPF) [“Arguição de Descumprimiento Preceito Fundamental”] on this matter and that one of them seeks a finding from the STF declaring that the Amnesty Law, “in general, does not apply to crimes involving serious human rights violations committed by public officials, be they military or civilian, against persons who committed or are suspected of having committed political crimes; and, in particular, that the Law does not apply to the authors of continuing or permanent crimes, since the effects of this provision expired on August 15, 1979 (Article 1).” Likewise, the action also requested that the Brazilian State comply “fully” with the twelve operative paragraphs of the Inter-American Court’s judgment in the Case of Gomes Lund et al. and other Court judgments. (supra párr. 34 and 36) 224. The Commission appreciates the initiatives mentioned by the State. However, in terms similar to those expressed in the case of Gomes Lund et al ("Guerrilha do Araguaia") v Brazil, the Commission concludes that, in this case, the judges validated the interpretation of Law No. 6.683/79 (Amnesty Law), which has no legal effect for serious human rights violations in the above terms. To that extent, the judicial authorities who have known about the investigation of the arbitrary detention, torture and murder of Vladimir Herzog have prevented the identification, trial and punishment of those responsible, and have not exercised proper control of conventionality to which they were obliged, once the American Convention was ratified, in accordance with the international obligations of Brazil under international law. (b) Res judicata 225. With regard to the ne bis in idem principle, the Court has indicated that: although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice.356 226. It appears from the Court’s jurisprudence that a judgment rendered in the foregoing circumstances produces an “apparent” or “fraudulent” res judicata case.357 The Court believes that if there appear new facts or evidence that make it possible to ascertain the identity of those responsible for human rights violations or for crimes against humanity, investigations can be reopened, even if the case ended in an acquittal with the authority of a final judgment, since the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle. 227. The instant case falls under one of the mentioned assumptions of "apparent" or "fraudulent" res judicata. In 2009, the 1st Federal Criminal Court decided to file the investigation into the facts of this case, considering that the closure of the investigation, previously ordered by state courts in 1993 in application of Law No. 6.683/79 (Amnesty Law), had become res judicata. (supra párr. 127 - 128). 228. According to the IACHR, given its manifest incompatibility with the American Convention, the interpretation and application of Law No. 6.683/79 (Amnesty Law) in this case was intended to exclude the alleged perpetrators from judicial action, and leave the crime committed against journalist Vladimir Herzog unpunished. Under this assumption, the State cannot resort to the principle of ne bis in idem, in order to not comply with its international obligations. I/A Court H.R. Case of Almonacid Arellano, Judgment of September 26, 2006. Serie C No. 154, para. 154. Cfr. Case of Carpio Nicolle et al. Judgment of November 22, 2004. Serie C No. 117, para. 131; I/A Court H.R. Case of Gutiérrez Soler v. Colombia. Judgment of September 12, 2005. Serie C No. 132, para. XXX; I/A Court H.R. Case of Almonacid Arellano, Judgment of September 26, 2006. Serie C No. 154, para. 154. 356 357 50