81
228. 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 the exercise of their right
to a simple and effective remedy, in the terms of Articles 8 and 25 of the
Convention, and 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 thereof, 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 prevents the next of
kin from knowing the truth regarding the facts.
229. The incompatibility with the Convention includes amnesties of serious human
rights violations and is not limited to those which are denominated, “self-amnesties,”
and the Court, more than the adoption process and the authority which issued the
Amnesty Law, heads to its ratio legis: to leave unpunished serious violations
committed in international law. 289 The incompatibility of the amnesty laws with the
American Convention in cases of serious violations of human rights does not stem
from a formal question, such as its origin, but rather from the material aspect in
what regards the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and
2 of the Convention.
G. The investigation of the facts and the Uruguayan Expiry Law.
230. The way in which, at least for a period of time, the Expiry Law adopted in
Uruguay has been interpreted and applied, on the one hand, has affected the State’s
international obligation to investigate and punish human rights violations relating to
the enforced disappearance of María Claudia García Iruretagoyena and of María
Macarena Gelman García, as well as the situation regarding the latter in relation to
her abduction and the concealment of her identity, due to the prevention of the
victim’s next of kin from being heard by a judge, pursuant to that stated in Article
8(1) of the American Convention and has, on the other hand, violated the right to
judicial protection enshrined in Article 25 of that instrument because of the failure to
investigate, persecute, capture, prosecute, and punish those responsible for the
facts, thereby also failing to comply with Article 1(1) and 2 of the Convention,
referring to the adaption of domestic law to the Convention. 290
231. The failure to investigate the serious human rights violations committed in the
present case, which occurred in the context of systematic patterns, evince the
noncompliance with international obligations of the State, established by nonextendible norms. 291
232. Given its express incompatibility with the American Convention, the
provisions of the Expiry Law that impede the investigation and punishment of serious
289
Cf. Case of Almonacid Arellano et al. V. Chile. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 26, 2006. Series C No. 154, para. 120, and Case of Gomes Lund et al.
(Guerrilha do Araguaia), supra note 16, para. 175.
290
291
Cf. Case of Gomes Lund et al. (Guerrilha do Araguaia), supra note 16, para. 175.
Cf. Case of Goiburú et al., supra note 23, paras. 93 and 128; Case of Ibsen Cárdenas and Ibsen
Peña, supra note 9, para. 61 and 197, and Case of Gomes Lund et al. (Guerrilha do Araguaia), supra note
16, para. 137.
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