leads to the defenselessness of victims and the perpetuation of impunity and prevent the next of kin
from knowing the truth.350
219.
On this basis, the Court found that “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”.351
220.
The IACHR notes that, in its final report, the National Truth Commission (CNV) of Brazil
resumed inter-American jurisprudence and noted that “the characterization of a human rights violation as
serious imposes, on the State, a series of obligations”, 352 indicating that “Amnesty and statute of limitations
provisions, and the establishment of liability waivers in order to obstruct the investigation and punishment of
those responsible for serious violations of human rights are inadmissible”.353
221.
Both the Court354 and the IACHR have emphasized that in their capacity as guarantors, the
courts of each State are obliged to exercise "control of conventionality", which means that they must, at all
times, arrange or guide their judgments in accordance with treaty-based norms on human rights. In its
judgment in the case of Gomes Lund et al ("Araguaia Guerrillas") v Brazil, the Court reaffirmed this obligation
and indicated that if a State is party to an international treaty such as the American Convention, the judiciary
“is internationally obligated to exercise “control of conventionality” ex officio between the domestic norms
and the American Convention”.355 The Court recalled that “the obligation of a State to comply with
international obligations voluntarily contracted corresponds to a basic principle of law of international
responsibility of States, backed by international and national jurisprudence, according to which States must
comply with their conventional international obligations in good faith (pacta sunt servanda). According to
that previously held by this Court and established in Article 27 of the Vienna Convention on the Law of
Treatises of 1969, States cannot, due to domestic order reasons, not to assume their already established
international obligations. The conventional obligations of States Parties bind all the powers and organs of the
State, those of which must guarantee compliance with conventional obligations and its effects (effet utile) in
the design of its domestic law”.
222.
In the proceedings of this case, the State reported that through bills known as PL 573/2011
and PL 7.357/2014, the Legislative Branch was working toward an “authentic interpretation” of the provision
contained in Article 1, paragraph 1 of the Amnesty Law, to ensure that the concept of “derived crimes” “[d]oes
not include crimes committed by public officials, be they military or civilian, against persons who committed
or are suspected of having committed political crimes”. Bill PL 7.357/2014 seeks to exclude from the Amnesty
Law "[p]ublic officials, be they military or civilian, who have committed crimes of torture, kidnapping, private
detention, summary execution, hiding of corpses or attacks.” It also reported that, on April 9, 2014, its
annexation was decided to PL 573/2011. Reference was also made to the bill known as PL 237/2013 which
defines the expression “derived crimes” contained in Article 1, paragraph 1 of the Amnesty Law in the
manner described above, and establishes that the statutory limitation or other bases for extinction of the
350 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.
351 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. 174.
352 Relatório da Comissão Nacional da Verdade. Volume I. Parte I “A Comissão Nacional da Verdade”, Chapter 1 – A criação da
Comissão Nacional da Verdade, (C) O mandato legal da Comissão Nacional da Verdade, fls. 38, para. 64, of December 10, 2014.
353 Relatório da Comissão Nacional da Verdade. Volume I. Parte I “A Comissão Nacional da Verdade”, Chapter 1 – A criação da
Comissão Nacional da Verdade, (C) O mandato legal da Comissão Nacional da Verdade, fls. 38, para. 65, of December 10, 2014.
354 Corte IDH. Caso Almonacid Arellano y otros vs. Chile. Excepciones Preliminares, Fondo, Reparaciones y costas. Sentencia de
26 de septiembre de 2006. Serie C No. 154, párr. 124; Corte IDH. Caso Rosendo Cantú y otra Vs. México. Excepción Preliminar, Fondo,
Reparaciones y Costas. Sentencia de 31 de agosto de 2010. Serie C No. 216. párr. 219, y Corte IDH. Caso Ibsen Cárdenas e Ibsen Peña Vs.
Bolivia. Fondo, Reparaciones y Costas. Sentencia de 1 de septiembre de 2010 Serie C No. 217. párr. 202.
355 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. 176.
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