51
remedy applies.176 Among other foundational basis, the vote of the Judge
Rapporteur highlighted that the Amnesty Law was “a calculated law,”177 not one
for the future, and, as such, it must “be interpreted, as a whole with its text, the
reality of and the historic moment in which the law was decreed and not the
current reality.” In this sense, the Law implemented “a political decision [in] a
moment of conciliatory transition in 1979” given that “all were absolved, some
absolving themselves.” The law effectively included in the amnesty all “political
agents who participated in derived crimes against the political opposition, those
detained or not, during the military regime.”178 The political agreement carried
out by the political class that permitted the transition to a State of law “resulted
in a particular text, [and therefore], only the Legislative Power could change it. It
is not incumbent on the Supreme Federal Court to change normative texts that
concede amnesty.” Lastly, regarding the reception or not of Law No. 6.683/79 in
the new democratic constitutional order, it indicated that “[the Amnesty] [L]aw of
1979 did not pertain to the declined order. It is integrated in the new
[constitutional] order, created in the origin of the new fundamental norm,” and as
such, its adaptation to the Constitution of 1988, “is unquestionable.”179
C. Obligation to investigate, and where applicable, punish grave
human rights violations in international law
137. Since its first judgment, this Court has highlighted the importance of the
State’s obligation to investigate and punish for human rights violations.180 The
obligation to investigate, and where applicable prosecute and punish, has
particular importance given the severity of the crimes committed and the nature
of the injured rights, particularly given that the prohibition of enforced
disappearance of persons and its related obligation to investigate and punish
those responsible have, for much time now, reached a nature of ius cogens.181
138. The Court reiterates that the obligation to investigate human rights
violations is a positive measure that must be adopted by States to guarantee the
rights recognized in the Convention.182 The duty to investigate is an obligation of
means, and not of results, which should be assumed by the State as a legal
obligation in and of itself and not as a simple formality condemned from the onset
to be unsuccessful, or a matter of particular interests, which depends on the
176
Cf.
Law
No.
9.882/99,
Articles
10
and
12.
Availabe
at
http://www.planalto.gov.br/ccivil_03/Leis/L9882.htm; last visited on November 20, 2010. Similarly,
cf. expert opinion of Mr. Langaro Dipp rendered at the public hearing held on May 21, 2010.
177
According to the Rapporteur, the law-measures “directly regulate specific interests, appearing
immediatly and specifically. They consist of a special administrative act[.] The law-measures are an
administrative act that [is updated] by the agent of the Administration, [and they entail] the specific
sought-after request, to which they are addressed. For this reason, they are laws only in the formal
sense, not being, nevertheless, in the material sense.” Vote of the Rapporteur Minister, supra note
175, folio 2641.
178
According to the Rapporteur, “what characterizes this amnesty is its objectivity, what matters
is that it refers to one or more crimes, not to specific persons[.] The amnesty [is] conceeded to nondetermined persons.” Vote of the Rapporteur Minister, supra note 175, folio 2617.
179
Vote of the Rapporteur Minister, supra note 175, folios 2598 to 2670.
180
Cf. Case of Velásquez Rodríguez. Merits. supra note 25, para. 166.
181
Cf. Case of Goiburú et al., supra note 130, para. 84; Case of Chitay Nech et al., supra note
25, para. 193, and Case of Ibsen Cárdenas and Ibsen Peña, supra note 24, para. 197.
182
Cf. Case of Velásquez Rodríguez. Merits, supra note 25, paras. 166 and 176; Case of
Fernández Ortega et al. supra note 53, para. 191, and Case of Rosendo Cantú et al. supra note 45,
para. 175.
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