65
the non-compatibility with the Convention includes amnesties of serious human
rights violations and is not limited to those which are denominated, “selfamnesties.” Likewise, as has been stated prior, 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 in international law committed
by the military regime.252 The non-compatibility 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 as
they breach the rights enshrined in Articles 8 and 25, in relation to Articles 1(1)
and 2 of the Convention.
176. This Court has established in its jurisprudence that it is conscious that the
domestic authorities are subject to the rule of law, and as such, are obligated to
apply the provisions in force of the legal code. However, when a State is a Party
to an international treaty such as the American Convention, all of its organs,
including its judges, are also subject to it, wherein they are obligated to ensure
that the effects of the provisions of the Convention are not reduced by the
application of norms that are contrary to the purpose and end goal and that from
the onset lack legal effect. The Judicial Power, in this sense, is internationally
obligated to exercise “control of conventionality” ex officio between the domestic
norms and the American Convention, evidently in the framework of its respective
jurisdiction and the appropriate procedural regulations. In this task, the Judicial
Power must take into account not only the treaty, but also the interpretation that
the Inter-American Court, as the final interpreter of the American Convention,
has given it.253
177. In the present case, the Court notes that the control of conventionality
was not exercised by the competent authorities of the State, but rather, the
decision of the Federal Supreme Court confirmed the validity of the interpretation
of the Amnesty Law without considering the international obligations of the Brazil
derived from international law, particularly those established in Article 8 and 25
of the American Convention, in relation with Articles 1(1) and 2 of the same. The
Court deems it timely to recall 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.254
252
Cf. Case of Almonacid Arellano et al., supra note 251, para. 120.
253
Cf. Case of Almonacid Arellano et al., supra note 251, para. 124; Case of Rosendo Cantú et
al., supra note 45, para. 219, and Case of Ibsen Cárdenas and Ibsen Peña, supra note 24, para. 202.
254
Cf. International Responsibility for the Promulgation and Enforcement of Laws in Violation of
the Convention (Arts. 1 and 2 of the American Convention on Human Rights). Advisory Opinion OC14/94, of December 9, 1994. Series A No. 14, para. 35; Case of the Miguel Castro-Castro Prison v.
Perú. Merits, Reparations and Costs. Judgment of November 25, 2006. Series C No. 160, para. 394,
and Case of Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of July 4,
2007. Series C No. 166, para. 104. Likewise, cf. I/A Court H.R., Case of Castillo-Petruzzi et al. v. Peru.
Compliance with Judgment. Order of November 17, 1999. Series C No. 59. Considering clause 3; Case
of De la Cruz Flores v. Perú. Compliance with Judgment. Order of the Inter-American Court of Human
Rights of September 1, 2010, Considering clause 5.
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