66
178. In relation to the application of the principle of proportionality made by the
State, amongst the various measures adopted as a guarantee of non-repetition
so as to comply with Article 1(1) of the American Convention and the principle of
legality enshrined in Article 9 of the same treaty (supra para. 132), the Court
positively values the numerous measures of reparation and non-repetition
adopted by Brazil, which will be discussed in the chapter on reparations in the
present Judgment. While these measures are important, they are not sufficient
given that they have failed in providing access to justice for the next of kin of the
victims. In this regard, the Court notes that in applying the principle of
proportionality, the State has omitted any mention of victims' rights arising under
Articles 8 and 25 of the American Convention. Indeed, said proportionality is
made between the State’s obligations to respect and guarantee and the principle
of legality, but the right to judicial guarantees [fair trial] and judicial protection of
the victims and their next of kin are not included in the analysis, which have been
sacrificed in the most extreme way in the present case.
179. In addition, regarding the alleged offense to the principle of legality and
retroactivity, the Court has already noted (supra paras. 110 and 121) that
enforced disappearance is a crime of a continuous and permanent nature, and its
effects do not stop until the whereabouts or location of the victim are determined
and the victim’s identity established, hence the effects of the internationally
unlawful act in question continue occurring. Therefore, the Court finds that, at
any rate, there would be no retroactive application of the crime of enforced
disappearance, given that the facts of the present case, that are left in impunity
by the application of the Amnesty Law, go beyond the temporal scope of said
norm because of the continuing or permanent nature of enforced disappearance.
180. Based on the previous considerations, the Inter-American Court concludes
that given the interpretation and the application it has given to the Amnesty Law,
which lacks legal effects regarding serious human rights violations, in the
abovementioned terms (particularly, supra paras. 171 to 175), Brazil has not
complied with its obligation to properly conform its domestic law with the
Convention, contained in Article 2 thereof, in relation with Articles 8(1), 25, and
1(1) of the same treaty. In addition, the Court concludes that because of the
failure to investigate the facts, as well as the prosecution and punishment of
those responsible, the State violated the rights to judicial guarantees [fair trial]
and judicial protection enshrined in Articles 8(1) and 25(1) of the American
Convention, in relation with Articles 1(1) and 2 of the same, to the detriment of
the following next of kin of the victims: Zélia Eustáquio Fonseca, Alzira Costa
Reis, Victória Lavínia Grabois Olímpio, Criméia Alice Schmidt de Almeida, João
Carlos Schmidt de Almeida, Luiza Monteiro Teixeira, João Lino da Costa, Benedita
Pinto Castro, Odila Mendes Pereira, José Pereira, Luiza Gurjão Farias, Junília
Soares Santana, Antonio Pereira de Santana, Elza da Conceição Oliveira (or Elza
Conceição Bastos), Viriato Augusto Oliveira, Maria Gomes dos Santos, Rosa
Cabello Maria (or Rosa Olímpio Cabello), Igor Grabois Olímpio, Julia Gomes Lund,
Carmem Navarro, Gerson Menezes Magalhães, Aminthas Aranha (or Aminthas
Rodrigues Pereira), Julieta Petit da Silva, Ilma Hass, Osoria Calatrone, Clotildio
Calatrone, Isaura de Souza Patricio, Joaquim Patricio, Elena Gibertini Castiglia,
Jardilina Santos Moura, Joaquim Moura Paulino, José Vieira de Almeida, Acary V.
de S. Garlippe, Dora Grabois, Agostim Grabois, Rosana Moura Momente, Maria
Leonor Pereira Marques, Otilia Mendes Rodrigues, Francisco Alves Rodrigues,
Celeste Durval Cordeiro, Luiz Durval Cordeiro, Aidinalva Dantas Batista, Elza
Pereira Coqueiro, Odete Afonso Costa, Angela Harkavy, José Dalmo Ribeiro Ribas,
Maria Eliana de Castro Pinheiro, Roberto Valadão, Diva Soares Santana, Getúlio
Soares Santana, Dilma Santana Miranda, Dinorá Santana Rodrigues, Dirceneide
Soares Santana, Terezinha Souza Amorim, Aldo Creder Corrêa, Helenalda
Resende de Souza Nazareth, Helenice Resende de Souza Nazareth, Helenilda
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