On August 7, 1995, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition from the
Brazil section of the Center for Justice and International Law (CEJIL/Brazil)
and Human Rights Watch/Americas (HRWA) against the Federative Republic of
Brazil (hereinafter "the State" or "Brazil").
Subsequently, the Rio de Janeiro Section of the Grupo
Tortura Nunca Mais [Torture Never Again Group] (GTNM/RJ) and the Comissão
de Familiares de Mortos e Desaparecidos Políticos de São Paulo
[Committee of the Families of Those Who Died or Disappeared for
Political Reasons] (CFMDP/SP) were added as co-petitioners.
The petition relates to the disappearance of members of the
Araguaia guerrilla movement from 1972 to 1975, and the State's failure,
since that time, to investigate those facts.
Julia Gomes Lund and 21 others were presumably killed during
military operations conducted in the Araguaia region, in the south of the
state of Pará. Since 1982,
family members of these 22 persons have been trying, by means of
proceedings brought in Federal Court, to obtain information on the
circumstances of the disappearances and deaths of the guerrillas, and to
recover their bodies.
The petition alleges that the facts described constitute violations
of rights guaranteed under Article I (right to life, liberty, and personal
security); Article XXV (right of protection from arbitrary arrest); and
Article XXVI (right to due process of law) of the American Declaration of
the Rights and Duties of Man (hereinafter "the American
Declaration" or "the Declaration"), and of Article 4 (Right
to Life); Article 8 (Right to a Fair Trial); Article 12 (Freedom of
Conscience and Religion); Article 13 (Freedom of Thought and Expression);
and Article 25 (Right to Judicial Protection), as well as Article 1(1)
(Obligation to Respect Rights) of the American Convention on Human Rights
(hereinafter “the American Convention” or “the Convention”).
The State responded by alleging that the available domestic
remedies had not been exhausted and that, owing to the enactment of a law
that provides for the investigation of and reparation in cases involving
those who disappeared for political reasons, the petition no longer has
substance, as reparation has already been made for the alleged violations,
and that the responsibility of the State for the facts has already been
After analyzing the petition, and concluding that the requirements
for application of the Convention had been met, the Commission decided to
reject the claim that the grounds for the petition lack substance and to
declare the case admissible.
PROCESSING BY THE COMMISSION
On August 7, 1995, the Commission received a communication from the
petitioners. On December 12,
1995, the pertinent parts of the file were transmitted to the State, and
at the same time the State was requested to provide information regarding
On May 20, 1996, the Commission received a communication from the
petitioners containing two new pieces of information.
The first relates to the enactment by the State of a law
acknowledging the responsibility of the Brazilian State for the
disappearances arising from political activity that took place from
September 1961 to August 1979, and providing for indemnification of the
families of the victims. The
second piece of information was that in several newspaper articles,
individuals who participated in events in the Araguaia region identified
places where the bodies of guerrillas were buried and provided secret
documents and photographs of the operations carried out.
On May 22, 1996, the Commission sent a copy of the aforementioned
material to the State for its evaluation and comment.
On June 26, 1996, the Inter-American Commission received the reply
from the State. The reply
discussed the remedies available in Brazil to resolve the dispute and, at
the same time, argued that domestic remedies had not been exhausted and
that the petition no longer had substance.
On July 16, 1996, the Commission forwarded a copy of the
Government's reply to the petitioners for comment.
On August 23, 1996, the Commission received the petitioners'
comments on the Government's reply. To
summarize, they allege that the slow and unproductive judicial process is
proof that the State does not intend to clarify the facts regarding the
guerrillas' disappearance. They
also allege that Law Nº 9140 of 1995 is inadequate.
On September 19, 1996, these observations were forwarded to the
On October 7, 1996, a hearing was held with the participation of
the parties, at which the petitioners and the State presented their
arguments regarding the petition's admissibility.
In a letter received on December 9, 1996, the petitioners requested
information regarding the State's interest in seeking a friendly
settlement in several cases in which it was involved, including this case.
On December 13, 1996, the IACHR Secretariat reported that the State
had not taken a decision regarding the possibility of reaching a friendly
settlement in the aforementioned cases.
On January 10, 1997, the Commission received further documents and
a request from the petitioners to include as co-petitioners the Committee
of the Families of Those Who Died or Disappeared for Political Reasons of
the Instituto de Estudos da Violência
do Estado [Institute for the Study of State Violence] (IEVE) and Mrs.
Angela Harkavy, sister of Pedro Alexandrino Oliveira, who disappeared in
the Araguaia region.
On February 25, 1997, the Government forwarded further observations
on the case, alleging that it should be closed as the State had already
made reparation for the injury caused by the alleged violation.
This information was forwarded to the petitioners on April 18,
On March 4, 1997, another hearing was held with the participation
of the parties. At this
hearing, arguments regarding the admissibility of the petition were again
presented, and Mrs. Angela Harkavy, the sister of one of those who
disappeared and a co-petitioner in this case, testified. The Commission
placed itself at the disposal of the parties in seeking a friendly
settlement, and gave 30 days for the parties to decide whether they wished
to seek such a settlement. On that occasion, the petitioners presented
written statements on the case, requesting it to be declared admissible. They added that the main demand of the families of the
disappeared–to find out the circumstances in which they disappeared and
where their bodies were buried–was not addressed by the measures taken
by the State.
On March 6, 1997, the State transmitted further observations on the
case, in the terms of its oral statement during the March 4 hearing and in
reply to the petitioners' communication of that date.
In its reply, the State requests that the case be closed. On March 19, 1997, copies of these State pleadings were sent
to the petitioners.
On May 23, 1997, the petitioners submitted their reply to the
observations of the State. They
also attached the statements of one of the new co-petitioners, the Torture
Never Again Group of Rio de Janeiro.
The pertinent observations and documents were forwarded to the
Government on June 3, 1997. The Government's reply was received on July 25, 1997, and
forwarded to the petitioners on July 29, 1997.
On July 25, 1997, a note was received from the Government
containing additional pleadings regarding the petition's admissibility and
merits. In summary, it was
also alleged that the State did not have more information than that
supplied to the Special Commission established through Law Nº 9140 of
1995, that it had not violated its obligations arising under the American
Convention, and that the State was “minimizing the effects” of the
On November 4, 1997, the Commission received further information
from the petitioners, including the deposition of one of the survivors of
the “Araguaia guerrilla movement.” These documents were forwarded to
the State on November 17, 1997.
In further communications received on April 14 and 22, 1998, the
petitioners provide additional information about the existence of military
documents containing precise information on the whereabouts of the persons
who disappeared. This
information was transmitted to the State on April 20, 1998.
The Government responded by note, received on August 31, 1998,
alleging in essence that the violation had been remedied and for that
reason, the case should be closed, pursuant to Article 48(1).
This communication was forwarded to the petitioners on September 1,
In a letter received on February 3, 1999, the petitioners requested
more time to present further information in connection with the case.
On the same date, the Commission agreed to the extension.
On March 5, 1999, the petitioners made their final submissions in
this case, and the information was forwarded to the Government on March
11, 1999. On March 28, 2001,
another hearing was held before the Commission, with the participation of
representatives of the Government and the petitioners at which, after the
parties had reaffirmed their original positions, the petitioners requested
that the Commission move forward with the proceedings and that it take a
decision on admissibility.
III. POSITION OF THE
The petitioners alleged that from 1972 to 1975, a series of
military campaigns were conducted to eradicate a nucleus of rural
guerrilla activity in the Araguaia region, in the southern part of the
state of Pará. The
“Araguaia guerrilla movement” was founded by militants of the
Communist Party of Brazil (CPB) in 1966, and was mobilizing the local
population to foment a revolution to overthrow the Brazilian military
government, which had been in power since 1964.
The petitioners further allege that in the course of these military
operations, almost 60 guerrillas disappeared.
They alleged that they were killed in battle with Brazilian armed
forces, or arrested, tortured, and then killed.
However, none of the individuals was acknowledged as dead,
remaining in the status of persons who had disappeared for political
reasons. The regime, allege
the petitioners, would have concealed the entire existence of the
conflict, including the guerrillas' disappearance.
When democracy was restored, that is, in 1982, family members of 22
of the disappeared persons brought proceedings in the Federal Court of Rio
de Janeiro, asking for the whereabouts of the disappeared persons to be
established and their remains located so that they could be given a decent
burial and their death certificates could be registered.
At first, the national courts processed the case in the usual way,
requesting documents from Executive Branch officials, and summonsing
witnesses. However, on March
27, 1989, after the judge responsible for the case was replaced, the case
was dismissed without ruling on the merits, on the grounds that it was
legally and physically impossible to comply with the request.
Similarly, the judge considered that what the plaintiffs were
requesting–to be able to obtain civil documents showing the absence of
the persons who had disappeared–was covered by the Amnesty Act and did
not require any other judicial action.
The petition indicates that the plaintiffs in the case before the
Federal Court appealed the decision to dismiss the case and, on August 17,
1993, obtained a ruling from the Regional Federal Court (Federal Court of
Appeals), which reversed the decision of the lower court, and returned the
case to the same judge for finding of fact and a ruling on the merits.
On March 24, 1994, the Federal Government filed requests for
against the Federal Court's ruling. However,
the petitioners did not supply this information in their statements. The
State itself alleged–in its note received on March 4, 1997–that the
aforementioned appeal was not heard by the Court, based on a unanimous
decision of the Regional Court itself on March 12, 1996.
The Government lodged a special appeal
against this decision, which was also ruled inadmissible by the Regional
Federal Court. On the basis
of the interlocutory appeal, the Government again lodged an appeal against
which is still pending according to the most recent information submitted
by the parties. To summarize,
the petitioners allege that the lack of a ruling on the merits in the
lower court after so many years have passed is proof that domestic
remedies are ineffective and that the State is not committing itself to
determining its responsibilities nor to punishing the perpetrators.
The petitioners acknowledge that the enactment of Law Nº 9140 of
December 4, 1995, was an important step taken by the Brazilian State in
making reparation for the violations reported.
Through this law, in addition to acknowledging its responsibility
for the disappearances, the State established a special commission
“empowered to acknowledge the deaths of individuals who disappeared by
virtue of their participation, or accusation of participation, in
political activities between September 2, 1961 and August 15, 1975.”
The same law provides for indemnification for persons who
disappeared and were deemed to be dead.
On the basis of evidence, the aforementioned Commission is also
empowered to conduct searches for the guerrillas' bodies.
However, the petitioners note that the State never gave any
indication of burial sites, although it had military
documents–confidential reports on operations carried out–that would
enable graves to be located. Similarly,
the law would be inadequate to the extent that it did not contemplate
determination of the circumstances of death, nor identification and
sanctioning of the perpetrators. Therefore,
although the petitioners acknowledge the progress that enactment of this
law implies, they consider it inadequate reparation. In particular, they consider that the combined application of
the Amnesty Act and Law Nº 9140/95 institutionalizes impunity, and
therefore contravenes the standards of the inter-American system for the
protection of human rights.
The petitioners allege that the Government's lack of interest in
establishing the facts alleged is demonstrated by various facts:
first, the slow processing and lack of cooperation on the part of
the State in the judicial process, in which it never submitted any of the
confidential documents setting forth the facts that occurred from 1972 to
1975 in the Araguaia region. Secondly,
they allege that all information about the Araguaia guerrilla movement
supplied to the Special Commission established through Law Nº 9140/95 and
to the Inter-American Commission comes from unofficial sources, although
the documents are in fact official. Thirdly,
it is alleged that when the State receives judicial instructions to supply
confidential information that they are withholding regarding individuals
who were subjects of action by the Brazilian intelligence services, it
does not do so, or submits false or incomplete information.
Fourth, the State still has on the books laws that prevent the
establishment of the alleged facts, and does not now acknowledge the right
of the victims' families and society in general to know the truth.
Based on the facts described above, the petitioners allege multiple
violations of the Declaration and the American Convention.
In the petitioners' view, from 1972 to 1975, a
military operation was carried out by the Brazilian State that led
to the disappearance of over 60 guerrillas.
They also alleged that, in not investigating said disappearances,
nor identifying and punishing those responsible for the disappearances,
the State created a situation of impunity contravening the American
Convention. In terms of legal
analysis, the allegations of the petitioners are:
In conducting military operations from 1972 to 1975, the State was
responsible for the disappearance of the victims and violated Article I
(right to life, liberty, and personal security), Article XXV (right of
protection from arbitrary arrest), and Article XXVI (right to due process
of law) of the Declaration. In
addition, the persisting lack of information regarding the whereabouts of
the victims constitutes a continuing violation, which in turn implies
violation of Article 4 of the Convention, which entered into force for
Brazil on September 25, 1992;
To the extent that Brazil failed to submit information on the
individuals who disappeared and to allow events to be clarified, the State
violated the right to establish the truth (Articles 8, 13, and 25 of the
In failing to determine the criminal responsibility of those
responsible for the violations, the State violated Article 8 (Right to a
Fair Trial) and Article 25 (Right to Judicial Protection);
As concerns the impossibility of locating the bodies so as to bury
them properly, the petitioners also allege violation of Article 12
(Freedom of Conscience and Religion);
The indemnification made and steps taken to locate and identify the
bodies of the guerrillas, measures taken pursuant to Law Nº 9140 of 1995,
do not discharge the State of its responsibility to investigate the
circumstances in which the disappearances occurred and to punish those
responsible. For this reason,
the Amnesty Act and the aforementioned Law Nº 9140/95 constitute separate
violations of Articles 8 and 25 of the Convention.
With respect to all the rights enshrined in the Convention that
have allegedly been violated, a separate violation of Article 1(1) of the
American Convention is also alleged. In that article, the States Parties undertake to respect the
rights and freedoms recognized therein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights
and freedoms, without any form of discrimination.
The petitioners consider that the conditions for the petition's
admissibility have been met. With
respect to exhaustion of domestic remedies, it is alleged that there was
unwarranted delay in rendering judgment under existing remedies, implying
that the exception provided for in Article 46(2)(c) of the Convention
applies. They allege that the
excessive length of judicial proceedings and the State's refusal to submit
information available to it are the sources of the unwarranted delay.
In view of the foregoing allegations, the petitioners request that
the case be declared admissible and that a report be drawn up in the terms
of Article 50 of the Convention, finding that the State is in violation of
Article I, Article XXV, and Article XXVI of the American Declaration, and
of Articles 1(1), 8, 12, 13, and 25 of the American Convention.
From its first submission in the proceedings, received on June 26,
1996, the Government of Brazil did not contest the facts mentioned in the
initial petition regarding the existence of armed conflict between the
guerrillas and the Brazilian armed forces in the Araguaia region.
On the contrary, in subsequent communications,
the Government clearly states that in enacting Law Nº 9140 of 1995, the
State acknowledged the civil and administrative responsibility of its
agents for the facts reported.
However, the Government alleges that there are available domestic
remedies that were not exhausted by the petitioners.
First, it is alleged that although the federal judicial
proceedings, instituted in 1982, have lasted many years, they are
proceeding normally, in accordance with Brazilian legal procedure.
Secondly, with respect to the information that the petitioners wish
to obtain from the Government, the State alleged that it may be obtained
through a writ of habeas data, as provided for in the Federal Constitution, as well as
through the usual judicial process.
The State alleges that in enacting Law Nº 9140, the State
acknowledged its responsibility and made reparation for the violation
through indemnification of the victims' families.
Allegedly, the Law does not limit itself to monetary compensation,
but also involves investigation into the circumstances and places of the
deaths. However, it is only
possible to locate the bodies and investigate the circumstances of the
guerrillas' death if evidence is available in the area to be investigated.
In the absence of such evidence, it is impossible to locate the
bodies and hence to identify them and determine the circumstances of
death. For such purposes, the
State denies that it has complete military reports in which the burial
sites of these individuals and the circumstances in which they died may be
systematically set forth. Based
on these allegations, the State considers that the Commission should order
the file closed, pursuant to Article 48(1)(b) and (c) of the Convention.
With respect to the petitioners' allegation that comprehensive
reparation of the violation requires the investigation thereof and
punishment of the perpetrators, the State alleges that such punishment is
rendered impossible by the existence of the Amnesty Act enacted in 1979,
which remains in force. It
underscores the fact that the Law was “extremely important in the
process of replacing the military regime and restoring the country to
democracy [and] it was enacted owing to the existence of broad national
political consensus.” The State adds that the Amnesty Act benefited both
sides of the Araguaia conflict.
In a note received on August 31, 1998, the Government presented its
final arguments. To
summarize, the State alleged that: (1)
Law Nº 9140/95 represented adequate response to the issue of the
disappearances through its acknowledgement of State responsibility,
indemnification, acknowledgement that those who disappeared were dead, and
its attempt to locate and identify their bodies; (2) secret documents must
be submitted in accordance with the provisions governing classification of
secret documents, and these documents may be requested through the
judicial process; (3) regarding investigation of the circumstances of the
deaths, the Amnesty Act extinguished the individual criminal
responsibility of the persons involved on both sides of the conflict; (4)
the aforementioned law is the result of broad national consensus in the
sense that it enabled democracy to be restored in the early 1980s.
In conclusion, the Government requests that the case be ordered
closed, pursuant to Article 48(1) of the American Convention.
With respect to the violations alleged by the petitioners, the
State acknowledges its responsibility for the deaths of the guerrillas,
but it considers that the petitioners have the means to obtain adequate
reparation for these violations through the application of Law Nº
9140/95. The State denies that the Amnesty Act and Law No. 9140/95 foster
impunity in Brazil.
To summarize, with respect to the petition's admissibility
requirements, the State alleges that domestic remedies were not exhausted
and that new facts–mainly the enactment of Law Nº 9140 and the work of
the Special Commission established by it–imply that the alleged
violations can no longer be characterized as such. Based on these arguments, the State requests that the case be
ordered closed or declared inadmissible.
In terms of the merits, the State alleges that it has made adequate
reparation for the violations and that it is not infringing upon the right
to truth nor fostering impunity.
IV. ANALYSIS OF
Competence ratione personae, ratione
materiae, ratione temporis, and ratione loci of the
The Commission has jurisdiction in this case by reason of the
matter involved because the facts described, if their veracity is
confirmed, would constitute violations of the American Declaration and the
American Convention, as is discussed below.
The facts described took place from 1972, a time when the State had
not ratified the American Convention.
However, all member states of the Organization of American States
are subject to the jurisdiction of the Commission which, pursuant to
Article 20 of its Statute, shall examine communications that deal with
alleged violations of the American Declaration.
In view of this, the Commission has competence ratione
temporis to decide whether in the period prior to September 25, 1992,
date of ratification of the Convention by the State, there were violations
of Article I, Article XXV, and Article XXVI of the American Declaration.
Similarly, the Commission has competence by reason of the time
involved with respect to the alleged violations of Articles 1(1), 4, 8,
12, 13, and 25 of the American Convention, as the alleged violations of
these articles would be in the nature of continuing
There is no doubt or disagreement among the parties that the facts
described in the petition took place within Brazilian territory, in an
area subject to the territorial jurisdiction of the State.
Therefore, the Commission has competence ratione
Regarding the passive competence ratione
personae [by reason of the person concerned], the petitioners
attribute the violations to a State Party, in this case, Brazil.
With respect to the Commission's active competence ratione
personae [by reason of person], the petitioners allege that the
aforementioned violations were committed to the detriment of the direct
victims of those violations, that is, those who disappeared or died, their
families, and Brazilian society. Regarding
the active aspect of the Commission's competence ratione
personae, Article 44 states that any person or group of persons, or
any nongovernmental entity legally recognized in one or more member states
of the Organization may lodge petitions with the Commission. It was not disputed that the petitioning entities are so
recognized or that they may therefore lodge petitions on behalf of the
victims in this case.
Other admissibility requirements
Exhaustion of domestic remedies
The ancillary nature of the protection afforded by the
inter-American system makes
it necessary, before processing a petition, to establish whether the
petitioners attempted to obtain reparation of the violation within the
domestic law of the State challenged.
In this case, both parties have submitted substantive allegations
with respect to the exhaustion of domestic remedies.
From the documents submitted in the process, it is evident that the
families of 22 of those who disappeared attempted to obtain information on
the whereabouts of those individuals through judicial proceedings
instituted in 1982. They
based their request on natural law and on instruments of international
humanitarian law. They
requested information to be produced on the guerrilla war and the
circumstances involving the disappearance of the 22 guerrillas, and
referred to the existence of an armed forces report that would have been
completed on January 5, 1975, and would contain the information required
to clear up the case.
In these judicial proceedings, the Government made five preliminary
objections, which were rejected by Judge Volkmer de Castilho on September
24, 1982. The State denied the existence of the conflict, the
disappearances, and the requested documents.
It added that if such documents existed, they could not be produced
owing to their secrecy. Having rejected these objections, the judge proceeded–from
1982 to 1985 – to question witnesses and request documents in the
On March 27, 1989, the same court, now presided over by Judge Leal
de Araújo, dismissed the case without ruling on the merits, on the
grounds that it was physically and legally impossible to respond to the
The judge also considered that as the Amnesty Act of 1979
made it possible to apply for a “declaration of absence” in the case
of those who disappeared, this specific legal remedy precluded the
invocation of another more general remedy.
On April 18, 1989, the petitioners lodged an appeal against this
ruling, alleging that the scope of the petition went beyond mere
“acknowledgement of absence” of the persons who had disappeared, the
only measure provided for in the Amnesty Act, and that it was premature to
rule that it was legally impossible to respond to the request. They
further alleged that the request for information did not intend merely to
clarify whether the individuals were permanently absent for civil legal
purposes, but to clarify the exact circumstances in which these persons
On September 11, 1991, the Office of the Public Prosecutor
announced its support for the aforementioned appeal, stating that the
right to information was enshrined as a fundamental right in the Federal
Constitution, in Article 5, paragraph XXXIII thereof.
It also stated that a family's right to bury its dead in accordance
with its religious convictions, while a general principle of law,
constituted a pertinent source of the law in this case.
The Office of the Public Prosecutor's opinion also objects to the
ruling on the grounds that the Amnesty Act does not satisfy the
On August 17, 1993, the Regional Federal Court (2nd tier
of the Federal Courts) reversed the decision of the lower court judge and
ruled that the merits of the case should be examined.
The Court based its ruling on the right to look after one's dead in
accordance with one's religious beliefs.
It also ruled that secret documents may be requested and examined
by the courts without being divulged.
Requests for clarification
were lodged in connection with this ruling.
The Court ruled unanimously on March 12, 1996, that this remedy was
inadmissible. The State
lodged a special appeal against this decision in the Higher Court of
Justice, an appeal which, on November 20, 1996, was also ruled
inadmissible. On December 19,
1996, the State again lodged an appeal against this last ruling,
which–according to information in the files–in connection with which
no ruling has yet been made.
The petitioners allege that the extraordinary delay in the judicial
process justifies the application of the provision contained in Article
46(2)(c) of the Convention. Under
this Article, the provision regarding exhaustion of domestic remedies does
not apply where there has been “unwarranted delay in rendering a final
judgment under the aforementioned remedies.”
The State, for its part, alleges that although the processing is
slow, it is following the usual procedure in force, the principles of the
adversarial system of justice, and principles of legal defense.
It also alleges that the Office of the Attorney General of Brazil
is legally obliged to exhaust the appeals process against rulings that are
not in the interest of the Federal Government, until they have passed in rem
The Commission considers that in this case, a delay of over 18
years without a final ruling on the merits cannot be considered
reasonable. Although the case
may be complex, and many remedies may have been invoked, in view of the
fact that there is not even a lower court ruling with respect to the
admissibility of the petition and that, since 1994, the appeals lodged by
the Government do not discuss the merits, but only the interpretation of
an appeals court ruling, the Commission considers that it cannot be
insisted that the requirement concerning exhaustion of domestic remedies
be met. For these reasons,
Article 46(2)(c) applies, and the requirement of exhaustion of domestic
remedies is waived.
Period for lodging the petition
In view of the nature of this case, there was no “final
judgment” of which the victims were informed.
In addition, neither the State nor the petitioners took a position
on this point. As the
proceedings have been underway since 1982 without a final judgment, the
requirement of six months contained in Article 46(1)(b) of the Convention
does not apply in this case.
Duplication of proceedings
There is no evidence that this case is pending in another
international proceeding for settlement.
Neither does it represent, from a substantive standpoint, a
reproduction of an appeal already examined by the Commission or another
international entity. Therefore,
the Commission finds that this requirement has been met.
Characterization of the facts
Article 47(b) of the Convention stipulates that if a petition does
not state facts that tend to establish a violation of the rights
guaranteed by the Convention, it shall be considered inadmissible.
The petitioners allege that the State conducted military operations
in the Araguaia region between 1972 and 1975, and that these operations
resulted in the disappearance of 22 guerrillas.
Since that time, the circumstances of the deaths of those who
disappeared have not been investigated, nor have the persons involved been
identified or punished, although the State has in fact acknowledged its
involvement and responsibility and arranged for indemnification.
The petition alleges that the State violated the right of the
petitioners and Brazilian society in general to obtain reliable
information on the facts reported. Such a violation would emanate from two
actions by the State. On the
one hand, the Amnesty Act is presented as an impediment to access to the
justice system and, consequently, the petitioners' and society's access to
complete information on the facts and responsibilities in this case.
On the other, problems in obtaining military documents relating to
the facts on the grounds of national security, and the lack of evidence,
etc., would preclude exercise of the right of access to information and
the opportunity to bury the victims properly.
All of this would violate rights enshrined in Articles 8, 13, and
25 of the Convention.
In addition, the petition characterizes the facts as a violation of
the right to freedom of conscience and religion, Article 12 of the
Convention, as the forced disappearances would deprive the families of the
victims of the right to bury their remains in accordance with their
The State alleged that with the enactment of Law Nº 9140 of
1995–which established a special commission with competence to
investigate the disappearances, locate the bodies, and indemnify the
families of those who disappeared for political reasons–further facts
arose that render the petitioners' claims without substance.
They allege that the aforementioned law acknowledged the State's
administrative and civil responsibility, and indemnified the families of
the victims. The State
therefore alleges that the grounds for the petition no longer have merit.
The petitioners consider that indemnification is not full
reparation of the violation and allege that the State cannot pretend to
have made reparation, through indemnification, for the violation as a
whole, as those responsible for it have yet to be identified and punished.
The State, in turn, alleges that, in view of the Amnesty Act, it is
impossible to investigate individual responsibility and to punish the
agents of the State involved in the
case. The Commission
considers in this case it must examine whether the Amnesty Act enacted,
where pertinent to the facts complained of, establishes a regime of
impunity that would prevent the competent courts from trying and
sentencing the possible perpetrators of the violations denounced.
The Commission considers that, at this stage of the proceedings, it
cannot be stated with certainty whether the measures adopted by the State
constitute "adequate reparation" for the alleged violations. In
this case, it would not be possible for the Commission to determine what
adequate reparation for the violations is, without first determining the
existence and nature of the
possible violations, which can only be determined in the merits phase.
For these reasons, the Commission decides to disregard the State's
position that the provisions of Article 48(b) and (c) of the Convention
If their veracity is confirmed, the facts alleged in the petition
constitute violations of Article I, Article XXV, and Article XXVI of the
American Declaration, and of Articles 1(1), 4, 8, 12, 13, and 25 of the
American Convention. The
Commission considers that the exception contained in Article 47 (b) does
not apply in this case.
For the foregoing reasons, the Commission concludes that it is
competent to hear this case, and that it is admissible under Articles 46
and 47 of the American Convention and Article 1 and 20 of its Statute.
Based on the arguments of fact and law set forth above, and without
prejudice to the merits of the case,
COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with regard to the alleged
violations of Articles I, XXV, and XXVVI of the American Declaration and
Articles 1(1), 4, 8, 12, 13, and 25 of the American Convention.
To notify the parties of this decision.
3. To continue its analysis of the merits of the case, and
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in Washington, D.C., on this 6th day of March 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Robert K. Goldman, Julio Prado Vallejo, and Peter Laurie, Commissioners.
* As prescribed in Article
19(2)(a) of the Commission’s Regulations, Member of the Commission Hélio
Bicudo, of Brazilian nationality, did not participate in the
discussions or the voting on this case.
 Law Nº 9140 of December 15, 1995.
 The Amnesty Act, Law Nº 6.683 of August 28, 1979,
allowed family members of persons who disappeared for political
reasons during the military regime to request a “declaration of
absence,” which generated a presumption that the individual who had
disappeared was dead.
 This remedy seeks to clarify the interpretation of an
obscure or ambiguous ruling, rather than to modify its content.
 Appeal against a ruling that challenges a federal law
demonstrating discrepancy in jurisprudence at subconstitutional level
among the various regions.
 Appeal against an interlocutory decision, reviewed by
the higher court, in this case the Higher Court of Justice.
In this case, the appeal sought to reverse the decision of the
Regional Federal Court that had declared the special appeal
 Brazil ratified the Convention on September 25, 1992.
 See the note from the Government, received on March 6,
1997, and the note from the Conselho
de Defesa dos Direitos da Pessoa Humana [Council for the Defense
of Human Rights], dated Feburary 25, 1997, transmitting that note.
 Brazil is a founding member of the OAS, as it signed
the Charter of the Organization in 1948 and deposited its instrument
of ratification in 1950.
 See the jurisprudence of the Inter-American Court of
Human Rights in this area: the
case of Velásquez Rodríguez,
Judgment of July 29, 1988, Series C, No. 4, paras. 155-157; the case
of Godínez Cruz, Judgment of January 20, 1989, Series C, No. 5, paras.
163- 165; the case of Fairén
Garbi and Solis Corrales, Judgment of March 15, 1989, Series C,
No. 6, paras. 147-150; and the case of Blake
(Preliminary Objections), Judgment of July 2, 1996, Series C, No.
27, para. 35.
 The request would be physically impossible as it is
not feasible to look for bodies in the Amazon jungle after so many
years; it would be legally impossible because no legal provision
obliges the State to indicate where anyone is buried.
 Law Nº 6683/79.
 A remedy which seeks only to clarify the meaning and
scope of a judicial decision, without attempting to modify its
content. See Note 3
 On February 3, 1997, it was decided to summon the
 See the following IACHR Reports: Second Report on the Situation of Human Rights in Peru, of June 2,
2000 (OEA/Ser. L/V/II.106, doc. 59 rev.), Chapter II, para. 215 ff; Third
Report on the Situation of Human Rights in Colombia, of February
26, 1999 (OEA/Ser. L/V/II.102, doc. 9 rev.), Chapter IV, para. 345.
In the context of individual cases, this principle was clearly
affirmed in the following cases:
Report Nº 1/99, Case 10.480 (El Salvador), published in the Annual
Report of the IACHR 1998 (OEA/Ser.L/V/II.102, doc. 6 rev.); Report
Nº 36/96, Case 1843 (Chile), published in the Annual
Report of the IACHR 1996 (OEA/Ser.L/V/II.95, doc. 7); Report Nº
28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311
(Argentina) and 29/92, Cases 10.029, 10.036, 10.372, 10.373, 10.374,
and 10.375 (Uruguay), published in Annual
Report of the IACHR 1992-1993 (OEA/Ser.L/V/II.83, doc. 14).