Gomes Lund v. Brazil
Brazil Fails to Prevent Impunity, Guarantee Right to Truth and Information
In 1972, a small guerrilla movement of students and workers emerged from the region of the Araguaia River in Brazil, seeking to foment a popular uprising to overthrow the military dictatorship which had been in power since 1964. For the next two years, the Brazilian Army brutally suppressed the movement, arresting and torturing the guerrillas. More than 60 were disappeared, their fate still unknown. For nearly 30 years the families of the victims have tried to expose the truth about what happened to their relatives, but have been prevented from doing so by Amnesty laws. (Keywords: torture – impunity – right to the truth)
The Araguaia Guerrilla movement emerged in 1972, made up of members of the Brazilian Community Party, students, and residents of the Araguaia region. They sought to bring an end to the military dictatorship which had ruled Brazil since 1964. In 1973-74 the Brazilian Army conducted a series of operations to destroy the movement, detaining, torturing and disappearing the guerrillas. Nearly 70 people were unaccounted for, disappeared by the military.
In 1979 the military government of Brazil enacted the Amnesty Law which precluded any criminal investigations into “political offenses” carried out during the military rule, and so prevented all attempts to find justice for what happened in Araguaia. The Amnesty Law was maintained by successive democratic governments. In addition Brazil has passed a number of secrecy laws and decrees that give the executive branch almost unlimited discretion to permanently classify records whose disclosure might undermine vaguely defined national security or personal privacy interests. There is no exception for old records or documents that shed light on serious rights violations of either past or present. For the most part, the dictatorship archives remain classified.
Since1982, family members and certain public authorities have commenced various legal claims in an attempt to determine the circumstances of the disappearances, to locate burial sites, and to recover the remains of the victims.
The federal government of Brazil filed every possible substantive and procedural appeal to frustrate the applicants’ attempts to find the truth, until the Supreme Court finally ruled in favor of the applicants. However, the government maintained throughout the process that a search of public records, including army and national archives records, has yielded limited documentation that sheds light only on the general circumstances of the relevant operations.
In recent years, however, journalists and former army officials who claim direct involvement or knowledge of the Araguaia operations have published information on the case, including documentary and photographic material. These documents include descriptions of the geographical area of army operations, names of prisoners, as well as identities of commanders and other forces involved in the operations—suggesting that documents and other evidence is available and that government searches have been inadequately performed. Government agents have also speculated that the relevant archives were incinerated during the dictatorship or shortly thereafter.
In a separate case, on April 30, 2010 the Supreme Court of Brazil upheld the amnesty laws, finding that the actions of the military regime were political in nature and therefore protected.
On August 7, 1995, the applicants filed a petition with the Inter-American Commission on Human Rights, alleging that the amnesty law violated their right to justice and to the truth, which are elements of personal integrity protected by Article 5 of the American Convention on Human Rights. On October 31, 2008, the Commission found that the Convention had been violated.
Due to the inadequate response from Brazil, on March 26, 2009, the Inter-American Commission referred the case to the Inter-American Court, considering it "a new opportunity to consolidate jurisprudence on amnesty laws as they relate to forced disappearances and extrajudicial executions, and on States’ obligation to investigate, prosecute, and punish serious human rights violations.”
The applicants argue that the policy of standing by the dictatorship’s self-amnesty law and “not looking back” places Brazil in sharp contrast with neighbors like Chile and Argentina, which have conducted investigations into past abuses despite similar amnesty laws. The applicants and the Commission argue that, in addition to the specific failures to seek and provide information, the secrecy laws constitute structural obstacles to the pursuit of truth in this case.
The Brazilian government says that in July 2009, it provided all the information that was found in its archives about the Araguaia operations (some 16,000 pages) to the domestic court presiding over the proceedings. The applicants argue, however, that these records do not include any significant information on the actual disappearances or the burial site(s). They also challenge the fact that a ministerial group, lead by the Ministry of Defense and tasked with exhumations, is not subject to any independent oversight.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative filed an amicus curiae brief to the Inter-American Court together with the Commonwealth Human Rights Initiative, the Open Democracy Advice Centre (South Africa), and the South African History Archive.
Recognition of the right to the truth. The American Convention grants victims and the general public a right to the truth about gross or massive human rights violations, including forced disappearances (Article 13, in conjunction with Articles 1, 8 and 25).
Scope of the right. The right to the truth has both an individual and a collective dimension, separate from the right to judicial accountability for gross human rights abuses. The state is required to establish the basic facts of the violations, the general circumstances in which they occurred, as well as their reasons and perpetrators.
Violations in the Araguaia case. Brazil has failed to comply with the right to the truth by failing to disclose or de-classify relevant records held by the armed forces, and by adopting secrecy laws that obstruct access to the truth and shield the perpetrators.
In its ruling, the Inter-American Court held that Brazil’s amnesty law is “incompatible with the American Convention and void of any legal effects,” making Brazil the third country in the region to have its dictatorship-era amnesty law invalidated by the court. The court affirmed its earlier case law on the right to the truth about gross human rights violations, and recognized for the first time that the right to the truth is also “connected to the right to seek and receive information enshrined in Article 13” of the convention. By denying and delaying access by the victims’ relatives to relevant army archives and other information, Brazil had violated their Article 13 right to information, read together with Articles 8 (duty to investigate) and 25 (access to court) of the Convention.
Additionally, the court issued a number of important guidelines on the question of access to information about past human rights violations. These include the question of the burden of proof regarding the (non-) existence of relevant records; the state duty to respond to requests for such information in good faith; and the state’s inability to rely on the “state secrets” doctrine as a basis for denying access to information regarding serious human rights violations.
The implications of the court’s novel recognition of the Article 13 right to information as one of the foundations of the right to the truth are important. As the Justice Initiative argued in its brief, grounding the right to the truth on Article 13 would grant both victims and the general public an unambiguous basis for claiming a judicially enforceable right of access to relevant information held by the state, including classified records. Furthermore, denials of access to information relevant to historical truth would now have to be justified by the state under the strict necessity test of Article 13.2.
The Inter-American Court adopts its judgment on the case, which is made public in December 2010.
The Inter-American Court conducts two days of hearings on the case.
Following a finding of violation (Article 50 report) and inadequate State response, the Inter-American Commission refers the case to the Inter-American Court.
The Supreme Court affirms the decision of the district court.
The district court orders the government to declassify the relevant archives, conduct an investigation into the Araguaia operations, and identify the remains of the disappeared.
Numerous government appeals are ultimately rejected by the Supreme Court and the case is sent back to the district for full trial. On retrial, the government informs the court that no reports on the Araguaia operations were found in the army archives.
On appeal, a federal regional tribunal orders the district court to hear the case.
Relatives start civil proceedings for declaration of the missing, and identification of their whereabouts and/or remains. In 1989, the lawsuit is rejected by a federal district court.
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