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Gomes Lund et. al. v. Brazil

last modified Aug 21, 2012 11:46 AM

Case number:
Series C No. 219
Country:
Brazil
Date of decision:
24 November 2010
Court / Arbiter:
Inter-American Court of Human Rights ( International / IACHR )

Relevant law :

Decision:

The right to truth about gross human rights violations arises from Article 13 of the American Convention on Human Rights in combination with other rights. A State may not legitimately deny access to information about gross human rights violations on grounds of state secrecy, and must entertain requests for such information in good faith. The burden of proof regarding the non-existence of relevant records lies with the state.


Keywords:
Burden of proof (including requests for additional evidence)
Freedom of expression (including RTI as element of or integral to)
Human rights / Right to truth
National security (including defense, intelligence, state security, state secrets, secrecy laws)
Public interest (including public interest override, information of public interest)
Security sector (including intelligence bodies, military, police)

Case details:

Facts

Since 1982, relatives of the victims sought to discover the truth about the outcome of operations conducted by the Brazilian army between 1972 and 1975, which aimed to eradicate a small leftist guerrilla movement known as the Guerrilla do Araguaia. Allegations of arbitrary detention, torture and forced disappearance of some 70 people, including local civilians, were supported by testimonies and documents provided by journalists and former army officials. However, amnesty laws enacted by the Brazilian dictatorship in 1979 and preserved by subsequent democratic governments precluded any criminal investigation into ‘political offenses’ carried out during military rule. In addition, the Brazilian Government refused to comply with several court orders to disclose information related to the Araguaia operations, filing appeal after spurious appeal.

In 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. Applicants filed a petition with the Inter-American Commission on Human Rights, which in turn referred the case to the Inter-American Court of Human Rights.

Decision

The Court recognized for the first time in its case law that the right to truth arises from the right to seek and receive information guaranteed by Article 13 of the American Convention, in addition to Articles 8 and 25 guaranteeing the right to an effective remedy for Convention violations. When a right to truth claim is made, a state is under a duty to respond in good faith to the requests of investigating authorities or the victims and their relatives.  Neither ”state secrets,” nor ”confidentiality of information,” or ”national security” may serve as legitimate grounds for the non-disclosure of information about serious human rights violations (para. 202). Limitations on access to such information may only be justified under the necessity test of Article 13(2). The burden of proof regarding the non-existence of relevant records lies with the state (para. 211).

The Court further held that a decision to refuse access to information can never depend exclusively on a state body whose members are suspected of committing the illicit acts (para. 202).

By denying and delaying access by the victims’ relatives to relevant army archives and other information, the government had violated their Article 13 right to information, read together with Articles 1(1) (obligation to respect rights and freedom), 8(1) (duty to investigate) and 25 (access to court) of the Convention. The Court held that Brazil”s amnesty law is ‘incompatible with the American Convention and void of any legal effects’ (para. 325).

Resources:

More information on the case.

Order of the Court on the request for provisional measures.

Written comments to the Inter-American Court of Human Rights (in Portuguese, Spanish) (Open Society Justice Initiative).

Judgment of the Court.