67.
First, the Court must assess whether, during the admissibility stage of the case before
the Commission, the arguments that substantiate the preliminary objection filed by the State
corresponded to those submitted to the Court. 33
68.
In this case, during the admissibility stage, the State presented two briefs to the
Commission, one on May 30, 2012, and the other on June 18, that year. In both briefs it
presented similar arguments on the time limit for lodging the initial petition. Subsequently, in
its answering brief during the proceedings before the Court, the State again referred to the
said preliminary objection. Accordingly, the Court notes that the arguments that substantiate
the preliminary objection filed by the State before the Commission during the admissibility
stage correspond to those submitted to this Court; it will therefore proceed to analyze their
content.
69.
The Court notes that the State recognized that no remedies were available to the victims
owing to the Amnesty Law. 34 In other words, there is no dispute between the parties on this
point. Thus, the six-month rule is inapplicable; therefore, the Court must verify whether the
time that passed before the petitioners had recourse to the Inter-American Commission was
reasonable. In this regard, the Court notes that a dispute does exist between the parties
concerning the relevant date for calculating this reasonable time.
70.
The Court observes that although, on August 16, 1993, police investigation No. 487/92
before the São Paulo state justice system was officially concluded (infra paras. 140 to 145), on
December 4, 1995, Law No. 9,140/1995 was promulgated creating the Special Commission on
Political Deaths and Disappearances (CEMDP) (infra paras. 146 to 151) and this Commission
issued its final report in 2007. The Court also notes that it was based on the result of this report
that a complaint was filed before the Federal Public Prosecution Service that initiated
proceedings No. 2008.61.81.013434-2. The closure of these proceedings on January 9, 2009
(infra paras. 152 to 160), was the reason that the initial petition was finally lodged before the
Inter-American Commission on July 10 that year.
71.
In this case, the Court notes that the presumed violation that constituted the reason for
lodging the petition was the impunity of the torture and death of Vladimir Herzog. Based on the
foregoing, it is the Court’s opinion that the petitioners had reasonable expectations that the
State would rectify this situation of impunity following the return to democracy and, above all,
following the final report of the Special Commission created by Law No. 9,140/1995.
Consequently, the Court considers that the specific circumstances of this case, in particular the
impact of the Amnesty Law on the possibility of investigating and prosecuting Mr. Herzog’s
death, the issue of the CEMDP report in 2007, and the actions initiated by the Federal Public
Prosecution Service are, taken as a whole, actions that could have contributed to end the
impunity and, therefore, are relevant facts that allow it to be determined that the initial petition
was lodged within a reasonable time. Consequently, the petition was admissible and, therefore,
the Court decides to reject the preliminary objection presented by the State.
2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when:
a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or
rights that have allegedly been violated.”
33
Cf. Case of Furlan and family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of
August 31, 2012. Series C No. 246, para. 29, and Case of Favela Nova Brasília v. Brazil, para. 78.
34
See answering brief of the State, para. 161 (merits file, folio 372).
16