4
adopted earlier by the São Paulo State Court constituted material res judicata and that the statutory
limitations for the crimes perpetrated against the alleged victim had expired.
14.
According to the petitioners, that decision effectively exhausted their remedies
under domestic law , and their petition is admissible w ith respect to violations of Articles I, XVIII,
XXV, and XXVI of the American Declaration; Articles 1, 2, 5, 8, and 25 of the American
Convention; and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish
Torture.
B.
Position of the State
15.
The State preliminarily contends that it has not committed an omission w ith respect
to the acts denounced in this petition, and that in fact it has formally recognized its responsibility for
the death and arbitrary detention of the alleged victim. In effect, the State maintains that it has
adopted a series of reparation and non-repetition measures related to the alleged victim’ s death. The
State points out that in March 1996, the Special Commission on Political Deaths and
Disappearances recognized the State’ s responsibility for the death of the alleged victim, in
accordance w ith the provisions of Article 4, I, “ b” of Law No. 9.140/95, and that as a result, it
granted monetary reparations to his w idow , Clarice Herzog. The State notes that the alleged
victim' s death played a fundamental role in the process of re-democratization in Brazil by exposing
the human rights violations perpetrated against political prisoners.
16.
Further, the State refers to various initiatives adopted in order to preserve the
alleged victim’ s right to memory, for example, the launch of the book “ Right to Memory and Truth,”
produced by the Special Commission on Political Deaths and Disappearances, w hich includes an
account of the alleged victim’ s professional career and the violations carried out against him. The
State also observes that in 2009 it supported the creation of the “ Vladimir Herzog Inst itute,” w ith
the goal of helping to protect the right to life and access to justice. In December 2011, the State
adds, the Human Rights Secretariat of the Office of the President of the Republic aw arded the
Vladimir Herzog Institute the national human rights prize, in the “ Truth and Memory” category, for
its project “ Resisting Is Necessary” (Resistir é preciso), sponsored by the federal government.
Moreover, the State points to the creation, on May 16, 2012, of the National Truth Commission,
instituted under Law No. 12.528, dated November 18, 2011.
17.
With respect to the petition’ s admissibility requirements, the State contends, first of
all, that the petition is inadmissible because the IACHR lacks competence ratione temporis to
examine alleged violations of the American Convention or the Inter-American Convention to Prevent
and Punish Torture. In that regard, t he State maintains that the alleged violations w ere carried out
prior to Brazil’ s ratification of those instruments, on September 24, 1992, and September 6, 1989,
respectively. In other w ords, Brazil contends that the ratification of both instruments took place
after the acts of torture against the alleged victim, on October 25, 1975.
18.
Moreover, the State argues that the petition is also inadmissible because it w as
untimely, and thus does not meet the requirements established in Article 46 .1.b of the American
Convention and Article 32 of the IACHR Rules of Procedure. On that point, the State maintains that
the relevant dates to analyze the deadline for lodging this petition are either August 28, 1979, or
August 18, 1993. In either case, according to the State, the petition w as lodged outside the period
of six months established in Article 46 .1.b of the American Convention; nor w as it lodged w ithin a
reasonable period of time, as established in Article 32 .2 of the Inter-American Commission’ s Rules
of Procedure.
19.
With respect to the first date, the State observes that, in the context of the civil
action for declaratory judgment filed by the alleged victim’ s next of kin, a judgment w as handed
dow n on October 12, 1978, and determined the Federal Union’ s responsibility and the appropriate