45. 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 had disappeared.
46. 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 petitioners' claims.
47. 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 12 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 13.
48. 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.”
49. 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 judicatum.
50. 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.
b.
Period for lodging the petition
51. 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.
c.
Duplication of proceedings
12 A remedy which seeks only to clarify the meaning and scope of a judicial decision, without attempting to modify its
content. See Note 3.
13 On February 3, 1997, it was decided to summon the parties.
8