104
to merely pushing forward the corresponding bill, but rather should assure its
prompt approval and entry into force, pursuant to the established procedures in
the domestic legal code. While complying with this measure, the State should
adopt all the actions that guarantee the effective prosecution, and where
necessary, punishment of the facts which make up the crime of enforced
disappearance by means of the existent measures in place in domestic law.
iii. Access, systematization, and publication of documents in State
custody
288. The Commission requested the Court to order the State to carry out all
the necessary legal actions and modifications in order to make public all the
documents related to the military operations against the Guerrilha do Araguaia.
289.
The representatives requested the Court to order the State to: a) ensure
that all State institutions and authorities be obligated to cooperate with the
handover of information and the full access to all the archives and records on
the possible whereabouts of the disappeared victims in the present case; b)
demand the delivery of the documents that are unlawfully in the hands of
private individuals; c) the adaptation of Brazilian domestic law with the
international parameters of protection to the right to access information; d) duly
prove the alleged destruction of official documents and investigate through the
courts their destruction in order to identify, prosecute, and eventually punish
those responsible, and e) visit the offices of the Armed Forces, by investigators
and individuals specialized in archives foreign to the military structure, whom
should be granted the broadest level of access to the pertinent military archives.
In particular, regarding the Draft Bill Law No. 5.228/09 that will modify the rules
on access to information in the power of the State, the representatives noted
that “it is welcome,” but emphasized that the processing before the Legislative
Power must be streamlined in order for it be approved as soon as possible.
290. The State noted it has adopted various measures to transform the
documentary body of evidence, previously restricted, in instruments that
guarantee and affirm human rights, and added that all the documents of which
there is knowledge of on the Guerrilha do Araguaia are in the National Archive,
available for consultation, though it recognized that said documents do not offer
final information on the location of the bodily remains of the victims. In regard
to the alleged existence of documents related to the Guerrilla do Araguaia under
custody of the Armed Forces, it noted that all the existent documents were
presented and that Decree No. 79.099/77, in force until June 24, 1997,
permitted the destruction of the documents. The investigative procedures in the
forum of the Armed Forces concluded that the destruction of the documents was
made pursuant to said Decree. In addition, it indicated that 98% of the available
documents in the National Archive correspond to records produced by organs
and entities of the State.
291. Lastly, on the Brazilian legislation that regulates the right to information
and that considers restrictions to access based on the security of the State and
society, Brazil emphasized that the State secrecy does not fall on any document
related to the Guerrilha do Araguaia. Nevertheless, it reported that on May 5,
2009, the President of the Republic presented Draft Bill 5.228/09 to the National
Congress, providing a new outlook to the right to information that treats the
guarantee of access to information as a general rule. Article 16 of the bill
establishes that “access to necessary information for the legal and
administrative protection of fundamental rights cannot be denied” and that “the
information of documents that discusses conduct which implies violations of
human rights carried out by public agents or mandates of public authorities
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