15
wherein the determination of the whereabouts, the localization of the bodily
remains, the clarification of the circumstances of the deaths, and the delivery of
the official archive of information regarding the military operations against the
Guerrilha do Araguaia was requested; c) the Public Civil Suit No.
2001.39.01.000810-5, filed by the Federal Public Prosecutor’s Office in order to
obtain from the State all the existent documents on the military actions of the
Armed Forces against the Guerrilla; d) the secondary private action for the
criminal prosecution of crimes of public action, and e) initiatives in regard to the
request for compensation, such as the ordinary civil action for compensation and
the request for pecuniary reparation in the context of Law No. 9.140/95, of the
Special Commission on Political Deaths and Disappearances of Persons and the
Amnesty Commission pursuant to Law 10.559/02, among other measures of
reparation.
34.
In particular, regarding the Ordinary Action No. 82.00.024682-5, Brazil
noted that on February 8, 2008, a definitive decision on the matter was issued,
and its compliance is underway. On July 10, 2009, the date in which the time
period established for the State to comply with the decision, the Attorney
General’s Office sent “all the available documentation in the hands of the Federal
Union regarding the military operations, particularly in what deals with armed
conflicts, the capture and detention of civilians, recognition of bodies,
identification of victims, expert witnesses investigations, location of the bodily
remains found, and information regarding transfers of civilians, dead or alive, to
any area, which took place in said period of time.” Likewise, said court has
summoned experts to render declarations and documents in their possession
regarding the Guerrilha do Araguaia. On the other hand, the State expressed that
the Public Civil Suit filed by the Federal Public Prosecutor’s Office on August 25,
2001,36 was ruled admissible on December 19, 2005. Nevertheless, due to the
remedies filed by the Federal Union against said ruling, it is not yet of a final
nature.
35.
The Commission argued that the issue of non-exhaustion of domestic
remedies was duly analyzed in the Admissibility Report No. 33/01 on March 6,
2001. It affirmed that three of the four argumentative points of the State, those
related with the Non-compliance Action of the Fundamental Principle No. 153, the
Public Civil Suit, and the specific considerations on the adopted measures of
reparation, are subsequent to the date in which the Report was issued. Moreover,
regarding the Ordinary Action, the Commission explicitly expressed in its
admissibility report that, despite the complexity of the case and the interposition
of many remedies in the context of said process, years have passed without a
final decision and said delay cannot be considered reasonable. For this reason,
the Commission applied the objection enshrined in Article 46(2)(c) of the
Convention and declared the petition admissible. Furthermore, it noted that the
State did not argue in its response to the petition, that the decision of
admissibility which was adopted was based on erroneous information or that it
stemmed from a process wherein the parties’ equality of arms or right to defense
was restricted. It also argued that, in principle, the content of the decisions on
admissibility adopted in accordance with the Convention and the Commission
Rules of Procedure should not be subject to a new substantive analysis. As such,
the Commission requested the Court not to admit this preliminary objection.
36.
The representatives noted that the Commission has already carried out an
analysis of admissibility in the case, and the Court must make reference to it.
Based on the principles of legal and procedural certainty, once the admissibility of
36
Article 129.III of the Federal Constitution establishes that the “Acão Civil Pública” [“Public
Civil Suit”] is a form of institutional function for the defense of diffuse and collective interests