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by it […] was to its detriment.” Given the information contained in the mentioned
State report, Brazil considered that the presentation of the case before the Court
was untimely and “highlight[ed] the lack of a legal interest to conclude the
analysis of the merits of the present case.”
21.
In particular, the State highlighted the measures of reparation adopted in
the present case, stating, inter alia, that it: a) promulgated Law No. 9.140/95, in
which “it promoted the official acknowledgment of responsibility for the deaths
and disappearances that took place during the military regime” and paid
compensation to family members of 59 alleged victims; b) published in August
2007 the book “Direito à Memória e à Verdade – Comissão Especial sobre Mortos
e Desaparecidos Políticos” [Right to Memory and Truth – Special Commission on
Political Deaths and Disappearances of Persons] wherein it established the official
version of the human rights violations committed by State agents, “reinforcing in
this manner, its public acknowledgment of State responsibility”; c) carried out
“various acts of a symbolic and educational nature, that promote the recovery of
memory and truth of the facts which occurred during the […] military regime”; d)
submitted to the National Congress the Project Law No. 5.228/09 on access to
public information; e) pushed forward the project “Memórias Reveladas,”
[“Disclosed Memories”] related with various initiatives regarding the archives and
publication of documents related to the military regime, and f) pushed forward a
campaign to stimulate the delivery of documents that could assist in locating the
disappeared persons. In the same manner, several search initiatives for the
mortal remains and identification of the disappeared members of the Guerrilla
were carried out, including expeditions to the Araguaia region. Given the
abovementioned, the State concluded that the “petitioners” not having a legal
interest in the proceedings is a consequence of the fact that “the measures
adopted [by the State], in addition to those being implemented, attend to the
complexity of [their] requests.”
22.
The Commission noted that the argument of the State does not present
the characteristics of a preliminary objection and it requested the Court to
dismiss it. Brazil initially had a period of two months to present a report on the
compliance of the recommendations of Report on the Merits No. 91/08. Said
period was extended on two occasions and finally expired on March 22, 2009.
Nevertheless, the State presented a partial report on March 24, 2009, and
requested a new extension of six months in order to present additional
information. In analyzing the information presented by Brazil, the Commission
concluded that it did not reflect “the adoption of specific and sufficient measures,
nor of an express commitment in regard to the compliance of the
recommendations.” As follows, it “considered that the procedures enshrined in
Articles 48 and 50 of the Convention were exhausted, and it decided to submit
the case to the jurisdiction of the Court.” On the other hand, it expressed that
there is no provision that regulates the examination of the State’s response to the
recommendations formulated in the Report on the Merits, and there is also not
established a minimum period of time for the Commission to examine the
information provided by the State in regard to the compliance with its
recommendations.
23.
In addition, the Commission expressed that despite the State’s efforts to
implement measures of reparation at a domestic level, the recommendations
contained in the Report on the Merits No. 91/08 and the pleadings included in the
application have not yet been fully complied with; among them are the measures
to: a) assure that the Amnesty Law 6.683/79 “does not continue being an
obstacle for the criminal prosecution of serious human rights violations that
constitute crimes against humanity”; b) “determine, via common law jurisdiction,
the criminal responsibility of the enforced disappearance of the [alleged] victims,”