CONCURRING OPINION FROM JUDGE AD HOC ROBERTO DE FIGUEIREDO CALDAS IN REGARD TO THE JUDGMENT FROM THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF GOMES LUND ET. AL. (“GUERRILHA DO ARAGUAIA”) VS. BRAZIL OF NOVEMBER 24, 2010 I. INTRODUCTION 1. The present concurring vote, agreeing, in a general sense, with the collective groundings and conclusions of the Court, all of which have been unanimous, serves to explain and emphasize some fundamental issues for the Brazilian and Continental societies, beyond their respective States,408 from the perspective of one judge, a national of where the serious events and crimes against human rights occurred. 2. The case at hand involves a debate of transcendental importance for society and for the State as a whole, particularly with respect to the Judicial Branch, which will face an unprecedented case where the decision taken by an International Tribunal is completely opposite to domestic jurisprudence which, until this point, has settled. 3. Established Brazilian jurisprudence, having, as a matter of fact, been approved by a recent decision from the highest body of the Judicial Branch—the Federal Supreme Tribunal—clashed over this Court’s soft jurisprudence, by halting observance of jus cogens, that is, of decisive norms which are obligatory to the States, contained in the American Convention on Human Rights409 (also known as “the Pact of San Jose, Costa Rica” from here on, also referred to as “Convention”). In short summary, the reason why the State is found guilty in this Judgment, is as follows: a) enforced disappearance and violated rights of the 62 disappeared persons410 – violation of the rights to juridical personality, right to life, to personal integrity and to personal liberty (Articles 3411, 4412, 5,413 and 7414), the right to a fair trial and of the right to judicial protection 408 One necessary explanation for the understanding of the Brazilian public in general: the terms “State” or “States,” quoted throught the judgment, and also in this vote, mean “Country” or “countries.” The usual practice in Brazil is to use the term “State” to mean a subdivision of the country and not the country as a whole. This is because the Brazilian geopolitical division is in states and not in provinces as is done in much of the Americas. It is my opinion that the language used in the judgments and judicial decisions should be as simple and accessible as possible to the common citizen. After all, they should be aimed at society as a whole, not just to scholars. 409 Adopted in San Jose, Costa Rica, in the framework of the Organization of American States, on November 22, 1969, and entered into international force on July 18, 1978. Brazil acceded on July 9, 1922, and ratified it on September 25, 1992. 410 We will use the term “person” in place of “human being” or “man” in the general sense, pursuant to, the report on Article 1(2) of the Convention: “For the purposes of this Convention, "person" means every human being.” 4 Article 3. Right to Juridical Personality Every person has the right to recognition as a person before the law. 412 Article 4. Right to life 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 413 Article 5. Right to humane treatment 1. Every person has the right to have his physical, mental, and moral integrity respected.