83
on December 10, 1998, the date in which Brazil recognized the jurisdiction of the
Court, there was a pending decision regarding a remedy of the State opposing a
determination by a judge of first instances for it to present information on the
Guerrilha do Araguaia. Nevertheless, after an appeal and other remedies filed by
the State, those of which were rejected by the superior tribunals (supra paras.
191 and 204 to 208), the decision became res judicata on October 9, 2007 (supra
para. 191). It took more than seven months for the case files to return, on May
2008, to the judge of first instance in attempts to initiate the execution of the
ruling.330 Finally, despite said final decision, the execution of the judgment did not
commence until 18 months later, on March 12, 2009 (supra para. 191). Even
though the judicial authorities ordered the handover of documentation, the
Federal State did not offer it based on various arguments and filing numerous
motions, ultimately being provided several years after the request. In effect, the
Court notes that during the processing of the Ordinary Action, the State affirmed
in 1999, that “there was no minimal reasonable evidence of the existence of an
alleged ‘report on the [G]uerrilha do Araguaia,’” and in April of 2000, the Ministry
of Defense reported on the non-existence of the mentioned report (supra para.
191), while, on July of 2009, the Union presented extensive documentation on
the Guerrilha do Araguaia (supra paras. 192 and 210).
223. In regard to the harm generated due to the length of the procedure in the
legal situation of the persons involved, as has been done in previous cases,331 the
Court does not consider it necessary to analyze this element in order to
determine the unreasonableness of the term of the Ordinary Action filed in the
present case.
224. The Court states that, since December 10, 1998, nine years have passed to
date before the decision became final, on October 9, 2007, and 11 years passed
before its execution was ordered, on March 12, 2009, thus excessively surpassing a
period, which could be deemed reasonable.
225. The Inter-American Court, as a consequence, concluded that the Ordinary
Action in the present case exceeded a reasonable period, and therefore, Brazil
violated the right to fair trial [judicial guarantees] established in Article 8(1) of
the American Convention, in relation to Articles 13 and 1(1) of the treaty, to the
detriment of the persons stated in the terms of paragraph 212 and 213 of the
present Judgment.
F. Normative Framework
226. The Commission and the representatives referred in their respective briefs
to the non-compatibility of the domestic law and the American Convention in
what regards the right to information. Nevertheless, they did not specifically
demonstrate the facts in which the normative framework is the foundation for the
alleged restrictions on access to information. This Court notes that of all the
norms indicated by the parties, only the Law No. 8.159/91 was applied to the
case in what matters, which constituted the legal foundations used by judicial
organs to request the State to provide information on the Guerrilha do Araguaia
within the Ordinary Action proceeding. Brazil did not base its denial of the
information on the Guerrilla on any restriction established in the law, but rather
330
Cf. Information from the Federal Judge of First Instance, proceeding 82.00.24682-5.
Available at http://processual.trf1.jus.br., last visited on October 8, 2010.
331
Case of Kawas Fernández, supra note 188, para. 115, and Case of Garibaldi, supra note 18,
para. 138.
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