In view of this, the Commission has competence ratione temporis to decide whether in the
period prior to September 25, 1992, date of ratification of the Convention by the State, there
were violations of Article I, Article XXV, and Article XXVI of the American Declaration.
Similarly, the Commission has competence by reason of the time involved with respect to the
alleged violations of Articles 1(1), 4, 8, 12, 13, and 25 of the American Convention, as the
alleged violations of these articles would be in the nature of continuing violations. 9
39. There is no doubt or disagreement among the parties that the facts described in the
petition took place within Brazilian territory, in an area subject to the territorial jurisdiction of
the State. Therefore, the Commission has competence ratione loci.
40. Regarding the passive competence ratione personae [by reason of the person concerned],
the petitioners attribute the violations to a State Party, in this case, Brazil. With respect to the
Commission's active competence ratione personae [by reason of person], the petitioners allege
that the aforementioned violations were committed to the detriment of the direct victims of
those violations, that is, those who disappeared or died, their families, and Brazilian society.
Regarding the active aspect of the Commission's competence ratione personae, Article 44
states that any person or group of persons, or any nongovernmental entity legally recognized
in one or more member states of the Organization may lodge petitions with the Commission. It
was not disputed that the petitioning entities are so recognized or that they may therefore
lodge petitions on behalf of the victims in this case.
B.
Other admissibility requirements
a.
Exhaustion of domestic remedies
41. The ancillary nature of the protection afforded by the inter-American system makes it
necessary, before processing a petition, to establish whether the petitioners attempted to
obtain reparation of the violation within the domestic law of the State challenged. In this case,
both parties have submitted substantive allegations with respect to the exhaustion of domestic
remedies.
42. From the documents submitted in the process, it is evident that the families of 22 of those
who disappeared attempted to obtain information on the whereabouts of those individuals
through judicial proceedings instituted in 1982. They based their request on natural law and on
instruments of international humanitarian law. They requested information to be produced on
the guerrilla war and the circumstances involving the disappearance of the 22 guerrillas, and
referred to the existence of an armed forces report that would have been completed on
January 5, 1975, and would contain the information required to clear up the case.
43. In these judicial proceedings, the Government made five preliminary objections, which
were rejected by Judge Volkmer de Castilho on September 24, 1982. The State denied the
existence of the conflict, the disappearances, and the requested documents. It added that if
such documents existed, they could not be produced owing to their secrecy. Having rejected
these objections, the judge proceeded –from 1982 to 1985– to question witnesses and request
documents in the Governments' possession.
44. On March 27, 1989, the same court, now presided over by Judge Leal de Araújo, dismissed
the case without ruling on the merits, on the grounds that it was physically and legally
impossible to respond to the request 10. The judge also considered that as the Amnesty Act of
1979 11 made it possible to apply for a “declaration of absence” in the case of those who
disappeared, this specific legal remedy precluded the invocation of another more general
remedy.
9 See the jurisprudence of the Inter-American Court of Human Rights in this area: the case of Velásquez Rodríguez,
Judgment of July 29, 1988, Series C, No. 4, paras. 155-157; the case of Godínez Cruz, Judgment of January 20, 1989,
Series C, No. 5, paras. 163-165; the case of Fairén Garbi and Solis Corrales, Judgment of March 15, 1989, Series C,
No. 6, paras. 147-150; and the case of Blake (Preliminary Objections), Judgment of July 2, 1996, Series C, No. 27,
para. 35.
10 The request would be physically impossible as it is not feasible to look for bodies in the Amazon jungle after so
many years; it would be legally impossible because no legal provision obliges the State to indicate where anyone is
buried.
11 Law Nº 6683/79.
7