31
A. Arguments of the parties
82.
The Inter-American Commission indicated that the practice of enforced
disappearance is a crime against humanity, and that the present case “covers the
particular historical significance of the facts that occurred in a context of
systematic practices of arbitrary detentions, torture, executions, and enforced
disappearances perpetrated by the security forces of the military government,
where the state agents […] used the official investiture and resources offered by
the State to [carry out] the disappearances of the members of the Guerrilha do
Araguaia.” Except in a few initial cases of arrest and torture, all the detained
members of the Guerrilla were disappeared. The perpetrators hid all the evidence
of their crimes and escaped all punishment; “attempting to create ‘a legal limbo’
implemented via the State’s refusal to recognize that the victims were under its
custody, or providing contradictory information regarding the whereabouts,
intentionally impairing the victims from exercising their rights, and keeping the
next of kin in an information gap regarding their whereabouts or situation.”
Although the Inter-American Commission valued the acknowledgement of
responsibility for the enforced disappearances carried out at a domestic level and
the payment of certain compensations, it highlighted that the next of kin of the
disappeared persons remain without minimum information regarding the events
and the whereabouts of their loved ones, with almost forty years having passed
since the events took place. Based on the foregoing, it requested the Court to
establish that the State violated the right to juridical personality, life, and
personal integrity and liberty of the disappeared persons, enshrined in Articles 3,
4, 5, and 7 of the American Convention, respectively, in relation to the general
obligation to respect rights, enshrined in Article 1(1) of the same instrument.
83.
The representatives noted that the extermination of the Guerrilla was part
of a pattern of repression, persecution, and systematic and generalized
elimination of the political opposition to the Brazilian dictatorship, and marked
one of its bloodiest periods. Pursuant to the information available, a large number
of alleged victims were under State custody at some point prior to their
disappearance. The prolonged isolation and solitary confinement the alleged
victims underwent constituted cruel and inhumane treatment. The modus
operandi of the State agents in the detentions throughout the region, as well as
in other enforced disappearances or arrests of the political opposition in Brazil,
allows for the inference that the alleged victims were tortured during the period
in which they were under State custody. The circumstances of the disappearance
have not be ascertained, the bodily remains have not been located, identified,
and delivered to their next of kin, and those responsible have not been
investigated, prosecuted, or punished. As a consequence, they asked the Court to
declare the aggravated responsibility of the State and apply the legal
consequences which ensue, for the violation to the right to juridical personality,
to life, to personal integrity, and to personal liberty, enshrined respectively in
Articles 3, 4, 5, and 7 of the American Convention, in relation with Article 1(1) of
the same treaty.
84.
In the public hearing, the State noted that “this is a historic moment, in
which the Brazilian State reaffirms its responsibility for the violations of human
rights which took place during the tragic episode known as the Guerrilha do
Araguaia. This is also another opportunity to honor the deceased and the
victims.” On the other hand, the State referred to various measures adopted,
among many others, the Law No. 9.140/95 and the publication of the Report
Derecho a la Memoria y a la Verdad [Right to Memory and the Truth]. Moreover,
it did not present specific allegations regarding the facts of the enforced
disappearances, which allegedly occurred in the present case. Nevertheless, it
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