80
Federal Court noted that the purpose of said action could not be deemed satisfied
merely by the actions carried out by the State in regard to the referenced Law,
given that other obligations remained, among others, the right to access to
information of the next of kin of the victims. Moreover, the Court highlights that
the State had indicated that by means of the Special Commission documents and
information had been gathered on the Guerrilha do Araguaia, (supra para. 207),
these documents were not offered to the Judge of the Ordinary Action until 2009.
211. In the opinion of this Court, the State cannot seek protection in arguing
the lack of existence of the requested documents; rather, to the contrary, it must
establish the reason for denying the provision of said information, demonstrating
that it has adopted all the measures under its power to prove that, in effect, the
information sought did not exist. It is essential that, in order to guarantee the
right to information, the public powers act in good faith and diligently carry out
the necessary actions to assure the effectiveness of this right, particularly when it
deals with the right to the truth of what occurred in cases of gross violations of
human rights such as those of enforced disappearances and the extrajudicial
execution in this case. To argue in a judicial proceeding, as was done in this case,
the lack of evidence regarding the existence of certain information, without at
least noting what procedures were carried out to confirm the nonexistence of said
information, allows for the discretional and arbitrary actions of the State to
provide said information, thereby creating legal uncertainty regarding the
exercise of said right. It is worth mention that the Federal Judge of the First
Instance ordered the Union to render documents, on June 30, 2003, in a period
of 120 days, to which six years passed, wherein the Union filed various remedies
before it was effectuated, resulting in the defenseless of the next of kin of the
victims and it affected their right to receive information, as well as their right to
know the truth of what occurred.
212. Based on the preceding considerations, the Court concluded that the State
violated the right to seek and receive information enshrined in Article 13 of the
American Convention, in relation with Articles 1(1), 8(1), and 25, to the
detriment of Julia Gomes Lund, Maria Leonor Pereira Marques, Antonio Pereira de
Santana, Elza Pereira Coqueiro, Alzira Costa Reis, Victória Lavínia Grabois
Olímpio, Roberto Valadão, Julieta Petit da Silva, Aminthas Aranha (or Aminthas
Rodrigues Pereira), Zélia Eustáquio Fonseca, Acary Vieira de Souza Garlippe,
Luiza Monteiro Teixeira, and Elza da Conceição de Oliveira (or Elza Conceição
Bastos).
213. On the other hand, the Court has information on four next of kin indicated
as alleged victims whom filed the Ordinary Action, who passed away prior to
December 10, 1998. Regarding these persons, the Court will not rule on the
State’s responsibility due to the rule on ratione temporis jurisdiction. In addition,
the Court has information that notes that five next of kin whom filed said action
passed away, even though, of the body of evidence, their dates of death cannot
be inferred conclusively. In relation to said persons, the Court has stated (supra
para. 181) that their next of kin or legal representatives must present to the
Court, in a period of six months as of notification of the present Judgment, the
documentation that proves that the date of death is subsequent to December 10,
1998, so as to confirm their condition as victims in the present case, pursuant to
the abovementioned standards.322
Forces carried out in 1993 [...],” brief of the Attorney General of the Union of July 10, 2009, supra
note 274, folios 3230 and 3233.
322
The people that died before Brazil acknowledged the contentious jurisdiction of the Court are:
Lulita Silveira and Silva, Cyrene Moroni Barroso, Edwin Costa and Walter Pinto Ribas. On the other
hand, the persons that are deceased whose date of death was not specified are Ermelinda Mazzaferro
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