42
D. The enforced disappearance of the members of the Guerrilha do
Araguaia
112. The Inter-American Court notes that in the proceeding before it, the State
did not contradict nor did it expressly recognize its international responsibility for
the alleged enforced disappearance of the members of the Guerrilha do Araguaia.
Nevertheless, in a repeated manner, Brazil referred to its domestic recognition of
responsibility and the various measures of reparation adopted regarding the
victims of the military regime, including various of the alleged victims in the
present case.
113. In particular, the State referred to the Law No. 9.140/95, which in Article
1 establishes:
For all legal effects, the persons included in Annex 1 of this Law are
recognized as deceased, for having participated, or for having been accused
of participating, in political activities, during the period of September 2,
1961, to August 15, 1979, and that for said reason, were detained by public
agents, having been disappeared since then, without any news from them.147
114. Brazil included in the referenced Annex 1, and as a consequence,
considered as disappeared victims a total of 60 persons, indicated as alleged
victims in the present case.148 The terms of the Law No. 9.140/95 do not leave
any doubt regarding the assumed responsibility of the State in relation to those
disappearances and on the reproach attributed to said conduct, characterized as
an illicit act of the most serious degree. In the presentation of motives for said
norm, the following is stated:149
The recognition by the State of the disappeared persons and those who have
not perished for natural causes [...] means the reestablishment of the
fundamental rights of said persons as a form of reparation that […] reaches
the level of justice that the State of Brazil owes to those whom its agents
caused harm.
[...] the list of [disappeared persons] contains 136 persons that were
detained by State agents […] who pertained to various arms of what was
known as the security system of the regime of state of emergency in Brazil,
and as of then, no news of these persons were heard. In this way, the illicit
acts of a severe nature carried out by public agents or those in the service of
the public power, were characterized: they were to care for those under their
responsibility and did not.
115. On the other hand, the referenced Law created the Special Commission on
Political Deaths and Disappearances of Persons so as to, among other roles,
locate the bodily remains of the disappeared persons, recognize them as victims,
and where applicable, authorize the payment of compensation. In its final report,
147
Law No. 10.536/02 expanded the period foreseen in Article 1 of the Law No. 9.140/95 of
October 5, 1988.
148
In Annex I of the Law No. 9.140/95 the State also recognized Mrs. Maria Lúcia Petit da Silva
as a victim of enforced disappearance, thereby raising the number of victims of members of the
Guerrilha do Araguaia recognized by the State to 61 persons. For purposes of this Judgment, the
Court does not consider Mrs. Petit da Silva as a victim of enforced disappearance in virtue of the rule
of jurisdiction ratione temporis of the Court (supra para. 16).
149
Motives Exposition No. MJ/352 of Law No. 9.140/95, of August 28, 1995 (brief of annexes to
the answer to the application, tome I, annex 6, folios 5571 and 5572).
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