69
the Inter-American Commission considered that the State did not justify the more
than 25 years that have passed until a final judgment was rendered. The other
judicial remedies filed in order to obtain information regarding the Guerrilha do
Araguaia also have not been effective to date, nor have they produced a final
judgment. Based on the unjustified delay and the ineffective actions filed of a
non-criminal nature, the Commission requested the Court to determine that the
State violated Articles 8 and 25 of the Convention, consistent with Article 1(1) of
the same, to the detriment of the disappeared victims and their next of kin, as
well as the next of kin of the executed person.
185. The representatives agreed, in substance, with the arguments of the
Commission and added that the silence, the refusal to disclose documents, or the
failure of the authorities to prove the destruction of said documents, clearly
demonstrates the State’s violation to access to information. Despite the alleged
destruction of documents on behalf of the Armed Forces, in 2010, the Air Force
handed over various documents, those of which were copies of documents
obtained by the Special Commission. Therefore, these files, while they do not
provide sufficient information to ascertain the whereabouts of the victims, they
demonstrate that the documents exist and had not been disclosed previously. The
mechanisms created by the State, the inefficiency of the class actions filed to
access information, and the search missions carried out by the State, as well as
the legislative and administrative measures on the restriction to access to
confidential information in State custody, have prevented the reconstruction of
the facts, and consequently, to the truth. Given the foregoing, they argued that
the State violated the rights and obligations enshrined in Articles 1(1), 2, 8, 13,
and 25 of the Convention.
186. The State reiterated the existence of various norms that regulate the
systematization and publication of information on those politically deceased and
disappeared, approved during the constitutional regime. Nevertheless, the legal
panorama that regulates this right will be substantially reformed if the legislative
proposal of Law No. 5.228 of the Executive Power, sent to the National Congress
in February 2009, is approved (infra paras. 291 and 293). On the other hand,
Brazil recalled the various measures adopted, among them the Project Memories
Revealed, and emphasized the achievements obtained by the Special
Commission, which was able to reconstruct many episodes of death and enforced
disappearances that occurred during the military regime. Likewise, it reported on
the wide and complex archive system, which is available for consultation,
depending on the “release” of the legal terms of their classification. In the
framework of compliance of the judgment of the Ordinary Action, on July 10,
2009, it handed over copies of thousands of pages of documents on the Guerrilha
do Araguaia, which represent all the information known and recorded in the
forum of the Union regarding the Guerrilla. It affirmed that the specific
documents related to the Guerrilha do Araguaia are not restricted due to public
and State security reasons. Likewise, the Army, the Navy and the Air Force
reported that they do not have a single document in their archives from that
period given that they have destroyed them pursuant to the regulations in force
during that period. The Navy informed that specific documents disseminated via
the media regarding the Guerrilla, had been extracted by unlawful means from
the archives prior to their destruction. The Air Force also indicated that despite
the fact that documents had been destroyed; some documents that contained
generic information were made available to the National Archive. The destruction
of documents related to the military regime took place pursuant to Decree No.
79.099, of January 6, 1977, to which individual responsibilities of officials cannot
be determined. Lastly, Brazil considered that the Public Civil Suit filed by the
Federal Public Prosecutor’s Office had been fully attended to in the orders of the
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