Case Summary and Outcome

The Inter-American Court of Human Rights found that Brazil was responsible for the violations to the rights to judicial guarantees and judicial protection, to know the truth and to personal integrity of Mr. Herzog’s wife, sons, and mother. According to the IACtHR, the State failed to investigate and prosecute the crimes (murder, torture, and others) committed by State officials against the journalist Vladimir Herzog, who was persecuted by reason of his political preferences in the 70’s. The IACtHR in its judgement recalled that crimes against humanity are imprescriptible and therefore, Brazil’s obligation to investigate and clarify the circumstances in which the journalist was murdered and tortured had never ceased; nonetheless the State did not comply with it. Moreover, the Court stated that amnesty law in this case had been used to deprive the victims from their legitimate right to be involved in a trial. 

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Facts

Vladimir Herzog was a Croatian journalist and a member of the Brazilian Communist Party (PCB). He was murdered and tortured amid the military regime’s rule established in 1964 in Brazil. The government of that time was characterized by repressive and violent policies. For instance, in 1973 the Operation Radar was created in order to dismantle the PCB and its members. As a consequence, many people were killed, detained, and disappeared.

On October 24, 1975, DOI/CODI agents went to TV Cultura, the place in which Mr. Herzog worked. They asked him to accompany them in order to give a statement. Nonetheless, the director of the television channel intervened, and they agreed that Mr. Herzog could make a “voluntary” statement the following morning. Consequently, on October 25, Mr. Herzog presented himself voluntarily to give the statement, but instead he was “deprived of his liberty, interrogated and tortured” [para. 122]. However, the official version of the events was that Mr. Herzog committed suicide by hanging himself. Expert reports and press releases pointed that way.

These events caused a huge impact in Brazilian society, which held strikes for several days directed by both the journalists’ association and by university students and professors.

In response to these developments the military police investigation No. 1173-75 was opened in order to clarify the circumstances of the alleged suicide. Expert opinions were heard, and the investigation determined that “Vladimir Herzog died from suicide by hanging. That being the case and considering that neither the military criminal code nor military regulations had been violated, the investigations were closed. This decision was confirmed on February 12, 1976, by the Military Jurisdiction” [para. 128].

After these decisions were taken, in April 1976, Ivo and André Herzog started proceedings to obtain a “declaration of the responsibility of the Federal Union for the arbitrary detention, torture and death of Vladimir Herzog” [para. 130]. As a consequence of this action on October 27, 1978, a federal judge delivered a judgement in which he established that Mr. Herzog’s detention had been illegal, and that there was evidence that he was tortured. He also stated that Mr. Herzog did not kill himself. Likewise, he established that the existent reports of death which claimed that he committed suicide, and similar documents, were fabricated. 

This judgement was appealed by the Union, but the decision was upheld and added by the Federal Appeals Court, which stated that the Union had a legal obligation to compensate the damages arising from Mr. Herzog’s death. The Union filed a reconsideration action, but it was denied, and the decision became final on September 27, 1995.

Simultaneously, in 1992 the magazine “Isto é, senhor,” published an interview in which “Pedro Antonio Mira Grancieri, known as “Captain Ramiro,” stated that he had been the only person responsible for the Vladimir Herzog’s interrogation” [para. 140]. Consequently, a member of the Congress asked the Public Prosecution Service to investigate his participation on the murder. Thereby, a police investigation began, but later it was closed as several judges found that the procedural requirements were not met because a previous military investigation was held.

Later, on December 4, 1995, a new law recognizing the responsibility of the Brazilian State for murdering several people for political reasons was promulgated. It established a Commission in order to identify individuals who had died from unnatural causes in police stations or similar places, who committed suicide due to pressures or fear, and who died during public demonstrations or armed conflicts with the security forces in the period between September 2, 1961, and August 15, 1979. This law also established the possibility of awarding pecuniary compensation to victims. Using this law Clarice Herzog requested the investigation of Vladimir Herzog’s death, and she was awarded a monetary compensation. 

In 2007, the special commission stated in a report that, according to evidence and other journalists’ testimonies, Mr. Herzog was tortured and murdered in the São Paulo DOI–CODI offices. In response to these findings, the same year a lawyer asked the “Federal Public Prosecution Service to investigate the criminal acts and abuse perpetrated against political opponents of the military regime, understanding that the legal framework then in force obliged the State to investigate and punish any crimes against humanity that had been committed” [para. 152].  

This investigation was then closed, as it was claimed by the prosecutors and then upheld by a judge, that: (i) res judicata existed; (ii) at the time in which the circumstances occurred crimes against humanity were not defined by law yet; and (iii) that those crimes were not imprescriptible, according to Brazilian law. However, afterwards, as a result of the work made by the National Truth Commission a rectification towards the cause of death recorded on Vladimir Herzog’s death certificate was done. 

This case was brought initially by the Center for Justice and International Law (CEJIL), the Inter-American Foundation for the Defense of Human Rights (FIDDH), the “Santos Días” Center of the Archdiocese of São Paulo and the “No More Torture” Group of São Paulo to international instances. They filed a petition to the IACmHR, which found that Brazil was internationally responsible for “a. The violation of the rights recognized in Articles I, IV, VII, XVIII, XXII and XXV of the American Declaration; b. The violation of the rights recognized in Articles 5(1), 8(1) and 25(1) of the American Convention, in relation to Articles 1(1) and 2 of this instrument; c. The violation of Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture (hereinafter also “the ICPPT”)” [para. 2].

The State filed nine preliminary objections arguing the lack of jurisdiction of the IACtHR due to temporary issues and to the nature of the matters discussed. According to the State it “formalized its adhesion to the American Convention by the issue of a decree on November 6, 1992, and that it had accepted the contentious jurisdiction of the Court on December 10, 1998” [para. 20]. Therefore, in its criteria a criminal investigation that began before December 10, 1998, could not generate international responsibility, even if the proceedings continued taking place after that date. The facts relating to Vladimir Herzog occurred in 1975. Moreover, the State claimed that the IACtHR had no competence regarding the ICPPT (Convention against torture).

Conversely, the IACmHR and the representatives of the victims claimed that there was no doubt that the IACtHR was competent, as there were not facts in discussion that happened prior to December 10, 1998. Likewise, both parts argued that there was matter jurisdiction for the principle of competence, and due to a reiterated practice adopted by the IACtHR of applying “the ICPPT in order to establish the scope of State responsibility in cases relating to failure to investigate acts of torture” [para. 33].

The IACtHR decided to study the case considering that some of the possible human rights violations occurred after December 10, 1998. According to the IACtHR “In that case, the Court has jurisdiction to examine and rule on possible human rights violations relating to an investigation procedure that occurred following the date of acceptance of the Court’s jurisdiction, even when the procedure may have started before the acceptance of its contentious jurisdiction” [para. 28]. Additionally, the Court considered that it was competent to judge violations to the ICPPT by virtue of article 62 of ACHR. “Based on these considerations, the Court reiterates its consistent case law that it is competent to interpret and apply the Convention against Torture and to declare the responsibility of a State that has agreed to be bound by that Convention and has also accepted the jurisdiction of the Inter-American Court of Human Rights” [para. 38].

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Decision Overview

The IACtHR delivered the judgement with Eduardo Ferrer Mac-Gregor Poisot as President. The main issue before the Court was determining whether Brazil had violated the rights of Mr. Herzog’s wife, sons and mother to judicial guarantees, judicial protection, the right to know the truth and the right to personal integrity, as per articles and 5, 8, and 25 of the ACHR, by the actions or omissions committed when investigating and prosecuting Mr. Herzog’s death. 

The Commission argued that the detention, torture, and murder of Vladimir Herzog took place in the context of gross human rights violations during the Brazilian military dictatorship and, particularly, within an acknowledged systematic pattern of repressive actions against the Brazilian Communist Party (PCB). It also indicated that the actions aimed at punishing the supposed political opinions and activism of the journalist and had the effect of threatening and intimidating other journalists who were critical of the military regime.

It considered that the impunity and concealment of the truth in this case had prejudicial effects on the exercise of the right to freedom of expression, in general, and on the right to information in the country. In the Commission’s opinion, freedom of expression had been a specific objective of the military repression in all the countries of the Southern Cone, by co-option and by direct control of the media, as well as by violently attacking independent journalists and critics of the regime, resulting in detention, torture, and murder in many cases.

Likewise, the representatives considered that Brazil’s responsibility in this case was aggravated because it involved a crime against humanity, since the arbitrary detention, torture and death of Vladimir Herzog was not an isolated act but occurred in a context of massive and systematic violence against those who were considered political opponents of the military regime. Moreover, they “argued that Brazil was responsible for violating the obligation to ensure the right to freedom of expression owing to the failure to investigate, prosecute and punish those responsible for the gross human rights violations committed against the journalist Vladimir Herzog” [para. 188].

Conversely, the State argued that the presumed victims had never been “party to a judicial proceeding relating to the case in question, so that it was impossible that Article 8(1) of the American Convention and Article 8 of the ICPPT had been violated” (para. 193). Similarly, it claimed that imprescriptibility of gross violations of human rights could only apply in the case of torture after Law No. 9455/97, which defined it as a crime. Thereby, this and other international provisions could not be applied to Mr. Herzog’s case. 

The IACtHR studied the case and began by establishing that unlike other precedents, in Brazil’s case most of the political crimes committed should have been punished and prosecuted, because they were not committed in a context of war acts but in the frame of a “persecution of politicians, activists, members of trade unions, journalists, artists and any person who the dictatorship considered dissident or a danger to its power” [para. 209]. 

Then, the Court proceeded to analyze the imprescriptibility of crimes against humanity and its relevance for Mr. Herzog’s case. In that regard, the Court determined that the prohibition of crimes against humanity existed since the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity adopted by the United Nations General Assembly on November 26, 1968, and other international instruments in which no statute of limitations was established for those crimes. Therefore, the ACHR is only declarative as it did not create any new standard, and only reaffirmed pre-existing principles of international law. Consequently: (a) States must apply the content of this Convention even though they have not ratified it, and (b) regarding its temporal sphere, it should be applied even to crimes committed before its entry into force, because what would be applied would not be the treaty-based norm of itself, but rather a pre-existing customary norm” [para. 215].

Accordingly, the Court highlighted that the prohibition of crimes against humanity is a peremptory norm of international law (jus cogens), which implies that it is accepted and recognized by the international community and can only be derogated by subsequent norms of general international law. Thereby, States are compelled to avoid the commission of those crimes, and even if they occur, they are obliged to ensure that the conducts are investigated and prosecuted. 

Continuing with the particular case the Court noted that there was no dispute between the parties regarding Brazil’s responsibility for the arbitrary detention, torture, and murder of Vladimir Herzog, but there existed a disagreement towards the prosecution and investigation of those crimes, as well as its characterization as crimes against humanity. However, the Court decided that the crimes committed against Mr. Herzog should be considered as crimes against humanity, because of two main reasons. First, because this category of crimes exists in the international community since at least 1945. Second, because crimes against humanity are a peremptory norm of international law (jus cogens), which means not only Brazil but also every State must prosecute and punish those responsible for such conducts.

On the other hand, the Court also stated that amnesty laws violate de State’s obligations to investigate and prosecute crimes against humanity, as it deprives victims from being heard in a trial and restricts the capability of punishing perpetrators. 

Taking into account the above arguments, the Court indicated that in cases of crimes against humanity the community of States is entitled to apply universal jurisdiction aimed to guarantee the absolute prohibition of those kind of crimes “In this regard, when considering whether to exercise the universal jurisdiction to investigate, prosecute and punish perpetrators of crimes such as those in this case, States must comply with certain requirements of customary international law: (i) that the crime to be prosecuted is a crime under international law (war crimes, crimes against humanity, crimes against peace, slavery, genocide), or torture; (ii) that the State in which the crime was committed has not proved that it has made an effort in the judicial sphere to punish those responsible, or its domestic laws prevent the initiation of such efforts owing to the application of devices that exclude responsibility, and (iii) that it should not be exercised in an arbitrary manner or to satisfy interests other than those of justice, in particular, for political purposes” [para. 303]. 

Consequently, the Court explained that Brazil could not deny its international obligations by claiming that at the time of the disputed developments, there was no domestic law requiring them to comply with a peremptory and non-voidable international obligation.

Finally, the Court concluded that Brazil had failed to guarantee an effective judicial remedy to investigate, prosecute and punish those responsible for the detention, torture and death of Vladimir Herzog, which in turn violated the rights to judicial guarantees and judicial protection established in Articles 8(1) and 25(1) of the American Convention, in relation to Articles 1(1) and 2 of this instrument, and in relation to Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, of Mr. Herzog’s family members. Likewise, the Court concluded “that Brazil has failed to comply with its obligation to adapt its domestic laws to the Convention, as established in Article 2 thereof, in relation to Articles 8(1), 25 and 1(1) of this treaty and Articles 1, 6 and 8 of the ICPPT due to the application of Amnesty Law No. 6683/79 and other methods of excluding responsibility prohibited by international law in cases of crimes against humanity, pursuant to paragraphs 208 to 310 of this judgment” [para. 312]. 

Additionally, the Court declared that Brazil violated the right of Mr. Herzog’s family members to know the truth, as it failed to establish criminal responsibilities of the crime perpetrators, pursuant to Articles 8 and 25 of the American Convention, in relation to Article 1(1) of this instrument; as well as it violated the right to personal integrity recognized in Article 5(1) of the American Convention on Human Rights, in relation to Article 1(1) of this instrument due to the suffering that the lack of justice brought to Mr. Herzog’s family members. 

As a consequence of those violations the Court ordered Brazil to: i) re-open the investigation held to clarify Mr. Herzog’s death and torture, ii) establish appropriate measures and provisions to recognize the imprescriptibility of actions filed grounded on crimes against humanity and crimes under international law; iii) organize a public act to acknowledge international responsibility for the facts of this case, and iv) to publish the judgement. Additionally, the Court awarded the victims monetary compensations. 

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