Global Freedom of Expression

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Gomes Lund v. Brazil

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    November 24, 2010
  • Outcome
    Remanded for Decision in Accordance with Ruling, Access to Information Granted, Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    C No. 219
  • Region & Country
    Brazil, Latin-America and Caribbean
  • Judicial Body
    Inter-American Court of Human Rights (IACtHR)
  • Type of Law
    Civil Law, International/Regional Human Rights Law
  • Themes
    Access to Public Information
  • Tags
    Right to Truth

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There is a Spanish language version of this case available.    View Spanish version

Case Analysis

Case Summary and Outcome

IACtHR held that Brazil violated ACHR Article 13 (right to information) when it failed to disclose information about disappeared member of the Araguaia Guerrilla movement to their relatives. The Court stressed that the right to information is stronger when it concerns victims of human rights violations, including the disappearances of individuals. Thus, the Court held that Brazil had a duty to provide the surviving next of kin information regarding their relative’s burial sites. It also granted non-pecuniary reparations of $45,000 for every direct relative and $15,000 for every indirect relative of a disappeared member of the Araguaia Guerrilla movement.


Facts

During the Brazilian military dictatorship (1964-1985), the military captured, tortured, and murdered oppositionists. During this time, the Araguaia Guerrilla movement, a group of nearly 70 students, members of the communists party, and community members from Araguaia region became vocal about bringing an end to the dictatorship. In 1972-1975, the military violently persecuted the group. The army was given orders to identify oppositionists, bury them, take photos and mark the location of burial sites. The military’s actions resulted in the disappearance of 62 of the members in the Araguaia Guerrilla movement.

Beginning in the 1980s, the families of the victims began a campaign to receive information about the circumstances of the disappearances, the location of the burial sites and remains of the victims. The families sued the state of Brazil to receive access to the information. After a retrial and multiple attempts from the government to appeal, the Supreme Court found in favor of the families in 2007. Despite this the Brazilian government shared documents that did not contain the information the families needed. The Brazilian government hid behind national amnesty laws that prevented any criminal investigations into the actions of military dictatorship and allowed the executive to permanently classify any documents as a threat to national security preventing disclosure. A majority of the dictatorship archives were kept classified.

In 1995, during the national court process in an attempt to receive the information, the families filed a request with the IACmHR. The IACmHR also found in the families’ favor in 2008. After an inadequate response from Brazil, the case was brought in front IACtHR in 2010.


Decision Overview

The Court explained that freedom of expression is not limited to the freedom to express one’s opinion open but includes the freedom and right to access information. The State has a positive obligation to disclose as much information as possible in the interest of public debate. This right is elevated when the information concerns victims of human rights violations, including the disappearances of individuals. Finally, the Court has established that in cases of human rights violations, the State cannot withhold information claiming confidentiality for national security or public interest when access to information is granted by the legal system or required in a judicial proceeding.

The Court held that Brazil had a duty to provide the surviving next of kin information regarding their relative’s burial sites. The Court ordered the State of Brazil to codify forced disappearances as a crime. With regards to the freedom of expression, the Court ordered Brazil do everything in its power to determine the location of the disappeared persons and publication of the judgment in a nationally circulated Brazilian newspaper. The Court found that Brazil had adequate channels for the victims to receive pecuniary reparations, but expanded reparations to include medical and psychological care, and granted non-pecuniary reparations of $45,000 for every direct relative and $15,000 for every indirect relative.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

IACtHR expands the freedom of information by declaring Brazil 1979 amnesty law is incompatible with the Convention. Furthermore, the Court explains that the burden to prevent the public from accessing documents falls on the State and they can only do so in cases that comply with Article 13.2. Thus, the Court narrowed circumstances in which the State can block public access and still comply with the terms of the Convention.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • IACtHR, Herrera-Ulloa v. Costa Rica, Ser. C No. 107, (July 2, 2004)
  • IACtHR, Ricardo Canese v. Paraguay, ser. C No. 111 (2004)
  • IACtHR, Palamara Iribarne v. Chile, ser. C No. 135 (2005)
  • IACtHR, Valle Jaramillo v. Colombia, ser. C No. 192 (2008)
  • IACtHR, Genie Lacayo v. Nicaragua, ser. C No. 30 (1997)
  • IACtHR, Bulacio v. Argentina, ser. C No. 100 (2003)
  • ACHR, art. 13

National standards, law or jurisprudence

General Law Notes

At the time of the IACtHR decision, Brazil had drafted a law that would comply with the freedom of expression standards set forth in the Convention (Draft Bill No. 5.228/09).

The Court overturned Brazil’s 1979 Amnesty Law.

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

This case created a binding precedent in the State of Brazil, the Court’s decision forces the State to act in regards to both the amnesty law and updating the civil code to reflect Article 13 of the Convention.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

The case expands public access to information regarding human rights violations and increases the burden on the State to prevent access. Furthermore, the case will affect other cases concerning the forced disappearance of military dictatorship oppositionists throughout Latin America.

The decision was cited in:

Official Case Documents

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