Inter-American Court Issues Groundbreaking Ruling on Right to Truth and Information
This story originally appeared on the website for Open Society’s Justice Initiative
In a much anticipated ruling issued last December, the Inter-American Court of Human Rights invalidated Brazil’s longstanding amnesty for “political offenses” committed during its military dictatorship. In doing so, the court strengthened its jurisprudence on the right to the truth about past abuses and clarified its relationship to the fundamental right to government information. Relying in part on arguments contained in an amicus curiae brief filed by the Open Society Justice Initiative with the Delhi-based Commonwealth Human Rights Initiative, the Open Democracy Advice Centre of South Africa, and the South African History Archive, the court for the first time recognized that the right to information contained in Article 13 of the American Convention undergirds a legally enforceable right to the truth for both victims and society as a whole.
The Case: The case, Gomes Lund v. Brazil, relates to a small guerrilla movement of students and workers that emerged from the Araguaia River region of Brazil in 1972. Over the next two years, the Brazilian army brutally suppressed the movement, arresting and torturing members and local residents. More than 60 disappeared, their fate still unknown. With the restoration of democracy in 1982, legal proceedings were brought by the families of the disappeared, who sought the truth about what happened, information about where their relatives were buried, and official recognition of their deaths. Brazil’s 1979 amnesty laws prohibit any prosecutions for torture and killings committed during the military dictatorship. After 21 years of domestic litigation, the Araguaia relatives obtained in 2003 a court ruling directing the authorities to declassify and release information about the military operations against the guerrilla. The Brazilian federal government spent another six years appealing that ruling, which was ultimately confirmed by the national Supreme Court, and only began releasing certain Araguaia records in 2009.
In May 2010, a hearing on the Lund case brought the question of the legitimacy of the Brazilian amnesty before the Inter-American Court of Human Rights. In an amicus curiae brief, the Justice Initiative and the other amici argued that the right to the truth—for the victims or their family members as well as the general public—is now well established in international law and state practice. It is a broad right that guarantees the public’s right to know about the underlying conditions that led to past abuses, so that societies can prevent such problems from reoccurring in the future. In addition, the brief detailed a number of measures Brazil should undertake to shed light on the circumstances of the Araguaia operations and reform is secrecy laws.
The Judgment: Second Inter-American Ruling on Access to Government Information: In its November 24, 2010, ruling, the Inter-American Court held that Brazil’s amnesty law is “incompatible with the American Convention and void of any legal effects.” This made Brazil the third country in the region to have its dictatorship-era amnesty law invalidated by the court, following the precedents of Barrios Altos v. Peru (2001) and Almonacid-Arellano v. Chile (2006).
The court affirmed its earlier recognition of a right to the truth about gross human rights violations, which it derived from Articles 8 (duty to investigate grave violations) and 25 (judicial protection of rights) of the American Convention. It went further in this case, however, by recognizing for the first time that the right to the truth is also “connected to the right to seek and receive information enshrined in Article 13” of the convention (see § 201 of the Spanish version of the judgment). By denying and delaying access by the victims’ relatives to relevant army archives and other information, Brazil had violated their Article 13 right to information, read together with Articles 8 and 25 (§ 212).
The current ruling is an extension of the Inter-American Court’s landmark 2006 judgment in Claude Reyes v. Chile, which recognized for the first time in international law a fundamental right of access to information held by public authorities, under Article 13 of the convention. This makes the Araguaia case only the second instance, after Claude Reyes, in which the court has found a violation of the right of access to state-held information.
Duty to Disclose Information about Gross Human Rights Violations In reaching its finding that Brazil violated Article 13, the court noted that there is now a “regional consensus” in the Americas on the importance of both the right to information and the right to the truth about gross human rights violations (§ 198). Additionally, the court issued a number of important guidelines on the question of access to information about human rights violations: • When the authorities claim—as Brazil did in this case—that the requested records do not (or no longer) exist, they bear the burden of showing that diligent searches have been conducted and have produced no records falling within the remit of the request. That assessment must be made independently of the state agency whose members are suspected of rights abuses. Conversely, it is not for the information requester to prove that the records do in fact exist (§§ 202, 211). The Justice Initiative and its partners put forward similar arguments in their brief. • A state offer, made in the course of domestic proceedings, to disclose certain records only to judges and prosecutors, but not the victims’ relatives, was not acceptable as it did not guarantee the relatives’ right to the truth (§ 215). • The authorities must act in good faith in responding to right to information requests (§ 230). Brazil had failed to act in good faith by delaying for more than six years compliance with disclosure orders issued by its own courts. • The court reiterated and arguably expanded its jurisprudence that the authorities cannot invoke state secrets as a basis for denying access to information regarding serious human rights violations (§ 230). In doing so, the court appeared to go further than in earlier cases, which had established a state duty to grant judges and prosecutors unrestricted access to records relevant to criminal investigations. • Commenting on Brazil’s commitment to establish in the near future a truthcommission on the dictatorship abuses, the court noted that a properly constituted truth commission could help guarantee the right of the relatives and the general public to the truth. However, such a mechanism cannot be a substitute for the state’s duty to investigate and determine individual criminal liabilities (§ 297).
Implications of the Ruling: The court’s novel recognition of the Article 13 right to information as one of the foundations of the right to the truth has important implications for the development of both rights in international and comparative law. As the Justice Initiative argued in its brief, “grounding the right to the truth on Article 13 would grant both victims and the general public an unambiguous basis for claiming a judicially enforceable right of access to relevant information held by the state, including classified records.” While the rights of the victims and/or their relatives to the truth are more firmly established in regional jurisprudence, members of the general public, or groups not directly related to the victims, may be able to rely on the Araguaia ruling to independently pursue access to the truth about past violations. It is also significant that the primary purpose of the domestic proceedings brought by the Araguaia plaintiffs in this case was to obtain access to information about the fate of their relatives, rather than criminal prosecutions (which were barred by the amnesty law).
Furthermore, denials of access to information relevant to historical truth would now have to be justified by the state under the strict necessity test of Article 13.2. In this respect, the Court’s holding that state secret doctrines can in no case justify the cover up of gross human rights violations is of fundamental importance. As the Justice Initiative-led brief argued, there must be a very strong presumption of publicity for any information that sheds light on past abuses.
The Lund brief is available online in English, Portuguese, and Spanish. The court’s ruling is available in Spanish.
For a broader discussion of the right to truth and possible implications for information about counterterrorism and national security policies, see Justice Initiative Litigation Director Rupert Skilbeck’s piece in the Guardian, “The Truth Will Out—Except, Perhaps, in the U.S.”