Inter-American Court of Human Rights judgment of 15 March 2018 in the case of Herzog and Others v. Brazil (Series C, no. 353).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica). The complaint was then communicated to Brazil.
The case has successfully considered a complaint against the investigation and prosecution of torture and murder of a journalist in custody, crimes against humanity.
Investigation and prosecution of torture and murder of a journalist in custody, crimes against humanity.
THE CIRCUMSTANCES OF THE CASE
On October 25, 1975, journalist Vladimir Herzog volunteered at the headquarters of the security forces in São Paulo (known as DOI / CODI). Upon arrival, he was detained, interrogated and tortured. On the same day, he was killed by security forces. According to the official version of events presented by the Brazilian intelligence service, V. Herzog committed suicide, which was later confirmed as part of a military investigation. V. Herzog's family filed a civil suit in 1976. In 1978, the judge ruled that V. Herzog died an "unnatural death", confirming that the Brazilian authorities could not prove their version of suicide, and referred to the evidence of torture to which V. Herzog was subjected. This ruling came into force only in 1995, since the Brazilian authorities filed a number of appeals.
In 1992, a new investigation was initiated. However, the judicial authorities postponed its implementation in order to apply the 1979 Amnesty Law.
In 1995, a law was passed by which the Brazilian authorities acknowledged their responsibility, inter alia, for "killing political opponents" during the military dictatorship. In addition, a Special Commission on Political Deaths and Disappearances was established. In its final report, the Special Commission concluded that V. Herzog was tortured and killed during his arbitrary detention by DOI / CODI. On the basis of these findings, a request for an investigation was sent to the Federal Prosecutor's Office. In 2009, a federal judge postponed this investigation due to the existence of res judicata, the lack of criminal responsibility for crimes against humanity in Brazilian law at the time of the events, and due to the expiration of the statute of limitations for criminal prosecutions.
The essence of the complaint. Article 8, paragraph 1 (right to a fair trial), article 25, paragraph 1 (right to a remedy) in conjunction with article 1, paragraph 1 (obligation to respect and enforce rights without discrimination) and article 2 (legal consequences at the domestic level) of the American Convention on Human Rights (hereinafter - ACHR) and in conjunction with Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture to the Detriment of the Interests of V. Herzog's Relatives. Given that the Brazilian authorities admitted responsibility for the arbitrary detention, torture and murder of Vladimir Herzog, the dispute was limited to the possibility of prosecution of perpetrators and the applicability of the concepts of crime against humanity, as well as other concepts in relation to amnesty legislation, such as the statute of limitations and the principles of ne bis in idem and res judicata.
The Inter-American Court of Human Rights (hereinafter - the Inter-American Court) analyzed whether the actions committed against V. Herzog constituted a crime against humanity, as the applicants argued. To this end, the Inter-American Court of Justice turned to various sources of international and comparative law, which allowed it to establish that at the time of events significant for the present case (October 25, 1975), the prohibition of torture and crimes against humanity acquired the status of jus cogens. The Inter-American Court has also found that such crimes are not subject to the established customary rule. Both rules were binding on Brazil at the time the events in question took place, regardless of the structure of Brazilian legislation.
Then the Inter-American Court analyzed the actions of the Brazilian security forces during the military dictatorship and the specific actions against V. Herzog. In this regard, the Inter-American Court concluded that there was no doubt that the detention, torture and murder of V. Herzog were committed by representatives of the state, who were members of the army, as part of a systematic and large-scale attack on the civilian population, which was considered the “enemy” of the dictatorship (that there are journalists and alleged members of the Brazilian Communist Party). The torture and death of V. Herzog was not an accident, but a consequence of a highly organized repressive mechanism created in order to act in a similar way and to physically eliminate any democratic or partisan opposition to the dictatorial regime using documented methods and techniques approved and comprehensively controlled by the Chief the command of the army and the executive branch. Brazil's National Truth Commission confirmed the previous conclusion in 2014.
Thus, the Inter-American Court has established that the acts committed against V. Herzog should be considered a crime against humanity, as defined by international law since at least 1945. The fact that the prohibition of crimes under international law and crimes against humanity had acquired the status of a peremptory norm of international law (jus cogens) imposed an obligation on the Brazilian authorities to investigate, prosecute and punish those responsible for such acts, given that they pose a threat to the peace and security of the international community.
Due to the limitation of the jurisdiction of the Inter-American Court in time (Brazil accepted the jurisdiction of the Inter-American Court only in 1998), the conclusions reached were important in determining the scope of the obligations of the Brazilian authorities, which existed as of December 10, 1998. Following its case-law, the Inter-American Court confirmed that the obligation investigation and, if applicable, criminal prosecution, as well as punishment of those responsible, has become particularly important given the gravity of the crimes committed and the nature of the rights violated. In this regard, the Inter-American Court has concluded that a State cannot invoke statutes of limitations, the ne bis in idem principle, amnesty legislation or similar exclusionary clauses to relieve itself of the obligation to investigate and punish those responsible. In addition, as part of its obligation to prevent and punish crimes under international law, the Inter-American Court of Justice held that States should apply the principle of universal jurisdiction over such crimes, as they pose a threat to the peace and security of the international community.
The Inter-American Court found that the Brazilian authorities violated the rights to judicial guarantees and judicial protection due to the lack of investigation, as well as to prosecute and punish those responsible for the torture and murder of V. Herzog as part of a systematic and more general attack on the civilian population. In addition, the Inter-American Court found that the Brazilian authorities had failed to comply with their obligation to bring their legislation in line with the ACHR due to the application of the Amnesty Act and other exemptions from liability prohibited by international law in cases of crimes against humanity.
There was a violation of the ACHR requirements in relation to V. Herzog (adopted unanimously).
Compensation. The Inter-American Court held that this Order constituted a form of compensation in itself and ordered the State: (i) to institute or reopen with due diligence and within a reasonable time an investigation and criminal proceedings in relation to the events of 25 October 1975, to establish, prosecute and, if necessary, punish those responsible, given that such acts constitute crimes against humanity; (ii) take all necessary measures to recognize that the statute of limitations does not apply to crimes against humanity; (iii) perform a public act of acknowledgment of responsibility; (iv) publish this regulation; (v) pay compensation for non-pecuniary damage, as well as compensation for costs and expenses.