1. On October 7
and 10, 1997, the Center for Justice and International Law (CEJIL) and
the Subcommittee on Blacks of the Human Rights Commission of the Ordem
dos Advogados do Brasil (OAB/SP) filed a petition against the
Federative Republic of Brazil (hereinafter “Brazil” or “the
State” or “the Brazilian State”) before the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the
IACHR”). The petition
alleged violations of Articles 1, 8, 24, and 25 of the American
Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”), and, in light of Article 29 of the Convention,
Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on the
Elimination of All Forms of Racial Discrimination (hereinafter “the
Convention on Racial Discrimination”), to the detriment of Mrs. Simone
2. The petitioners
allege that the State did not guarantee the full exercise of the right
to justice and due process of law, erred in respect of the domestic
remedies to investigate the racial discrimination suffered by Mrs.
Simone André Diniz, and accordingly breached the obligation to ensure
the exercise of the rights provided for in the American Convention.
3. The State
provided information alleging that the Judiciary had already handed down
a judgment on the matter that is the subject of the present complaint,
and that, according to the Government, the case submitted did not
involve any human rights violation.
4. After analyzing
the petition, and in keeping with Articles 46 and 47 of the American
Convention, the Commission decided to declare the admissibility of the
petition, with respect to possible violations of Articles 1, 8, 24, and
25 of the American Convention.
PROCESSING BEFORE THE COMMISSION
5. On October 7
and 10, 1997, the IACHR received a complaint against the Brazilian
State. On April 10, 1998, the IACHR notified the State and gave it 90
days to respond. On May 12, 1998, the State sent a note setting forth
considerations on the case, and committing itself to sending information
pertinent to the case in timely fashion.
On October 2, 1998, the petitioners sent a fax requesting that
the Instituto do Negro Padre Batista be included as a
co-petitioner in the complaint analyzed herein.
On November 3, 1998, the IACHR sent the Government a note in
which it reiterated the request for information made on April 10, 1998,
and gave the State 30 days to respond. On December 9, 1998, the
Brazilian Government presented its observations on the complaint.
THE PARTIES’ POSITIONS
Position of the petitioners
6. In their
complaint brief the petitioners alleged that the Brazilian State
violated the rights of Mrs. Simone André Diniz set forth at Articles
1(1), 8, 24, and 25 of the American Convention, and, in light of Article
29 of the Convention, Articles 1, 2(a), 5(a)(I), and 6 of the
International Convention on the Elimination of All Forms of Racial
Discrimination. Accordingly, the petitioners requested that Brazil be
found responsible for violating the above-noted rights, that a
recommendation be made to the State to proceed to investigate the facts,
to make compensation to the victim, and to give publicity to the
resolution in this case in order to prevent future incidents of
discrimination based on color or race.
7. According to
the petitioners, on March 2, 1997, Mrs. Aparecida Gisele Mota da Silva
took out a classified ad in A Folha de São Paulo, a
large-circulation newspaper in the state of São Paulo, in which she
communicated her interest in hiring a domestic employee in which noted,
among other things, her preference for a white person. Student
and domestic employee Simone André Diniz, upon seeing the ad, called
the phone number indicated, and introduced herself as a candidate for
the job. Received by Mrs.
Maria Tereza, the person entrusted by Dona Aparecida to receive the
candidates’ phone calls, she was asked about the color of her skin,
and she immediately answered that she is Black, and was then informed
that she didn’t meet the requirements for the job.
8. Mrs. Simone
Diniz immediately reported the racial discrimination she suffered and
the racist ad to the Ordem dos Advogados do Brasil, São Paulo
Section, in particular the Subcommittee on Blacks, and, accompanied by
an attorney, she lodged a criminal complaint with the then-Special
Division for Racial Crimes (Delegacia de Crimes Raciais).
On March 5, 1997, a police inquiry was opened, number
10,541/97-4, to investigate the violation of Article 20 of Law 7716/89,
which defines the practice of racial discrimination or prejudice as a
The police officer responsible for the inquiry took sworn
statements from all of the persons involved: the alleged perpetrator of
the violation and her husband, the alleged victim, and the woman who
received the phone call from Mrs. Simone Diniz.
9. According to
the petitioners, on March 19, 1997, the police officer prepared a report
on the criminal complaint and forwarded it to the judge. The Public
Ministry was informed of the inquiry–only the Public Ministry has
standing to initiate a public criminal action–it stated its position
on April 2, 1997, ordering that the proceeding be archived, arguing that
“... it was not found in the record that Aparecida Gisele had
committed any act that could constitute the crime of racism, provided
for in Law 7716/89...” and that the record reflected “... no basis
for filing charges.”
The petitioners reported that the judge rendered a judgment to
archive the case on April 7, based on the reasons set forth by the
member of the Public Ministry.
The petitioners alleged that the police inquiry had sufficient
and adequate indicia of evidence for the criminal complaint based on the
violation of Article 20, caption, of Law 7716/89, i.e., the identity of
the perpetrators and materiality of the criminal offense was proven.
In addition, they reported that the mere publication of the
discriminatory classified ad had itself constituted the punishable
crime, under paragraph 2 of Article 20 of the same law; these facts
suffice for the Public Ministry to have filed criminal charges.
Moreover, according to petitioners, the Public Ministry could not
have based its line of argument on the alleged and not proven fact that
Mrs. Aparecida had had a negative experience with a Black employee who
mistreated her children. Those facts, according to the petitioners, did
not authorize Mrs. Aparecida to discriminate against any other Black
domestic employee. In addition, the mere fact of being married to a
Black man does not release her from liability or make her less guilty of
Finally, they adduced that “even though the Public Ministry
issues its opinion in favor of archiving the police inquiry, the judge
was not under an obligation to accept it.
If he did so, it was because he was not diligent in looking into
The petitioners alleged that the Brazilian State undertook to
comply with the provisions of the Convention on Racial Discrimination,
and consequently to “condemn racial discrimination” and “to ensure
that all public authorities and public institutions, national and local,
shall act in conformity with this obligation.” Moreover, they reported that pursuant to the Convention on
Racial Discrimination, Brazil undertook to “guarantee the right of
everyone, without distinction as to race, color, ... ” ... “the
right to equal treatment before the tribunals and all other organs
In addition, they reported that Brazil undertook to ensure “to
everyone within their jurisdiction effective protection and remedies,
through the competent national tribunals and other State institutions,
against any acts of racial discrimination which violate his human rights
and fundamental freedoms contrary to this Convention, as well as the
right to seek from such tribunals just and adequate reparation or
satisfaction for any damage suffered as a result of such
The petitioners alleged that in Brazilian criminal procedure, no
appeal can be taken from a judgment to archive a police inquiry, unless
new facts arise that justify opening a new investigation. According to
the petitioners, that decision kept Mrs. Simone from proving, in a
criminal proceeding, that Mrs. Aparecida Gisele engaged in racial
discrimination; moreover, the possibility of a civil action for moral
damages, in the event that she had been held criminally liable, was also
precluded. These acts violated her right of access to justice. At the
same time, Mrs. Simone was denied the right to equal treatment by the
justice system, in relation to those victims whose complaints had been
investigated and reported by the Public Ministry so that liability could
The State’s position
The State, in a brief dated May 12, 1998, provided
clarifications, reserving the right to transmit pertinent information,
in due course, that it might receive on the case.
Nonetheless, it declared that “based on a reading of the
petition, it does not perforce lead to the perception that in their
communication to the Commission the petitioners have clearly laid the
foundation for the alleged violation of the American Convention on Human
Rights and of the Convention on the Elimination of All Forms of Racial
In effect, the Brazilian Government noted that “the
‘automatic’ processing of manifestly unfounded petitions could
generate unnecessary disquiet, in addition to diverting material and
human resources available in the Commission and the member states for
processing petitions that should be declared inadmissible ab initio.”
In addition, the State recalled that “Article 47(c) of the
American Convention on Human Rights, as well as Article 41(c) of the
Commission’s Rules of Procedure, determine that the Commission should
declare inadmissible any petition which, based on the presentation by
the petitioner or the State, is groundless or out-of-order. The so
called pro homine principle,
which governs international systems for the protection of human
rights–and according to which the states bear the burden of
proof–only makes sense in a context of likely and well-founded
allegations. Otherwise, one runs the risk of undermining the
transparency and juridical security of the system.”
The State insisted that the case in question did not entail a
violation of human rights. It said that “the police inquiry was
conducted in keeping with the rules of Brazilian legislation, and
archived by the competent judicial authority based on the opinion of the
Public Ministry, after hearing the sworn statements of the persons
IV. ANALYSIS OF ADMISSIBILITY
Competence of the Commission ratione
personae, ratione materiae, ratione temporis,
In keeping with Article 44 of the American Convention and Article
23 of the Rules of Procedure, the petitioners, as legally-recognized
non-governmental organizations, have standing to present petitions to
the Commission referring to alleged violations of the rights established
in the American Convention. As for the State, Brazil is a party to the
American Convention, and therefore answers internationally for
violations of that Convention. The
Commission observes that the facts with respect to which racial
discrimination is alleged are not attributed directly to the Brazilian
State, but to a private person. Nonetheless, violations of the
Convention are alleged in relation to the State’s response, through
its judicial organs, to the facts alleged, which are to be analyzed by
the Commission in the merits stage. The petitioners noted as the alleged victim Mrs. Simone André
Diniz, a national, with respect to whom the Brazilian State undertook to
respect and ensure the rights set forth in the Convention. Accordingly,
the Commission has competence ratione
personae to examine the complaint.
The Commission is competent ratione
materiae as violations have been alleged of human rights protected
by the American Convention at Articles 1, 8, 24, and 25. With respect to
the violation of rights protected by the International Convention on the
Elimination of All Forms of Racial Discrimination, it should be noted
that the Commission is not competent to examine violations of the rights
guaranteed by that Convention. Nonetheless, in light of Article 29 of
the American Convention, the Commission may use the Convention on Racial
Discrimination as guidance for interpreting the international
obligations freely assumed by the State.
The Commission is competent ratione
temporis insofar as the facts alleged occurred when the obligation
to respect and ensure the rights established by the Convention was
already in force for the State, as it ratified the American Convention
on September 25, 1992.
The Commission is competent ratione
loci because the facts alleged occurred in the territory of the
Federative Republic of Brazil, which has ratified the American
Exhaustion of domestic remedies
The petitioners lodged this petition with the IACHR in October
1997, arguing that the victim had exhausted domestic remedies for
investigating and punishing the offense of which Mrs. Aparecida is
accused. It reported that the incident occurred on March 2, 1997. The
police inquiry was opened on March 5, 1997. The pertinent report was
sent to the competent judge. On
April 2, 1997, the Public Ministry issued its opinion. On April 7, 1997,
the criminal judge rendered the judgment, ruling that the record be
The State did not controvert this fact; indeed, it ratified the
final nature of the decision of first instance, against which no appeal
Accordingly, the IACHR is of the view that domestic remedies were
exhausted and that the requirement at Article 46(1)(a) has been met.
Time period for submission
The present complaint was filed in timely fashion, under Article
46(1)(b), as it was formally lodged on October 7, 1997, prior to the
expiration of the six-month period provided for by the Convention, as
the judgment, which is non-appealable, was rendered on April 7, 1997;
this satisfies the requirement at Article 46(1)(b) of the American
Duplication of procedures and res
The Commission does not see any indication in the record that the
complaint brought before this Commission is pending before any other
international procedure, and it did not receive any information
indicating the existence of such a situation; likewise, there is no
indication that it reproduces any petition or communication previously
examined by the IACHR. Accordingly, the Commission understands that the
requirement of Articles 46(1)(c) and 47(d) have been met.
Characterization of the facts
The Commission considers that prima
facie the facts alleged by the petitioners state facts that tend to
establish a violation of the American Convention at Articles 1, 8, 24,
and 25, for possible violations of the obligation to respect the rights,
the right to a fair trial, the right to equality before the law, and the
right to judicial protection, in the person of Mrs. Simone André Diniz.
As for the statement made by the State regarding the
inadmissibility of the petition for being unfounded, the Commission is
of the view that establishing whether or not there has been a violation
of the American Convention is not for this stage of the proceeding. For
purposes of admissibility, the IACHR must decide whether facts have been
alleged that tend to establish a violation, as stipulated by Article
47(b) of the American Convention, and whether the petition is
“manifestly groundless,” or “obviously out of order,” as per
Article 47(c). The standard of appreciation of these rules is different from
that required to decide on the merits of a complaint. The IACHR must make a prima
facie evaluation to examine whether the complaint states facts
indicative of an apparent or potential violation of a right guaranteed
by the Convention, and not to establish the existence of a violation. This examination is a summary analysis that does not imply a
pre-judging or preliminary opinion on the merits. The Commission’s Rules of Procedure, on establishing two
clear stages for admissibility and merits, reflects the distinction
between the evaluation that the Commission must make for purposes of
declaring a petition admissible and that required to establish a
violation. From the
analysis of the petition now under consideration, the Commission
considers that the complaint does not fit under Article 47(b) or (c),
and therefore that it meets the requirements of the American Convention.
The Commission concludes that it is competent to take cognizance
of this petition and that it meets the admissibility requirements set
forth at Articles 46 and 47 of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare, without pre-judging on the
merits of this complaint, that the present petition is admissible in
relation to the facts alleged and with respect to Articles 8 (right to a
fair trial), 24 (equality before the law), and 25 (right to judicial
protection), all in relation to Article 1(1) (obligation to respect the
rights contained in the Convention).
2. To forward this report to the State and
3. To publish this decision and include it
in its Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., the 9th day of October 2002. (Signed): Juan Méndez; President, Marta Altolaguirre; First Vice-President, Robert K. Goldman, Julio Prado Vallejo, and Clare K. Roberts, Commission members.
The ad in question stated as follows: “domestic (female). Home.
Live-in. W/ exp. All routine, care for children, with documentation.
And ref.; Pref. White, without children, single, over 21.
Gisele” (“doméstica. Lar. P/ morar no empr. C/ exp. Toda
rotina, cuidar de crianças, c/docum. E ref.; Pref. Branca,
s/filhos, solteira, maior de 21a. Gisele”).
Law 7716/89 Art. 20 Practicing, inducing, or inciting racial
discrimination or prejudice.
Penalty: imprisonment for 1 to 3 years and fine....
Paragraph 2 If any of the crimes provided for in the caption
is committed through the communications media or a publication
whatever the type: Penalty: imprisonment for 2 to 5 years and fine.