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REPORT Nº 33/04[1] CASE 11.634 MERITS JAILTON NERI DA FONSECA BRAZIL March 11, 2004
I. SUMMARY
1. On December 7, 1995, during the visit of the Inter-American Commission on Human Rights (hereinafter “the Commission” or “IACHR”) to Brazil, it received a complaint from the D. Luciano Mendes Defense Center (Associação Beneficente São Martinho [St. Martin Charitable Association]), against the Federal Republic of Brazil (hereinafter “Brazil,” or “the State,” or “the State of Brazil), for the alleged extrajudicial execution of Jailton Neri da Fonseca, a child[2], by members of the military police of the State of Rio de Janeiro. The complaint in question reported the violation of Articles 4, 7, 8, 19, and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), all in relation to Article 1(1) of that legal instrument.
2. The petitioner alleged that the State should be made accountable for the murder of the child by the military police of Rio de Janeiro State on December 22, 1992. It argued that the State did not guarantee full exercise of the right to justice, to freedom, and to due legal process, that it failed to carry out the domestic remedies to substantiate the murder of the child, and consequently that it had failed to comply with its obligation to guarantee exercise of the rights established in the American Convention.
3. The State responded that it had no evidence either that the victim had been murdered by members of the military police, or that the judicial system had been ineffective in pronouncing judgment within the military proceedings.
4. The Commission concluded that the State of Brazil was responsible for violation of the rights to personal liberty, to humane treatment, to special measures of protection for children, to equal protection before the law, and to a fair trial, as set forth in Articles 7, 5, 4, 19, 25, and 8, respectively, of the American Convention. The Commission further determined that the State failed to comply with its duty to adopt domestic legal measures, pursuant to Article 2 of the Convention, and that it was also in violation of the obligation stipulated in Article 1(1) to respect and guarantee the rights recognized in the Convention. Finally, the IACHR made the pertinent recommendations to the State of Brazil.
II. PROCESSING BY THE COMMISSION AND FRIENDLY SETTLEMENT PROCEEDINGS
5. On June 14, 1996, the Commission decided to begin processing the petition and it opened Case No. 11,634. On that same date, the Commission requested information from the State, which in turn requested an extension of the deadline for response ice, on September 18, 1996 and on November 26, 1996. On November 27, 1996, the Center for Justice and International Law (CEJIL) joined the case as a co-petitioner. In view of the delay by the State in providing the information requested, the IACHR sent a notice to inform it of the application of the provisions of Article 42 of the former Rules of Procedure. The State sent information on August 17, 1998, a copy of which was forwarded to the petitioner for the customary observations.
6. In 2001, the Commission published Admissibility Report No. 35/01, in which it determined that it was competent to examine the merits of the case.[3] Following the publication of the aforementioned report, the Commission convened the parties to a hearing during its 114th Period of Sessions, to discuss the merits of the case. The State contested the alleged facts. On July 9, 2002, the petitioner provided additional information on the case, which was forwarded to the State for its observations. As of the date of this report, those observations have not been submitted. On January 23, 2003, the Commission placed itself at the disposal of both parties for the purposes of seeking a friendly settlement; on February 3, 2003, the petitioners declared that they did not consider it opportune to start a friendly settlement. The State did not respond in the deadline granted by the Commission.
III. POSITION OF THE PARTIES
A. Petitioners
7. The petitioners reported that on December 22, 1992, Jailton Neri da Fonseca, a child residing in the favela [shantytown or slum neighborhood] of Roquete Pinto, at Praia de Ramos [Ramos Beach], in the city of Rio de Janeiro, was summarily executed by members of the military police from the Ramos Community Police Station, a police unit located in that place.
8. The petitioners indicated that Jailton Neri da Fonseca was 14 years old when he was killed, and that he was the only surviving son of Mrs. Maria dos Santos Silva, a 40-year old widow who had a son, Marco Neri da Fonseca, 18 years old, who had been allegedly murdered by the military police, and another son, Alexandre, who died at 14 years of age of pulmonary edema.[4]
9. According to the petitioners, Jailton Neri da Fonseca was constantly being harassed by military police posted at the Ramos Community Police Station (PCC), who were responsible for policing the neighborhood in which he lived. They added that Jailton had been illegally detained three times by the police from that unit on previous occasions, without any crime being committed and without an arrest warrant issued by a competent judge.[5] They reported that one week before Jailton was murdered, he had been arrested by policemen from that military post and was not released until his father paid to Heliomar Coutinho Antunes, the military police commander of that PCC, the amount, at that time, of 1.5 million cruzeiros (one million, five hundred thousand cruzeiros). Moreover, according to the petitioners, the military police in that unit had been accused of extorting money from local drug trafficking in exchange for release of sales of narcotics.[6]
10. They contended that on the morning of December 22, 1992, when Jailton Neri da Fonseca was in the favela of Roquete Pinto, Praia de Ramos, he was illegally arrested by military policemen Eduardo Bezerra de Mattos, Nilton Oliveira do Nascimento, and Adilson Bruno de Andrade, and taken to the Community Police Station, on the false pretense of obtaining information on drug trafficking in the neighborhood from the child. They further reported that the child’s body was recovered from the sea by residents of the Ramos favela on that same day.[7]
11. According to the petitioners, the official report of the autopsy performed on the body of the child, attached to the court records, stated that Jailton Neri had been killed by five shots from a firearm-- two shots to his neck, one in the back, one in the back of his left arm, and one just below the right eye--all fired at short range. Later, the ballistics report concluded that the bullets withdrawn from the body of Jailton were expelled by a weapon examined by the experts, who reported that it belonged to the Ramos Military Police[8] and was carried by Military Police Soldier Eduardo Bezerra Matos.[9]
12. The petitioners reported that local residents had seen the police dragging the child through the streets of the favela to a place close to the beach, where they shot him five times and killed him.[10]
13. In fact, the petitioners named military police corporals Heliomar Coutinho Antunes, Eduardo Bezerra de Matos, and Nilton Oliveira do Nascimento, and Third Sergeant Adilson Bruno de Andrade, as the persons responsible for the illegal detention and MP Corporal Eduardo Bezerra de Matos, as the person who fired two of the shots that took the victim’s life. According to statements by the defendants in various documents from the proceedings included in the court records, they admitted to arresting the child and to detaining him at the Police Unit, but they denied the charges of extortion and murder.
14. The petitioners reported that an investigation into the crime perpetrated by the military police was not initiated until there had been repeated complaints from the mother of Jailton Neri da Fonseca, Mrs. Maria dos Santos Silva. The investigation was conducted by the military police itself, which had jurisdiction over investigation and judgment of crimes of intentional homicide committed by members of the military. They alleged that there were serious errors, irregularities, and unjustified delays in the course of the investigation, which resulted in the acquittal of the accused policemen.
15. They further alleged that a disciplinary administrative inquiry and a military police inquest (IPM) were initiated, both under the responsibility of the military, and that a civil inquest was begun as well. All of these proceedings were to investigate the irregular conduct of the accused military policemen. As a result of the investigations conducted in the course of the military police inquest referred to, criminal action was brought against the implicated persons.
16. As for the administrative inquiry, the petitioners contend that on December 22, 1992, after learning of the death of the child in the newspapers and on the basis of the accusations made in there, the Military Police Command of Rio de Janeiro State decided to initiate an inquiry proceeding.[11] During that proceeding, the above-mentioned policemen, who were alleged to have been involved in the death of the victim, testified. According to their statements, they admitted that they had detained the victim on the day of his death. They further stated that Jailton had been murdered by traffickers, who were trying to put the blame on the military police. The concluding report of that proceeding established that there was insufficient evidence to support the charges against the military police, on January 22, 1993.[12]
17. As regards the civilian police inquiry, the petitioners indicated that on December 22, 1992, the 22nd Civilian Police Station initiated an inquiry into the death of Jailton Neri.[13] During the 9 months of the investigation, only two of the military police involved in the crime gave statements, but no light was shed on the death of Jailton. In September 1993, by decision of the Public Prosecutor’s Office [Ministério Público], in view of the social repercussions and relevance of the incident, responsibility for the investigation was transferred to the Defense of Life Division. On September 27, 1997, the head of the Investigative Section who was in charge of substantiating the facts, among other things, concluded in his report that during the investigative proceedings initiated by the civilian police, not all the military police involved in the death of the child Jailton Neri had given statements, and that the firearms carried by the police who participated in the incident had not been seized. Moreover, pertinent pieces of evidence, such as the autopsy report, the report by the expert of the crime scene, etc., had not been included in the investigation.[14]
18. According to the petitioners, it was not until two years after the death of the victim, and repeated complaints lodged by the mother of Jailton Neri da Fonseca, that the military police made statements and their deposition was taken only two years and five months afterwards. Finally, the petitioners contended that the police investigation opened by the civilian police was never completed.
19. With regard to the military police inquest, the petitioners alleged that the military police never initiated an official inquest to investigate the death of the child at the alleged hands of its commanders. It was only after the order by the Public Prosecutor’s Office on August 6, 1993 that Military Police Commander Edmar Ferreira de Castro decided to initiate such proceedings, and this was on September 9, 1993.[15]
20. One month after beginning the inquest, the military police concluded their report stating that the policemen “remained with the child, Jailton Neri da Fonseca, for a certain number of hours, walking with him through the favela …”. Finally, they concluded that the policemen committed a disciplinary violation for failing to hand over the child to the appropriate and responsible party.[16]
21. Later, on October 28, 1993, the Military Police Command decided to detain Corporal Heliomar for ten days and soldier Eduardo Bezerra, for eight days, for having committed a serious disciplinary violation, by detaining the child Jailton “without having observed the police rules in force.”[17]
22. Subsequently, the victim’s mother reported the murder of her son to the local authorities, the press, and organizations, and this impelled the Public Prosecutor’s Office, on June 1, 1994, to request the Military Police Commander to conduct an effective investigation into the reported events, since the Public Prosecutor’s Office was not satisfied with the investigations appearing in the records of the inquest.[18] Consequently, the military police took the deposition of the victim’s father, and of the police that were implicated in the case.
23. The petitioners alleged that it was not until September 1, 1994, nearly two years after the crime, that a ballistics test was performed to compare the weapons of the military police with the two bullets taken from the body of the child, Jailton Neri. The results of the technical test confirmed that the bullets that hit the child were fired from a revolver carried by the military police. In fact, the experts concluded that “… the bullets (taken from the body of Jailton Neri da Fonseca) were expelled from the second weapon examined (Taurus revolver, 1634590)…”. According to the petitioners, that weapon belonged to the Ramos Military Police and was carried by the military police soldier Eduardo Bezerra Matos, one of the policemen who had detained Jailton on the day of the crime.[19] The petitioners contended:
On 11/10/94, the military police published a supplementary report, charging MP soldier Eduardo Bezerra Matos with the death of Jailton Neri da Fonseca, and concluding that he killed the child by using a 38 caliber revolver, serial number 1634590 (as demonstrated by the expert), further charging MP soldiers Adilson Bruno de Andrade and Nilton Oliveira do Nascimento of being accomplices or accessories in the death of Jailton Neri; the report inexplicably failed to charge MP Corporal Heliomar of being an accomplice in the crime, since there was insufficient evidence of his participation in it (…).[20]
24. Based on the IPM report, the petitioners alleged that on December 26, 1994, the Public Prosecutor’s Office filed formal charges with the Court of Military Justice against the following military policemen: Corporal Heliomar Coutinho Antunes, Corporal Eduardo Bezerra de Matos, Soldier Nilton Oliveira do Nascimento, and 3rd Sergeant Adilson Bruno de Andrade, who were jointly accused of the crimes of homicide and extortion.[21] Criminal proceedings were initiated, the parties and witnesses testified, and the existing evidence of expert witnesses was gathered. Once the discovery period of the trial was over, the representative of the Public Prosecutor’s Office himself contended that the evidence produced in the proceedings was very weak to produce a conviction of the defendants: “… the evidence is relatively precarious to charge the defendants with the crimes set forth in the indictment; as a result, their acquittal is requested.”[22]
25. On March 12, 1996, three years and three months after the murder of the child Jailton Neri da Fonseca, following the opinion of the Public Prosecutor’s Office, the Permanent Justice Council of the Court of Military Justice unanimously decided to declare the terms of the indictment unfounded and absolve the defendants.[23]
26. The petitioners reported that at the time of the trial of the military policemen, the military courts still had jurisdiction to prosecute crimes of intentional homicide perpetrated by military agents.
27. Finally, the petitioners alleged that they had exhausted domestic remedies, since the judgment was handed down by the Permanent Council of the Military Court on March 12, 1996 sitting in judgment and that in accordance with Brazilian law, that decision could not be appealed.
B. The State
28. The State of Brazil responded on August 17, 1998, and alleged that:
according to information from the Office of the Rio de Janeiro State Public Prosecutor, the child Jailton Neri da Fonseca was murdered on the occasion of an operation carried out by the military police of that State to curb illegal trafficking in narcotics and to apprehend traffickers who were taking refuge in the favela of Ramos.
29. Subsequently, the State contended that the murder of the child Jailton Neri da Fonseca had been investigated and resulted in criminal proceeding No. 9630/95, whereby criminal action was brought pursuant to law in the military courts, where the preliminary criminal proceedings allowed for ample examination and cross-examination. For information purposes, the State explained that “… the jurisdiction of the military courts was determined by constitutional and legal provisions in effect at the time, since the homicide resulted from the action of members of the military police.”
30. Brazil further alleged that the criminal proceeding initiated to determine the perpetrators of the murder of the child and the extortion of his mother resulted in an acquittal, according to which the military police defendants were absolved of the crimes of homicide and extortion.
31. The State reported that it had made efforts to punish the perpetrators of human rights violations against the Brazilian people, but that these efforts were hampered by the complex Brazilian legal system and by the structure of the judiciary system, including the slow pace of court proceedings and excessive defense appeals, which delayed the administration of justice.
32. As regards civil reparations, the State alleged that the Brazilian legal system only authorized payment of civil indemnities for illicit acts perpetrated by government agents, whether under the authority of the judicial or the legislative branch, and must be specifically at the behest of victims or their next of kin.
IV. ANALYSIS OF THE MERITS
33. The reason for the present petition is the murder of the child, Jailton Neri da Fonseca, which occurred in the form of a summary execution attributed to the military police of Rio de Janeiro State, Brazil.
34. The State does not deny the crime, nor does it deny the authors of the crime. However, it contends that during the military criminal proceedings against the military police, their guilt was not proven, and as a result they were acquitted.
35. Before its merits analysis the Commission considers it important to highlight the context in which the facts occurred. The victim, the child Jailton Neri da Fonseca, was an Afro-Brazilian[24], poor and lived in a poor neighborhood (favela) in Rio de Janeiro who was murdered by military police officers. In this respect, the Commission stated its concern over police violence and the racial profiling used by military agents in Brazil in its report on the human rights situation in Brazil. In that report, the Commission pointed out that social indicators revealed that the Afro-Brazilian population was more likely to be suspected, harassed, prosecuted, and convicted than others.[25] On the basis of these reports, the IACHR recommended to the State that “it take steps to educate judicial and police officers to prevent behavior involving bias and racial discrimination in criminal investigations, trials, and sentencing.”
36. Similarly, based on a report on the human rights situation of Afro-Brazilians submitted at the 114th session of the Commission by attorneys from Brazilian organizations,[26] the IACHR learned that in Brazil, racial profiling was evident in the high number of illegal arrests, as the black population was under the closest surveillance and was the most likely to be targeted by the police system.
37. The report further stated that a survey conducted by IBASE (Brazilian Institute of Social and Economic Analysis) showed that “in Rio de Janeiro, based on 265 investigations, the profile of most children murdered showed that they were poor, male, and black or of mixed race.”
38. In another survey conducted by ISER, it found that: “the role of race in the use of lethal force by the police is perhaps the source of the most serious violations of human rights in Brazil. After studying over 1,000 homicides committed by the Rio de Janeiro police between 1993 and 1996, the report concluded that race was a factor that influenced the police, either consciously or not, when they shot to kill. The darker the skin of the person, the more likely he was to become a victim of a fatal act of violence on the part of the police.” Furthermore, the report concluded that police violence is discriminatory, as it affects blacks in greater numbers and with a greater degree of violence. Another determining factor in the analysis of police violence in Brazil was social and economic factors, since in the large majority of cases, the victims were poor and/or lived in or around favelas or slums.
39. Although in the specific case in point, the Commission does not have compelling evidence that the reason for the murder of Jailton Neri da Fonseca was his race, it does have sufficient indications not to rule out the fact that such circumstance was a significant factor in his murder. Accordingly, the Commission expresses its concern over the serious relationship in Brazil, and especially in Rio de Janeiro, between police violence and the race of the persons affected by that violence.
A. Proven Facts
40. In examining the statements by the parties and the documents submitted, the Commission considers that the following facts have been proven:
41. Jailton Neri da Fonseca was a black, 14 year-old child, the only surviving son of a family with three sons, of Mrs. Maria de Jesus da Silva.[27]
42. The victim was illegally detained by members of the military police at around 10:00 in the morning on December 22, 1992, without a court order, without being caught in the process of committing a crime, and in violation of the provisions of criminal legislation and of the Statute of Children and Adolescents, on the contradictory pretext of obtaining information on drug trafficking in the favela. Administrative military sanctions were imposed on two members of the military police as a result of this act.[28]
43. The military policemen implicated in the case confirmed in their statements at the Military Police Inquest and in military court that they had detained the child prior to his death and that they had walked around the favela with him for several minutes.[29]
44. According to the deposition by the child’s mother, various residents of the favela, who did not want to be identified for fear of reprisals, saw the police dragging the body of the child to Ramos beach. The statement by the policemen is contradictory, with regard to the information as to the time and the place of the release of the child, and as to who released him.[30]
45. The ballistic report proved that the bullets that took the life of the child came from the weapon of one of the military policemen of the Ramos Community Police Station.[31]
46. From the location and distance of the shots that took the life of the child, it was determined that he was shot in the back.[32]
47. Three inquiries were initiated to substantiate the crime reported: one civilian investigation, one military administrative investigation, and one military police investigation. Of these three, only the military police investigation was eventually completed.
48. The military police did not ex officio begin any official inquest to investigate the death of the child attributed to its agents. It was not until eight months after the event occurred, at the request of the Public Prosecutor’s Office, that the Military Command initiated the relevant investigation.[33] Because of this, various pieces of evidence essential to determine the truth of the alleged facts were lost. There was no expert crime scene investigation, ballistic tests were not performed, and the testimony of witnesses was not taken. As a result, the results of this inquest were inconclusive.[34] The murder of the child was not investigated, nor was the reported extortion. The only conclusion was that the child remained in police custody for a number of hours on the day of the incident.
49. Eighteen months after the murder of Jailton Neri, the Public Prosecutor’s Office ordered the Military Command to reopen the investigation.[35] It was only at that inquest that the mother of the child gave a statement, as did the police involved in the murder. At that inquest, twenty-one months after the crime, a ballistics test was performed to compare the bullets withdrawn from the body of the child with the revolvers of the implicated police. That examination concluded that the bullets that took the life of the child were fired from the weapon of military police agent Eduardo Bezerra Matos.
50. With regard to the criminal proceedings, despite the irregularities that had occurred throughout the investigative process, the military criminal court had evidence that the child, Jailton Neri da Fonseca, had been murdered by military police.[36] Nonetheless, the Public Prosecutor’s Office, in final arguments, asked for the acquittal of the defendants, on the grounds of insufficient evidence in the court file. The Military Council, for its part, unanimously decided to absolve the defendants, by applying the principle of in dubio pro reo.[37]
51. For these reasons, the Commission is of the opinion that the investigation conducted both by the military police and by the civilian police was defective. Both investigations were fraught with delays, irregularities, negligence, and collusion, and led to the acquittal of the accused by the military criminal court.
B. Right to Liberty
52. The American Convention states in its Article 7 that:
Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
53. An arrest is arbitrary and illegal when it does not occur in accordance with the causes and procedures established by law, when it is effected without observing the practices stipulated by law, and when it has been effected as a distortion of the authority to arrest, or in other words, when it is effected for purposes other than those stipulated and required by law. The Commission has also maintained that arrest for inappropriate purposes is, in and of itself, a punishment that constitutes a type of punishment without due process, or an extralegal punishment that violates the guarantee of a prior trial.[38]
54. The Commission has followed the practice of examining the compatibility of deprivation of freedom with the provisions of paragraphs 2 and 3 of Article 7 of the American Convention, by pursuing three steps. The first consists in determining the legality of the arrest in a material and official sense, which involves determining the compatibility of the arrest with the domestic legislation of the State in question. The second step consists in analyzing the domestic law in the light of the guarantees established in the American Convention, to determine whether or not it is arbitrary. Finally, if the arrest meets the requirements of a rule of domestic law compatible with the American Convention, it must be determined whether the law was applied to the case in question in an arbitrary manner.[39]
55. On this point, the Commission notes that the Brazilian legal system is built on the fundamental principle of presumption of innocence, which requires the State to restrict liberty on the assumption of being caught in a criminal act or by court order. Chapter I, on Individual and Collective Rights and Duties, of the Federal Brazilian Constitution, establishes the following:
Art. 5 All persons are equal before the law, without distinction of any kind, and Brazilians and foreigners residing in the country are guaranteed the inviolability of the right to life, to liberty, to equality, to safety, and to property, in the following terms: LIV-Nobody shall be deprived of liberty or of his assets, without due legal process; LXI-Nobody shall be detained unless in the act of committing a crime or by written or well-founded order by a competent judicial authority, except in cases of a military violation or specifically military crimes, as defined by law; LXII-The detention of any persons and the place where they are detained shall be immediately reported to the competent judge and to the family of the detainee or the person indicated by them; LXII-The detainee shall be informed of his rights, including the right to remain silent, and shall be assured of the assistance of family or legal counsel.
56. The court documents indicated that the child, Jailton Neri da Fonseca, had been illegally detained on other occasions prior to his death by the same policemen that were implicated in and accused of his murder, according to his mother’s statement. On the day of his murder, Jailton was violently coerced by the military police to assist them in a “false and illegal” operation.
57. As the police responsible for his illegal arrest themselves admitted in their testimony, they had arrested the child even though he had not committed any offense that would warrant detention. They remained with him for several hours, in defiance and violation of constitutional authority. Moreover, they did not report this fact to the competent judicial authority, in this case, the judge for children and child, nor did they take him to the judicial institution stipulated by law. Furthermore, they interrogated him in the absence of family members, an attorney, or any person who could serve as his protector or guardian.
58. In the case in point, the State of Brazil, through its military agents, denied the child the peaceful exercise of his liberty and the rights ensuing from that. In addition, the State failed to guarantee him freedom against illegal arrest, which he suffered at the hands of the persons who had the legal duty to protect him.
59. The Commission concluded that Jailton Neri da Fonseca was deprived of his freedom in an illegal manner, without having given cause for any arrest warrant or without any situation of flagrante delicto. When he was detained, he was neither informed of the reasons for his arrest, nor of the crime or crimes with which he was being charged. Nor was he promptly taken before a judge. He did not have the right to recourse to a competent court, so that it could issue a prompt decision as to the legality of his detention and order his release, since he was murdered immediately after he was arrested. The purpose of Jailton’s arrest was his murder, which in and of itself makes it arbitrary and illegal.
60. Based on this line of reasoning, the Commission concludes that since this case does not meet the first of the three steps of the aforesaid analysis, the State of Brazil is liable for violation of the right to liberty protected by the American Convention, to the detriment of Jailton Neri da Fonseca. The Commission concludes that the State of Brazil failed to guarantee the child, Jailton Neri da Fonseca, his right to liberty and personal safety, thereby violating Article 7 of the American Convention.
C. Right to Humane Treatment
61. The American Convention establishes as follows:
Article 5. Right to humane treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social adaptation of the prisoners.
62. In a case in which several children were detained for several hours by police agents before executing them, the Inter-American Court of Human Rights determined as follows:
It should be remembered that the youths were retained clandestinely by their captors for between 10 and 21 hours. This lapse of time occurred between two extremely violent circumstances: forced seizure and death due to the impacts of a firearm while defenseless, which the Court has already declared proved (supra, para. 82). It is reasonable to conclude that the treatment they received during those hours was extremely aggressive, even if there was no other evidence in this regard. While they were retained, the four youths were isolated from the external world and certainly aware that their lives were in danger. It is reasonable to infer that, merely owing to this circumstance, they experienced extreme psychological and moral suffering during those hours. In this respect, it is relevant to recall that the Court has previously stated that the mere fact of being placed in the trunk of a car “constitutes an infringement of Article 5 of the Convention relating to humane treatment, inasmuch as, even if no other physical or ill treatment occurred, that action alone must clearly be considered to contravene the respect due to the inherent dignity of the human person.” (…) Similarly, the European Court has stated that the mere threat of a behavior that is prohibited by the provision of the European Convention (Article 3), which corresponds to Article 5 of the American Convention, when it is sufficiently real and imminent, may in itself be in conflict with the respective norm. In other words: creating a threatening situation or threatening an individual with torture may, at least in some circumstances, constitute inhuman treatment. Furthermore, it is worth recalling, as this Court has already stated, that a persons who is unlawfully detained (supra, para. 134) is in an exacerbated situation of vulnerability creating a real risk that his other rights, such as the right to humane treatment and to be treated with dignity, will be violated.[40]
63. From the established facts in the present case, it is evident that Jailton Neri da Fonseca was in the custody of the military police when he was forced to proceed through the Ramos favela. It is reasonable to infer that Jailton was perfectly aware that his life was in serious and imminent danger and that such circumstance caused extreme fear and psychological and moral suffering in him. The Commission considers that these acts constitute torture, defined in Article 2 of the Inter-American Convention to Prevent and Punish Torture, for the purposes of this Convention, as:
any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person, for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.[41]
64. On this point, although this article leaves some room for interpretation in defining whether a specific act constitutes torture, in the case of children the highest standard must be applied in determining the degree of suffering, taking into account factors such as age, sex, the effect of the tension and fear experienced, the status of the victim’s health, and his maturity, for instance.
65. The Commission is of the opinion that Jailton Neri da Fonseca must have experienced extreme fear and terror in finding himself in the hands of the military police, not knowing where they were taking him. The IACHR considers that such circumstance brought on Jailson Neri da Fonseca a situation of extreme psychological and moral suffering.
66. Based on the preceding considerations, the Commission concludes that the State of Brazil violated the right to humane treatment of Jailton Neri da Fonseca. Hence Brazil violated Article 5 of the American Convention.
D. Right to Life
67. Article 4 of the American Convention establishes the following:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
68. The human right to life is a fundamental human right, the basis for the exercise of the other human rights. The Inter-American Court has stated that enjoyment of the right to life
is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.[42]
69. The right to life entails, for States, the obligation to guarantee it. In accordance with Article 1(1) of the American Convention, this implies their obligation to prevent violations of that right, to investigate violations of the right to life, to punish the perpetrators, and to provide for reparations to the families of the victim, when the perpetrators were State agents.
70. In the case in point, the petitioners allege that the child, Jailton Neri da Fonseca, was summarily executed by members of the military police. They point out that “… Jailton was deprived of his life arbitrarily, when he was only 14 years old.” They further contend that “the violation of Jailton’s most precious possession was done with complete impunity.”
71. The Commission considers it an established fact that it was members of the military police who murdered Jailton Neri da Fonseca. In fact, in this case there is technical proof and various pieces of evidence that the victim, the child Jailton Neri da Fonseca, was de facto murdered by agents of the military police of Rio de Janeiro State.
72. The victim was illegally detained by military police at around 10:00 o’clock in the morning on December 22, 1992, without a court order, without flagrante delicto, and in violation of the provisions of both criminal legislation and the Statute of Children and Adolescents. For this act, administrative military sanctions were imposed on two members of the military police.
73. The military police involved in the case confirmed in their testimony at the military police inquest and in military court that they had detained the child prior to his death and that they had walked through the favela for several minutes with him.
74. The testimony of the police is contradictory, as to the times and the place of the release of the child, and as to who released him. For that reason, the assumption remains that they were actually with the child up to the time that they killed him.
75. The ballistics test verified that the bullets that took the life of the child were shot from a weapon belonging to one of the policemen from the Unit, more specifically from the 38-caliber revolver, series 1634590, carried by MP soldier Eduardo Bezerra Matos.
76. From the location and distance of the shots that took the child’s life, it was determined that he was shot in the back, as in a typical crime of summary execution.
77. The Commission feels compelled to highlight the particular gravity of this case, in that it involves the murder of a child. It would further point out that this case is not an isolated case, but that it reflects a pattern of acting outside the law followed by the military police of the State. For years the Commission has been receiving reports of escalating violence on the part of the State police. The military police in particular have been accused of acting with violence. In its general report on the situation of human rights in Brazil in 1997, the Commission indicated that: “…during the period running up to February 1996, average deaths per month at the hands of the military police went from 3.2 to 20.55 persons, or a total of 201 in 1996.”
78. In analyzing this case, the IACHR considered as key information the statements, testimony, and evidence from the police inquests. On the grounds of those statements, testimony, and pieces of evidence appearing in the court records, which have been discussed at length, the Commission is of the opinion that there is clear and compelling evidence that leads to full conviction that agents of the military police of Rio de Janeiro State violated the right to life of the child, Jailton Neri da Fonseca, which means violation by the State of Brazil of Article 4 of the American Convention.
E. Rights of the Child
79. Article 19 of the American Convention establishes the following:
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.
80. In accordance with that Article, states have a duty to observe a particularly high standard in all matters related to the guarantee and protection of the human rights of children.[43] The Inter-American Commission has said that:
Respect for the rights of the child is a fundamental value in a society that claims to practice social justice and observe human rights. This respect entails offering the child care and protection, basic parameters that guided in the past the theoretical and legal conception of what such rights should embody. It also means recognizing, respecting, and guaranteeing the individual personality of the child as a holder of rights and obligations.[44]
81. For its part, the Inter-American Court has determined that in interpreting Article 19 of the American Convention, the provisions of the Convention on the Rights of the Child could be taken into account. It stated that:
Both the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child that should help this Court establish the content and scope of the general provision established in Article 19 of the American Convention.[45]
82. The Commission, in its report on Brazil, singled out the standard for protection of children and adolescents set by the American Convention on Human Rights and by the Brazilian legal system, and stated as follows:
Brazilian children are legally protected both by domestic legislation and by international conventions to which Brazil is a party. In addition to the inherent rights proclaimed for all persons, the American Convention also provides for special protection, by recognizing that "every child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state (Article 19).[46]
83. The Brazilian Constitution establishes in its Article 227 that it is the duty of the family, society, and the State to give absolute priority to guaranteeing children and adolescents the right to life, … to dignity, … in addition to protecting them from all forms of … violence, cruelty, and oppression.”
84. The Statute of Children and Adolescents, an advanced Brazilian law on this subject, confirms and strengthens the constitutional guarantees of children and adolescents, and is established as an adequate legal system to protect their life and personal safety, in the light of the obligations arising from the American Convention. That law contains the following provisions:
Art. 3º- Children and adolescents shall enjoy all the fundamental rights inherent in human beings, notwithstanding the full protection provided for under this law; they shall be assured, by law or by another methods, of all opportunities and facilities required for their physical, mental, moral, spiritual, and social development, in conditions of freedom and dignity.
Art. 4º- It is the duty of the family, the community, society in general, and the government to guarantee, on a priority basis, the effective exercise of rights having to do with the life, health, sustenance, education, sports, recreation, professional training, culture, dignity, respect, liberty, and family and community life.
Art. 5º- No child or adolescent shall be the object of any type of negligence, discrimination, exploitation, violence, cruelty, or oppression; any violation of their fundamental rights, by act or omission, shall be punished pursuant to the law.
Art. 6º- In interpreting this law, consideration shall be given to the social purposes it is designed to fulfill, the requirements of the common good, individual and collective rights and duties, and the specific condition of the child or adolescent, as developing persons.
Art. 15 – Children and adolescents are entitled to liberty, to respect, and to dignity, as human beings in the process of development and as subjects of civil, human, and social rights guaranteed by the Constitution and the law.
Art. 18 – It is the duty of everyone to ensure the dignity of children and adolescents, and to protect them from any inhumane, violent, intimidating, abusive, or coercive treatment.
Art. 106 – No adolescent shall be deprived of his liberty unless caught in the act of committing an offense, or by written, justified order issued by the competent judicial authority.
Single paragraph – Adolescents are entitled to identification of the persons responsible for their arrest, and must be informed of their rights.
Art. 107 – The arrest of any adolescent and the place where he is picked up must be promptly reported to the competent judicial authority and to the family of the detainee or the person indicated by him. Single paragraph – The possibility of immediate release shall be examined right away, on penalty of legal obligation to compensate losses.
Art. 110 – No adolescent shall be deprived of his liberty without due legal process.
85. The Inter-American Commission has been repeatedly voicing its concern over the systematic violations of the human rights of children and adolescents in the hemisphere. As far as Brazil is concerned, at the time of the Commission’s on-site visit, it expressed its concern over the high rates of murder of child by the military police and over the ineffectiveness of the government authorities in punishing the guilty parties and in curbing the escalating violence:
Both the American Convention and the Federal Constitution of Brazil guarantee the life and physical, mental, and moral integrity of persons. Further, the Constitution establishes that one of the fundamental objectives of the Federal Republic of Brazil is to promote the well-being of all persons, without prejudice for reasons of origin, race, sex, color, age, or any other type of discrimination..
Article 227 of the Constitution states that “it is the duty of the family, society, and the state to guarantee to children and adolescents, as an absolute priority, the right to life ..., ...dignity, ..., and protection from all forms of violence, cruelty, and oppression….” The Statute of Children and Adolescents reiterates these guarantees. In other words, legislation on minors in Brazil has an adequate formal framework to protect the life and personal safety of children, in light of the obligations arising from the American Convention.
Reality, however, paints a different picture. In fact, despite these absolutely clear laws, in the outskirts of Brazilian cities are millions of children and adolescents who live in a situation of personal and social danger and who make the streets “their space to struggle for survival” or “their living space.” It is estimated that in the city of Rio de Janeiro, there are 30,000 children who frequent the streets on a daily basis and 1,000 who sleep in the streets. In São Paulo it is estimated that there are between 5,000 and 20,000 children who spend their days in the streets of greater São Paulo and who return to their homes at night.
These minors generally come from families who have migrated from impoverished rural areas to metropolitan centers, who subsist in outlying urban areas in conditions below minimum standards of well-being and dignity and who frequently need for their minor children to work to contribute to the family subsistence. Many of these children lead, or attempt to lead, a normal life and respect the law, but a large percentage of “street children” and “children in the streets” live a life of crime, with critical family situations, and subsist by minor theft or by rendering services, including drug trafficking. Their lives are usually short, since they frequently die through the action of murderous gangs or at the hands of the police, or as a result of the violence surrounding them.
Based on the statistics of Rio de Janeiro State, 424 minors under 18 years of age were victims of homicide in that State in 1992. In the first half of 1993, these victims numbered 229. Moreover, of the 562 homicides reported in Pernambuco State, located in northeastern Brazil, in the first eight months of 1995, 10% of the victims were less than 18 ears old.[47]
86. In this case, the State of Brazil, instead of providing special protection for the human rights of the 14-year old Jailton Neri da Fonseca, since his status as a child made him subject to special rights and guarantees, murdered him, through its State agents.
87. Moreover, under Article 19 of the Convention, the State had the duty to protect the child Jailton against abuse and mistreatment at the hands of its agents. In addition, Jailton was subject to the full protection of the aforesaid provisions, under which he was entitled to special treatment because of his status as a child. It is important to bear in mind that the child was arbitrarily detained and submitted to illegal interrogation, and forced to accompany the police around the favela on the pretext of giving information he did not have.
88. The PCC Commander stated in his testimony that he released Jailton Neri da Fonseca because they did not have anything against him. In other words, they illegally detained an innocent child. All of this was done outside the law, in complete violation of the special rules for protection of children, contrary to constitutional orders and in violation of the provisions of the convention, which guarantee children special treatment and judicial guarantees.
89. In addition, the Inter-American Court stated in Advisory Opinion OC-17:
The states party to the American Convention have the duty, pursuant to Articles 19 and 17, taken in relation to Article 1.1 of that instrument, to take positive steps to ensure protection of children against mistreatment, either in their relationship with government authorities or with other individuals or with nongovernmental entities.[48]
90. On these grounds, the Inter-American Commission concludes that the State of Brazil violated Article 19 of the American Convention by failing to adopt adequate preventive and protective measures for the benefit of the child, Jailton Neri da Fonseca.
F. Right to a Fair Trial and to Judicial Protection
91. Article 1.1 of the American Convention establishes that:
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
92. Article 8 of the Convention establishes that:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
93. Article 25 of the Convention establishes:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate fundamental rights recognized |
