...continuation (Chapter III)
D. Status of compliance with the recommendations of the IACHR
53. Complete compliance with the decisions of the Inter-American Commission is essential for ensuring that human rights have full force in the OAS member states, and for helping strengthen the Inter-American system for the protection of human rights. With that in mind, the IACHR, in this section, analyzes the status of compliance with the recommendations in the reports adopted by the Commission in the last three years.
54. In this regard, the OAS General Assembly, in its resolution AG/RES. 1917 (XXXIII-O/03), “Observations and Recommendations on the Annual Report of the Inter-American Commission on Human Rights,” urged the member states to follow up on the recommendations of the Inter-American Commission on Human Rights (operative paragraph 3.b) and to continue to take appropriate action in connection with the annual reports of the Commission, in the context of the Permanent Council and the General Assembly of the Organization (operative paragraph 3.c). Likewise, in its resolution AG/RES. 1925 (XXXIII-O/03), “Strengthening of Human Rights Systems pursuant to the Plan of Action of the Third Summit of the Americas,” it reaffirmed the intent of the OAS to continue taking concrete measures aimed at implementing the mandates of the Third Summit of the Americas, including follow-up of the recommendations of the Inter-American Commission on Human Rights (operative paragraph 2.b), and instructed the Permanent Council to hold a meeting of the Committee on Juridical and Political Affairs to consider means of promoting follow-up on the recommendations of the Commission by the Organization’s member states (operative paragraph 4.d).
55. Both the Convention (Article 41) and the Statute of the Commission (Article 18) explicitly grant the IACHR the authority to request information from the member states and to produce such reports and recommendations as it considers advisable. Specifically, Article 46 of the IACHR Rules of Procedure, which took effect on May 1, 2001, provides the following:
1. Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations.
2. The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.
56. Similarly, the General Assembly approved resolution AG/RES. 1894 (XXXII-O/02), Observations and Recommendations on the Annual Report of the Inter-American Commission on Human Rights, invited the IACHR to consider the possibility of continuing to include in its annual reports information on the follow-up of its recommendations by the states, and to review, with a view to their improvement, the criteria and indicators on that subject in the report for this year.
57. In compliance with its powers under the Convention and the Statute and with the above-cited resolutions, and pursuant to Article 46 of its Rules of Procedure, the IACHR requested information from the states on compliance with the recommendations made in the reports published on individual cases included in its annual reports for 2000 and 2001. The Commission also decided to include on its web page (www.cidh.org) a copy of the responses from the member states in cases where they expressly requested that this be done.
58. The table the Commission is presenting includes the status of compliance with the recommendations made by the IACHR in the cases that have been decided and published in the last three years. The IACHR notes that compliance with different recommendations is meant to be successive and not immediate and that some recommendations require a reasonable time to be fully implemented. The table, therefore, presents the current status of compliance, which the Commission acknowledges as being a dynamic process that may evolve continuously. From that perspective, the Commission evaluates whether or not compliance with its recommendations is complete and not whether it has been started. In this section, the IACHR has tried to assemble the comments made by the representatives of different member states upon presentation of the Annual Report for 2002.
59. The three categories included in the table are the following:
- total compliance (those cases in which the state has fully complied with all the recommendations made by the IACHR. Having regard to the principles of effectiveness and fully observed those recommendations where the state has begun and satisfactorily completed the procedures for compliance);
- partial compliance (those cases in which the state has partially observed the recommendations made by the IACHR either by having complied with only one or some of them or through incomplete compliance with all of them);
- compliance pending (those cases in which the IACHR considers that there has been no compliance with the recommendations because no steps have been taken in that direction; because the state has explicitly indicated that it will not comply with the recommendations made; or because the state has not reported to the IACHR and the Commission has no information from other sources that would suggest otherwise).
Case 11.307 – Report Nº 103/01, María Merciadri de Morini (Argentina)
60. Report Nº 103/01 was approved by the Commission on October 11, 2001 to report on the friendly settlement reached with respect to a petition challenging the application of Law 24.012 (the “Quota Act”) and its implementing decree, which concerned the placement of women candidates on the ballot. In its report, the Commission concluded that the information analyzed demonstrated that the matter had been settled in accordance with respect for the principles of the American Convention. That information included the text of Decree Nº 1246, issued to remedy the problem complained of and ensure the efficacy of Law 24.012, and the terms of the friendly settlement agreement signed by the parties in the presence of the Executive Secretary of the Commission, indicating that both parties considered the matter to have been fully resolved through the enactment of Decree Nº 1246. The Commission recognized the important efforts of both parties to work toward the free and full participation of women in public life, a priority for our hemisphere, and indicated its satisfaction with the settlement.
Case 11.804 - Report Nº 91/03 Juan Ángel Greco (Argentina)
61. On October 22, 2003, the Commission approved a friendly settlement agreement in the case of Juan Ángel Greco. Under this agreement the State agreed to:
[....]II. Non-monetary measures of reparation:
Within the framework of the republican division of powers, the Government of the Province of Chaco has requested that the Provincial Attorney General’s Office reexamine the criminal case titled: “COMISARIA PUERTO VILELAS S/ELEVA ACTUACIONES,” File Nº 1975/90, Year 1990, of the judicial case titled “BASTIANINI DE GRECO ZULMA S/SOLICITA INTERVENCION ALTO TRIBUNAL A EFECTOS ESCLARECER DENEGACION DE JUSTICIA EN CAUSA QUE FUERA VICTIMA SU HIJO.” File Nº 38.730, Folio 345, Year 1995, and according to the request submitted to the Judge for the matter, that Office has pronounced in terms favorable to its reopening. In this sense, the Government of the Province of Chaco undertakes to send, through the Office for Human Rights of the Foreign Ministry, a legalized and certified copy thereof to the petitioners and the Inter-American Commission on Human Rights. Within the framework of its competences, the Government of the Province of Chaco undertakes to encourage the reopening of the criminal case and the corresponding investigations.
In attention to the measures adopted by the Provincial Attorney General’s Office and the Admissibility Report Nº 72/01 adopted by the Inter-American Commission on Human Rights, the Government of Chaco commits itself -- once the criminal case has been reopened – to direct the reopening of the administrative case Nº 130/91-250690-1401.-
The Government of the Province of Chaco, in the framework of its competences, commits itself to ensuring that the family members have access to the judicial and administrative investigations.”
III. Economic reparation:
2. Indemnity: The Government of the Province of Chaco undertakes to provide economic reparation to the family members of Juan Ángel Greco in the sum of three hundred thousand pesos ($300,000) that shall be paid to Mrs. Zulma Bastianini de Greco in the amount of thirty thousand per month in the time period specified in point 3 of the present item, that amount comprising material damages, moral damages, lost wages, costs, fees and any other classification that would arise from the responsibility assumed by the Province of Chaco.
IV. Other reparation:
“The Government of the Province of Chaco commits itself to the publication of this agreement in the principle written press sources of the nation and the Province of Chaco.”
“The Government of the Province of Chaco commits itself to continue pursuing legislative and administrative measures for the improved protection of Human Rights. Specifically, it is placed on record that a draft law creating a Criminal Prosecutor’s Office for Human Rights has been developed and transmitted to the Provincial Chamber of Deputies for its study and approval. Further, the work of the Permanent Commission for Control of Detention Centers, created by Resolution No. 119, of February 24, 2003, of the Ministry of Government, Justice and Labor of the Province of Chaco, will be strengthened. In this same regard, further emphasis will be placed on the work of the Organ of Institutional Control (O.C.I) created by Article 35 of the Organic Police Law of the Province of Chaco Nº 4.987, directing it toward the more effective protection of human rights on the part of the Provincial Police. At the initiative of the Executive, the Provincial Counsel for Education and Promotion of Human Rights created by Law Nº 4.912 was constituted in the sphere of the Chamber of Deputies. The representatives of the distinct intervening organs and powers have already been designated and convoked. The duly certified and legalized records of these instruments are attached as Annexes I, II, III and IV. In relation to the measures set forth, some of which were adopted in the course of this friendly settlement procedure, the Government of the Province of Chaco undertakes to keep the petitioners and the Inter-American Commission on Human Rights informed as to the status of advances through the Office for Human Rights of the Foreign Ministry.”
62. The Commission received information from the parties regarding the steps taken in compliance with the points agreed on at a working meeting held on March 5, 2004. On November 8, 2004, the Commission asked the parties for up-to-date information on the state of compliance with the agreement. The petitioners submitted a brief communication addressing the issue on November 19, 2004.
63. Based on the information available to the Commission in the case at hand, it holds that the State has complied in full with the monetary compensation requirements. However, according to the information available, the points relating to the requirement of investigating and punishing the perpetrators of the human rights violations suffered by Juan Ángel Greco – in other words, the reopening of the criminal and administrative proceedings – are still pending. The final commitment was toward adopting legislative and administrative measures to extend protection of human rights. Whereas the government reported, during the drafting of the agreement, that one of its actions had been to draw up and refer to the Chamber of Deputies a legislative bill that would create a prosecutor’s office specifically for human rights and permanent oversight commission for the province’s detention centers, it has since submitted no further information regarding the implementation of that initiative. For that reason, the Commission believes that the State has partially complied with the points agreed upon and the recommendations issued.
Cases 12.067, 12.068 and 12.086 – Report Nº 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
64. In Report Nº 48/01 dated April 4, 2001, the Commission recommended that the State:
• Grant Messrs. Edwads, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
• Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.
• Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXIV of the American Declaration to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
• Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing under Article XXVI of the American Declaration and the right to judicial protection under Article XVIII of American Declaration are given effect in The Bahamas in relation to recourse to Constitutional Motions.
• Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.
• Adopt such legislative or other measures as may be necessary to ensure that the rights under Articles XXV and XXVI of the American Declaration to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
65. On November 8, 2002, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report Nº 48/01. The State has not informed the Commission as to its compliance with the Commission’s recommendations in Report Nº 48/01. On December 18, 2002, the Petitioners in Case 12.067, Michael Edwards, wrote to the Commission and informed it that they had written to the Attorney General of The Bahamas asking what steps the State would be taking in response to the Commission’s findings and recommendations. To date they are still awaiting a response from the Attorney General of The Bahamas concerning the same. On December 18, 2002, the Petitioner in Case 12.062, Omar Hall, wrote to the Commission and informed it that despite enquiries made to the Bahamian Government, she has not received any information concerning what steps the State has taken to commute Mr. Hall’s death sentence or otherwise put into effect the Commission’s recommendations made in Report Nº 48/01. With regard to Case 12.086, Brian Schroeter and Jeronimo Bowleg, the Petitioners wrote to the Commission and informed it that they were currently attempting to verify which, if any, of the recommendations contained in Report Nº 48/01, has been complied with by the State. Based on these considerations, the IACHR presumes that the Government of The Bahamas has not complied with the Commission's recommendations.
66. By communications of July 2, 2004 and November 9, 2004, the Commission requested information from the State about compliance with the recommendations set forth in Report Nº 48/01, pursuant to Article 46(1) of the Commission's Rules of Procedure. To date, the Commission has not received any responses from the State to these communications.
Case 12.051 - Report Nº 54/01, Maria da Penha Maia Fernandes (Brazil)
67. In Report Nº 54/01 of April 16, 2001, the IACHR made the following recommendations to the Brazilian State:
1. Complete, rapidly and effectively, criminal proceedings against the person responsible for the assault and attempted murder of Mrs. Maria da Penha Fernandes Maia.
2. In addition, conduct a serious, impartial, and exhaustive investigation to determine responsibility for the irregularities or unwarranted delays that prevented rapid and effective prosecution of the perpetrator, and implement the appropriate administrative, legislative, and judicial measures.
3. Adopt, without prejudice to possible civil proceedings against the perpetrator, the measures necessary for the State to grant the victim appropriate symbolic and actual compensation for the violence established herein, in particular for its failure to provide rapid and effective remedies, for the impunity that has surrounded the case for more than 15 years, and for making it impossible, as a result of that delay, to institute timely proceedings for redress and compensation in the civil sphere.
4. Continue and expand the reform process that will put an end to the condoning by the State of domestic violence against women in Brazil and discrimination in the handling thereof. In particular, the Commission recommends:
a. Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
b. The simplification of criminal judicial proceedings so that the time taken for proceedings can be reduced, without affecting the rights and guarantees related to due process.
c. The establishment of mechanisms that serve as alternatives to judicial mechanisms, which resolve domestic conflict in a prompt and effective manner and create awareness regarding its serious nature and associated criminal consequences.
d. An increase in the number of special police stations to address the rights of women and to provide them with the special resources needed for the effective processing and investigation of all complaints related to domestic violence, as well as resources and assistance from the Office of the Public Prosecutor in preparing their judicial reports.
e. The inclusion in teaching curriculums of units aimed at providing an understanding of the importance of respecting women and their rights recognized in the Convention of Belém do Pará, as well as the handling of domestic conflict.
f. The provision of information to the Inter-American Commission on Human Rights within sixty days of transmission of this report to the State, and of a report on steps taken to implement these recommendations, for the purposes set forth in Article 51(1) of the American Convention.
68. Initially, the petitioners said that in spite of having held several meetings with the State, the federal government had not sent them an official reply on the Proposed Agreement regarding compliance with the recommendations sent in October 2002.
69. With respect to recommendation No. 1 (supra), the petitioners added that Marco Antonio Heredia was serving his sentence under the open regime. In contrast, they stated that there had been no State initiative toward compliance with recommendations Nos. 2 and 3 (supra).
70. As regards recommendation No. 4 (supra), the petitioners noted that the State had made little progress with reforms to prevent state tolerance of domestic violence and the discrimination suffered by women in Brazil. In that context, they noted the passage of Law No. 10.886/04, which increased the punishments applicable for the crime of bodily harm in domestic violence cases, although the law supposedly ignores other forms of domestic violence that do not involve bodily injuries. They also said that Law No. 10.778/03 was only partially regulated by Decree No. 5.009, of June 3, 2004. With respect to pedagogical plans, the petitioners reported that the National Curriculum for Training Public Security Personnel only dealt superficially with the question of violence against women. Finally, the petitioners noted that a proposed bill on violence against women was submitted to the government by NGOs, but that it was fundamentally changed before being placed before Congress. Finally, the petitioners concluded that Brazil was still the only signatory of the Convention de Belém do Pará without specific legislation to implement the Convention’s terms.
71. The State, in turn, reported that it was negotiating, with the petitioners and the Ceará state government, the possibility of executing a compliance document regarding the above recommendations, but that there were problems caused by Brazil’s federal structure. It added, with reference to recommendation No. 1 (supra), that Marco Antonio Heredia Viveiros was arrested on October 31, 2002, and sentenced to a prison term of 8 years and 6 months for attempted homicide. He was later (March 5, 2004) granted the benefit of the semi-open regime and, subsequently (August 24, 2004), reassigned to the open regime, and is serving his sentence thereunder in Natal, Rio Grande do Norte state.
72. Regarding recommendation No. 2 (supra), the State reported that the corresponding administrative proceedings were referred to the Court of Justice of the State, which submitted a detailed report on the facts on June 23, 2004, covering investigation from its opening on May 30, 1983, to its shelving on November 11, 2002.
73. As regards recommendation No. 3 (supra), the State reported that the Secretariat of Special Policies for Women (SPM) selected Maria da Penha as a candidate for the 2005 commemorative prizes handed out by the federal Senate and Chamber of Deputies on International Women’s Day. As a form of symbolic reparations, the State added that reference was made to the case and to the IACHR’s Report in the preamble to the draft domestic violence law sent to Congress on November 25, 2004.
74. With regard to recommendation No. 4 (supra), the State noted that the federal government had taken a series of steps. As an example, it cited Law No. 10.745/03, which defined 2004 as the Year of Women, the First National Conference on Policies for Women, which produced the National Plan of Policies for Women, and the launch of the national campaign titled “Sua vida começa quando a violência termina” (“Your life begins when the violence ends”). The State also highlighted its training programs for police officers and public defense attorneys, the gender- and race-awareness training for all professionals of the Specialized Delegations for Women’s Assistance, which is in its final phase, and several initiatives in the states of Paraíba and Ceará with support from the federal government. Regarding the simplification of criminal procedure, the State noted the passage of the Judiciary Reform bill and presentation of a draft domestic violence law to Congress on November 25, 2004, which was based on a proposal drawn up by the Consortium of Feminist NGOs. The State also reported that there were currently 404 Specialized Delegations for Women’s Assistance and 86 sheltered housing facilities supported by the federal government. Finally, regarding its education plans, the State said it had held a Pedagogical Workshop for Devising Instructional Materials for Creating Comprehensive Attention Networks for Women Victims of Domestic and Sexual Violence, and that topics addressing gender discrimination were included in the National Curriculum for the Training of Police Officers.
75. Based on the information furnished by the two parties, the Commission concludes that the recommendations referred to have been partially complied with.
Cases 11.286 (Aluísio Cavalcanti et. al.), 11.407 (Clarival Xavier Coutrim), 11.406 (Celso Bonfim de Lima), 11.416 (Marcos Almeida Ferreira), 11.413 (Delton Gomes da Mota), 11.417 (Marcos de Assis Ruben), 11.412 (Wanderlei Galati), and 11.415 (Carlos Eduardo Gomes Ribeiro) - Report Nº 55/01, (Brazil)
76. In Report Nº 55/01 of April 16, 2001, the IACHR made the following recommendations to the Brazilian State:
1. That it carry out a serious, impartial, and effective investigation into the facts and circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and of the assaults on and attempted homicides of Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that it duly prosecute and punish the persons responsible.
2. That such investigation include the possible omissions, negligence, and obstructions of justice that may have resulted from the failure to convict the persons responsible in a final judgment, including the possible negligence and mistakes of the Public Prosecutor’s Office and of the members of the judiciary who may have decided to waive or reduce the corresponding sentences.
3. That the necessary measures be taken to conclude, as soon as possible and in the most absolute legality, the judicial and administrative proceedings regarding the persons involved in the above-noted violations.
4. That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.
5. That the necessary measures be taken to abolish the jurisdiction of the military justice system over criminal offenses committed by police against civilians, as proposed by the original bill, introduced in due course, to repeal Article 9(f) of the Military Criminal Code, and to approve, to take its place, the single paragraph proposed in that bill 27.
6. That the Brazilian State take measures to establish a system of external and internal supervision of the military police of São Paulo that is independent, impartial, and effective.
7. That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.
77. The parties submitted no information regarding compliance with the aforesaid IACHR recommendations. Consequently, and in accordance with the evaluation set out in the 2003 Annual Report, the Commission concludes that the recommendations are still pending compliance.
Case 11.517 - Report Nº 23/02 Diniz Bento Da Silva, (Brazil)
78. In Report Nº 23/02 dated February 28, 2002, the IACHR made the following recommendations to the Brazilian state:
1. Conduct a serious, effective, and impartial investigation through the ordinary justice system to determine and punish those responsible for the death of Diniz Bento da Silva, punish those responsible for the irregularities in the investigation by the military police, as well as those responsible for the unjustifiable delay in conducting the civil investigation, in accordance with Brazilian law.
2. Take the necessary steps to ensure that the victim’s family receives adequate compensation for the violations established herein.
3. Take steps to prevent a repetition of such events and, in particular, to prevent confrontations with rural workers over land disputes, and to negotiate the peaceful settlement of these disputes.
79. The State submitted no information regarding compliance with the aforesaid IACHR recommendations. Regarding recommendation No. 1 (supra), the petitioners reported that the criminal case file dealing with the murder of Diniz Bento da Silva was being analyzed by the public prosecution service so that the investigations could continue at a later date, and that they were unaware of whether any steps had been taken to punish those responsible for the proven irregularities and the unwarranted delay in the proceedings. The petitioners also stressed the fact that 11 years after the murder, the criminal proceedings were still at the investigation phase. Regarding recommendation No. 2 (supra), they stated that the victim’s family had received no compensation, although a second-instance civil judgment ordering reparations for them had been handed down. However, the petitioners added that the possibility of an appeal was still pending, and so payment had not been made. As regards recommendation No. 3 (supra), they reported that the State has made little progress in connection with land-conflict violence, and that the number of cases of such violence, and of impunity, in Brazil and the state of Paraná was still a cause for concern. They also reported that the federal government has announced, through its Ouvidoria Agraria (Ombudsman), the launch of a National Plan to Combat Rural Violence, to be carried out in 2005 in the states of Pará, Mato Grosso, Rondônia, Bahia, and Paraná.
CASE 10.301, Report Nº 40/03, Parque São Lucas (Brazil)
80. In Report 40/03 of 8 October 2003, the IACHR recommended the following to the Brazilian Government:
1. that it adopt the legislative measures needed to transfer to the regular criminal courts the trial of common crimes committed by military police officers in the performance of their public order functions.
2. that use of the cells designed for solitary confinement (celas fortes) be discontinued.
3. that it punish, in keeping with the gravity of the crimes committed, the civilian and military police officers involved in the facts that gave rise to the instant case.
4. in those cases in which it has not done so, that it pay fair and adequate compensation to the victims’ next-of-kin for the harm caused as a result of the breaches of the above-mentioned provisions.
81. In the same report, the Commission examined the degree of compliance of such recommendations, as follows:
92. In this respect, the Commission considers that the recommendation that Brazil “adopt the legislative measures needed to transfer to the regular criminal courts the trial of common crimes committed by military police in the performance of their public order functions” has met with partial compliance. In effect, the IACHR reiterates that although Law No. 9,299/96 represents major progress in this respect, it is insufficient, as it merely transfers to the regular courts crimes against life committed by military police in the performance of their functions, and keeps jurisdiction over all other crimes committed by members of the Military Police under the Military Police.
93. With respect to the recommendation that “use of the cells designed for solitary confinement (celas fortes) be discontinued,” the Commission reiterates that this recommendation has not yet met with compliance.
94. As regards the recommendation that the state “punish, in keeping with the gravity of the crimes committed, the civilian and military police officers involved in the facts that gave rise to the instant case,” the Commission observes that according to the information provided by Brazil on March 10, 2003, a criminal proceeding was begun in 1989 against 32 people in relation to the facts of the present case: José Ribeiro (jailer); Celso José da Cruz (police investigator); Carlos Eduardo de Vasconcelos (police officer); and 29 military police officers.
95. From that information, it also appears that José Ribeiro was convicted through a final and firm judgment, and sentenced to a prison term of 45 years and six months, and that he is serving the sentence in a São Paulo prison. Celso José da Cruz and Carlos Eduardo de Vasconcelos were acquitted, and the respective decisions were appealed, and are now awaiting a decision by the Court of Justice (Tribunal de Justiça) of São Paulo. Both are free. Finally, and with respect to the 29 military police officers who were also accused of participating in the facts, it was decided not to try them, in a decision that was appealed by the Public Ministry, yet to date there has been no decision on that appeal. Accordingly, this recommendation has not met with full compliance.
96. As regards the recommendation that the Brazilian state, “in those cases in which it has not done so ... pay fair and adequate compensation to the victims’ next-of-kin,” the Commission observes that the government of the state of São Paulo published Decree 42,788 on January 8, 1998, authorizing the payment of compensation to the next-of-kin of the victims who died, for moral injury, and for an amount equivalent to 300 minimum salaries per dependent. In this respect, a working group was created within the Office of the Attorney General for the state, to identify the beneficiaries and the amount of compensation. The IACHR was informed that at the end of the work of that working group, the result was that compensation was paid to the next-of-kin of another seven victims, it was determined that there were no beneficiaries with respect to two victims; and, finally, that the next-of-kin of two of the victims had pursued judicial actions against the state for material and moral injury, and the state was awaiting the results of those proceedings before paying compensation.
82. The State did not present updated information on its compliance with the aforementioned recommendations. On the other hand, the petitioners noted that, with regard to recommendation No. 1 (supra), after the approval of Law 9.299/96, no other bill has been proposed by the Government, and the previously presented bills have not advanced in Congress. As regards recommendation No. 2 (supra), they asked that the Commission requested to the Brazilian State proof that the use of cells designed for solitary confinement (celas fortes) has been discontinued. Moreover, the petitioners emphasized that the conditions of detention in the Police Districts of São Paulo have not changed since 1989, when the deaths occurred at Police District No. 42. In fact, the petitioners presented information from Chapter VIII of I Relatório da Comissão Municipal dos Direitos Humanos about the prison situation of 29 Police Districts that were visited in 2004.
83. Regarding recommendation No. 3 (supra), the petitioners reported that the criminal suit against Celso José da Cruz, who is currently in liberty, has been inactive since 16 April 2001, when the Ministerio Público filed an appeal which remains pending. On the other hand, Carlos Eduardo Vasconcelos was acquitted by a final judgment that became res judicata in September 2003. With respect to the 29 military police who were indicted, the petitioners alleged that there have been no changes in their situation since the publication of the Report, and the same appeal remains pending. Finally, as regards recommendation 4 (supra), they emphasized that they do not have acess to the concluding results of the Working Group that was created within the Procuradoria Geral do Estado. Therefore, they requested that the IACHR recommends that the Brazilian State presents information and documentary evidence about the identification of the beneficiaries and the amount of compensation awarded to them.
84. On the basis of the foregoing information, the Commission concludes that the relevant recommendations in this case have been partially complied with.
Case 11.289, Report Nº 95/03, José Pereira (Brazil)
85. On October 24, 2003, the IACHR published Report 95/03, detailing the points contained in the friendly settlement agreement signed by both parties on September 18, 2003. This agreement set the following commitments for the State:
I. Recognition of Responsibility
1. The Brazilian State recognizes its international responsibility in relation to case 11.289, even though the perpetration of the violations is not attributed to state agents, since the state organs were not capable of preventing the occurrence of the grave practice of slave labor, nor of punishing the individual actors involved in the violations alleged.
2. The public recognition of the responsibility of the Brazilian State in relation to the violation of human rights will take place with the solemn act of creating the National Commission for the Eradication of Slave Labor – CONATRAE (created by Presidential Decree of July 31, 2003), which will take place on September 18, 2003.
3. The parties assume the commitment to keep under reserve the identity of the victim at the moment of the solemn act recognizing State responsibility and in public declarations about the case.
II. Trial and punishment of the individuals responsible
4. The Brazilian State assumes the commitment to continue with the efforts to carry out the judicial arrest warrants against the persons accused of the crimes committed against José Pereira. To this end, the Friendly Settlement Agreement will be forwarded to the Director-General of the Department of the Federal Police.
III. Pecuniary reparation
8. In order to compensate José Pereira for the material and moral damages suffered, the Brazilian State forwarded draft legislation to the National Congress. Law No. 10,706 of July 30, 2003 (copy attached), which was adopted urgently, and which provided for the payment of R$ 52,000 (fifty-two thousands reals) to the victim. The amount was paid to José Pereira by a bank order (No. 030B000027) of August 25, 2003.
9. The payment of the compensation described in the previous paragraph releases the Brazilian State of any further duty of reparation for José Pereira.
IV. Preventive measures
IV.1 Legislative changes
10. In order to improve the National Legislation aimed at prohibiting the practice of slave labor in Brazil, the Brazilian State undertakes to implement the actions and proposals for legislative changes contained in the National Plan for the Eradication of Slave Labor, drawn up by the Special Commission of the Council for the Defense of Human Rights, and initiated by the Government of Brazil on March 11, 2003.
11. The Brazilian State undertakes to make every effort to secure the legislative approval (i) of Proposed Law No. 2130-A, of 1996, which includes among the violations of the economic order the use of “unlawful means of reducing production costs such as the non-payment of labor and social taxes, exploitation of child, slave, or semi-slave labor”; and (ii) the version presented by the Deputy Zulaiê Cobra to take the place of the proposed law No. 5,693 of Deputy Nelson Pellegrino, which amends Article 149 of the Brazilian Criminal Code.
12. Finally, the Brazilian State undertook to defend the establishment of federal jurisdiction over the crime of reduction to conditions analogous to slavery, for the purpose of preventing impunity.
IV.2 Measures to Monitor and Repress Slave Labor
13. Considering that the legislative proposals will demand considerable time to be implemented insofar as they depend on the action of the National Congress, and that the gravity of the problem of the practice of slave labor requires that immediate measures be taken, the State undertakes from this moment to: (i) strengthen the Public Ministry of Labor; (ii) ensure immediate compliance with the existing legislation, by collecting administrative and judicial fines, investigating and pressing charges against the perpetrators of the practice of slave labor; (iii) strengthen the Mobile Group of the MTE; (iv) take steps along with the Judiciary and its representative entities to guarantee that the perpetrators of the crimes of slave labor are punished.
14. The Government undertakes to revoke, by the end of the year, by means of the appropriate administrative acts, the Cooperation Agreement signed between the owners of estates and authorities of the Ministry of Labor and Public Ministry of Labor, signed in February 2001, and which was denounced in this proceeding on February 28, 2001.
15. The Brazilian State undertakes to strengthen gradually the Division of Repression of Slave Labor and Security of Dignitaries (STESD), established under the Department of the Federal Police by means of Administrative ruling (Portaria)-MJ No. 1,016, of September 4, 2002, so as to give the Division adequate funds and human resources for the proper performance of the functions of the Federal Police in the actions to investigate reports of slave labor.
86. The State presented no information regarding compliance with these commitments, in spite of the fact that item V of the friendly settlement states that in order to “monitor compliance with this agreement until the effective implementation of all of its clauses, the parties shall send annual reports on the progress made.”
87. The petitioners, in turn, stated that the commitments in points I and III (supra) had been fully met. With respect to point II (supra), they stated that the accused remain fugitives from justice, and that they have received no confirmation that the friendly settlement agreement has been conveyed to the Director General of the Federal Police Department as stipulated in the agreement.
88. E As regards point IV.1 (supra), the petitioners reported that the State has made little progress with the legislative reforms described therein. Most of the proposed legislative amendments set out in the Plan for Eradicating Slave Labor, say the petitioners, are still undergoing analysis and have not yet been adopted. In addition, some of the planned bills were never even presented to Congress, and the bill on the incorporation of the Labor Prosecution Service was sent to the archive on April 12, 2004. However, they did note that the creation of new federal and labor courts took place in 2003 with the enactment of Laws 10.722 and 10.770, and that the slave labor question was addressed in the 2004-2007 Multi-Year Plan (PPA). With respect to the legislative reforms specifically identified in the Agreement, the petitioners reported that the bill for Law No. 2.130-A of 1996 and the replacement bill for Law No. 5,693 have not yet been approved. Finally, they reported that the question of federal jurisdiction over the crime of reduction to conditions analogous to slavery was still being debated from the perspectives of jurisprudence and doctrine.
89. With reference to point IV.2 (supra), the petitioners recognized that there had been a reasonable increase in the number of inspections, Mobile Group teams, and freed workers. Nevertheless, they also highlighted the precarious working conditions of the inspectors and the absence of published official date, which makes monitoring compliance with the commitments impossible. According to the petitioners, the scant information available indicates that the number of criminal complaints is substantially lower than the number of flagrante delicti cases. The petitioners claim that until late 2003 they were not informed about the revoking of the Cooperation Agreement signed by estate owners and authorities from the Ministry of Labor and the Labor Prosecution Service. They also report they have no information about the federal police’s Division of Repression of Slave Labor and Security of Dignitaries (STESD), and that they cannot yet assess the participation of the Federal Public Prosecution Service’s prosecutors in the inspection efforts.
90. Finally, as regards IV.3 (supra), the petitioners report that the National Slave Labor Awareness Campaign was launched in Redenção, Pará. However, they noted that they were not invited to participate in the event and, consequently, could not report whether or not the terms of the friendly settlement agreement were publicized; neither do they have information about the possibility of seminars being held to address the eradication of slave labor in Pará state.
91. In light of these comments, the IACHR concludes that the actions set out in the friendly settlement agreement have been partially complied with and, in accordance with the provisions of Report 95/03, it will continue to monitor and supervise the terms of the friendly settlement.