ANNUAL REPORT OF THE IACHR 2006
CASES 11.286, Aluísio Cavalcante 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)
94. In its April 16, 2001 Report No. 55/01, the IACHR issued 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.
95. The State has not submitted information regarding its compliance with the aforementioned IACHR recommendations. The petitioners, for their part, have presented information regarding these cases, which can be summarized as follows:
- Case 11.286 (Aluísio Cavalcante): They affirm that only three military policemen have been tried, on June 12, 2003, and they were acquitted. The office of the prosecutor appealed the decision and the result of the appeal may take more than three years more.
- Case 11.407 (Clarival Xavier Coutrim): The petitioners inform that the defendants were acquitted by the military court that tried them. It was also decided, they add, that compensation was out of order, and that said decision was appealed but has not yet been decided.
- Case 11.413 (Delton Gomes da Mota): The petitioners inform that the military policemen charged in this proceeding appealed the decision finding them guilty. The court accepted their arguments and decided they should receive a new trial, with no date set for it. They are waiting for the judgment in order to file action for compensation.
- Case 11.417 (Marcos de Assis Ruben): the petitioners inform that a judgment was handed down deciding not to try the accused (sentencia de improcedencia [judgment of out of order]. This judgment was appealed by the Office of the Attorney General, but to date no decision has been handed down.
- Case 11.412 (Wanderlei Galati): the petitioners inform that the military policeman who shot the victim was tried and convicted, and sentenced to such a short sentence that it was affected by the statute of limitations, so he was not imprisoned at all. They add that the suit for damages was declared out of order, and that the mother of the victim was compensated.
- Case 11.406 (Celso Bonfim de Lima): The petitioners stated that the military police officer who shot the victim was convicted but not expelled from the force. Indeed, he never served any time either, because the sentence he was given was so light that the statute of limitations had already expired. The petitioners added that the ruling on the suit for damages was in the petitioners’ favor and called for payment of a monthly allowance. While the monthly allowance is being paid, the amount owed for the period from the time the events occurred to the date on which payment of the allowance began is still due and payable.
- Case 11.416 (Marcos Almeida Ferreira): The petitioners noted that the military policeman who shot the victim was convicted, but served no time because the statute of limitations had expired. Nor was he expelled from the police force. They added that the suit seeking damages was declared admissible and a monthly allowance was ordered. The amount owed for the period from the date of the events to the date on which payment of the monthly compensatory allowance began took place in the year 2005.
- Case 11.415 (Carlos Eduardo Gomes Ribeiro): The petitioners observed that the military police officer who shot the victim was not convicted, as the statute of limitations had expired. His only punishment was an administrative sanction from the Police. They added that the suit seeking compensation is moving forward: the Treasury has issued a statement in agreement with the accountant’s estimates of the amount by which the victim should be compensated. The amount was received by the victim in the year 2006.
96. The Commission, therefore, concludes that compliance with the aforementioned recommendations remains pending.
CASE 11.517, Report No. 23/02, Diniz Bento Da Silva (Brazil)
97. 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.
98. The State failed to submit any information on compliance with the aforementioned recommendations of the IACHR. The petitioners, for their part, said, with respect to recommendation 1 (supra), that more than 12 years after the demise of Diniz Bento da Silva, the police investigation is still under evaluation by the Public Prosecutor’s Office, and that no progress has been made. The petitioners say that under the Brazilian Code of Criminal Procedure the maximum time limit for the conclusion of a police investigation is 30 days.
99. As regards recommendation 2 (supra), the petitioners mentioned that in May of 2005 the State of Paraná lodged a special appeal against the court decision ordering the state to pay compensation to the next-of-kin of the victims. This appeal was found to be untimely and consequently was not admitted. However, the State of Paraná lodged another appeal, agravo de instrumento, against the latter decision, to obtain a better examination of the admission of the Special Appeal. The agravo de instrumento appeal was admitted by the Superior Court of Justice in October of 2006, and the proceeding is now under examination in said venue. This proceeding may take years, which would entail that the next-of-kin of the victim would not receive any compensation for the duration of the procedure. They note that the son of the victim, Marcos Antonio da Silva, died on June 19, 2006, in a traffic accident.
100. With respect to recommendation 3 (supra), the petitioners said that the problem of violence in rural parts of Brazil is becoming increasingly serious. They mentioned that the Comisao Pastoral da Terra (CPT) recorded 1,881 conflicts in rural areas, of which 49 took place in the State of Paraná. They involved approximately 1,021,355 people and produced the alarming figures of 38 fatalities. They added that during this period there were 56 murder attempts, 266 death threats (5 in the State of Paraná, 33 persons were tortured, 63 were physically assaulted, 261 were imprisoned (35 in the State of Paraná) and 166 were injured (8 in the State of Paraná). In addition, 4,366 families were expelled by private parties from the lands they were occupying (100 in the State of Paraná), 25,618 families were evicted following court orders (3,599 in the State of Paraná) and 16,995 families were victims of intimidation on the part of gunmen (620 in the State of Paraná). They added that the creation of private militias in rural zones has been on the rise, and impunity continues to be a contributing factor to violence in rural parts.
101. Based on the information provided by the petitioners, the Commission concludes that compliance with the aforementioned recommendations remains pending.
CASE 10.301, Report Nº 40/03, Parque São Lucas (Brazil)
102. In Report Nº 40/03 of October 8, 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.
103. In the same report, the Commission examined the degree of compliance of such recommendations, as follows:
[T]he 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.
104. With respect to the recommendation that “use of the cells designed for solitary confinement (celas fortes) should be discontinued,” the Commission reiterates that this recommendation has not yet met with compliance.
105. 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.
106. 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.
107. 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 personal 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, 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 seven victims; next-of-kin were not found for 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 pecuniary and non-pecuniary damages, and the state was awaiting the results of those proceedings before paying compensation.
108. The Commission recognizes the importance of the payment of compensation through the adoption of administrative measures, but must note that there are still victims and next-of-kin who have not received compensation, and whose rights need to be protected.
109. The petitioners said with respect to recommendation No. 1 (supra) that unfortunately there has been no change in the information to report since last year. After enacting Law 9.299/96, no other legislation has been proposed by the administration, and the existing bills related to this issue have not made headway in Congress. They added that in accordance with the aforementioned law, bodily injury, manslaughter, illegal imprisonment, torture, extortion and other crimes committed by the military police remain under the jurisdiction of military courts. They state that in the hearing before the Commission on the competence of Brazilian military justice, the Brazilian state undertook the commitment of organizing a national seminar to promote debate on the topic, as well as possible legal reform. On May 6, 2005, there was a meeting in Brasilia with representatives of the petitioners to establish a strategy for the seminar. The initiative, after almost 12 months since the hearing, has not materialized.
110. Regarding recommendation No. 2 (supra), the petitioners stated that on December 15, 2005, the State informed that the project to dismantle solitary confinement cells in the offices of chiefs of police of the City of São Paulo was nearly finalized, and that only some special jails remained working, such as 13th, 89th, 18th and 8th DPs [Police Precincts]. The petitioners argued that, according to information they submitted on January 17, 2006, it was on official data records offered by the Department of Police Investigations (DIPO, according to its acronym), that on January 9 of that same year, there were 387 people detained in the precincts of the capital city of the State of São Paulo. They said that this number of people under arrest is worrisome, because it is high relative to the population capacity that these facilities have. The conditions to which these detainees are subjected, the petitioners said, is similar to those found in the 42nd DP, Parque São Lucas. They gave a list of facilities in the State of São Paulo that still use the aforementioned kind of detention units. They also described the so-called “special jails,” specifically eight: one of them is used for former policemen or their relatives (8th DP, Belem), another for women with university education (89th DP, Morumbi), another for men with university education (13th DP), yet another for child-support and/or alimony debtors (18th DP), and one for persons under a regime of temporary imprisonment (77th DP).
111. The petitioners stated that the process of dismantling the detention centers began in 1995. Of 93 facilities in the city of São Paulo, 77 were dismantled. This process did not cover the entire State of São Paulo, and hence the petitioners ask that the Commission request the Federal State to submit evidence proving that the solitary confinement cells have been indeed dismantled in the aforementioned zone.
112. As to recommendation No. 3 (supra), the petitioners noted that, concerning the criminal trial against José Ribeiro, he was convicted and sentenced. With respect to Celso José da Cruz, they said that he was convicted by the court of first instance, and acquitted in the second instance. The Office of the Attorney General filed an appeal which, after more than five years have passed, has yet to be decided. The individual is free. Carlos Eduardo Vasconselos was acquitted in both instances; the judgment became final in 2003. With respect to the 29 military policemen involved, the court decided not to prosecute them; hence they will not be judged by a collegiate court for the crime of homicide, but by a single judge for the crime of bodily injury. The Office of the Public Prosecutor filed an appeal against the decision, and this appeal, in turn, has not yet been decided.
113. Finally, regarding recommendation No. 4 (supra), the petitioners emphasized that they have not had access to the final results of the Work Group created in the Office of the Attorney General of the State. They also requested that the IACHR recommend to the Brazilian state that it submit both information and documentary evidence on the ends results of the work, in order to identify the beneficiaries and determine the amount of compensation.
114. The State, for its part, has not, to date, submitted any information related to the foregoing.
115. The Commission concludes that the State complied partially with the aforementioned recommendations.
CASE 11.289, Report Nº 95/03, José Pereira (Brazil)
116. On October 24, 2003, the IACHR published Report Nº 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 arrest warrants issued 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 reparations
5. In order to compensate José Pereira for the material damages and personal injury 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) on August 25, 2003.
6. 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
7. 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.
8. 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 proposed law No. 5,693 of Deputy Nelson Pellegrino, which amends Article 149 of the Brazilian Criminal Code.
9. 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
10. 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.
11. 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.
12. 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.
13. The Brazilian State undertakes to take initiatives vis-a-vis the Federal Public Ministry to highlight the importance of having Federal Prosecutors attach priority to participating in and monitoring investigations on slave labor.
IV.3. Measures to raise awareness of and opposition to slave labor
14. The Brazilian State will undertake a national campaign to raise awareness of and oppose slave labor, in October 2003, with a particular focus on the state of Pará. On this occasion, through the presence of the petitioners, publicity will be given to the terms of this Friendly Settlement Agreement. The campaign will be based on a communication plan that will include the preparation of informational materials geared to workers, inserting the issue in the media through the written press, and through radio and TV spots. In addition, various authorities are to make visits to the targeted areas.
15. The Brazilian State undertakes to evaluate the possibility of holding seminars on the eradication of slave labor in the state of Pará no later than the first half of 2004, with the presence of the Federal Public Ministry, ensuring that the petitioners are invited to participate.
117. The State did not submit information on compliance with the friendly settlement commitments.
118. Regarding the trial and punishment of the responsible parties, according to point II (supra), the petitioners stated that the State, from the time it undertook to ensure that the arrest warrants issued were executed, to date, has not made any effort in this connection, and the accused remain as fugitives.
119. The Commission considers that the obligation agreed to in point III (supra) has been fully complied with.
120. With respect to point IV (supra), the petitioners underscored that legislative bills have still not been passed identifying as heinous crimes those of subjecting a person to a condition analogous to slavery, or of attracting a person to said condition; nor have bills been passed attaching penalties for slave labor, amending provisions of the Criminal Code and of Law 5.889/1973, which regulates rural labor. Congressional bill No. 108/2005, regarding the disqualification from financing and contracts of individuals on the “dirty list,” the petitioners contended, was withdrawn on November 21, 2006. It is now listed under No. 207/2006, under consideration in the Senate Committee for Human Rights and Participatory Legislation, since December 28, 2006.
121. Regarding the proposed amendment to article 243 of the Federal Constitution, mandating the expropriation of land wherever workers are found subjected to conditions analogous to slavery, the petitioners stated that it has remained in the House of Deputies for over eleven years.
122. With respect to passage of legislative bill No. 2.022/1996, banning businesses that directly or indirectly employ slave labor in the production of goods and services from entering into contracts with the government, and participating in government bidding processes, the petitioners stated that it remains pending in Congress. Along these same lines, they affirmed that a law entered into force on December 29, 2006, prohibiting federal public banks from offering or renewing loans to any institution with a director convicted of crimes connected with slave labor.
123. Regarding the obligation to classify as strategic the program of eradication of slave labor in the Multi-Year Plan [Plan Plurianual – PPA] 2004/2007, as well as to endow with sufficient resources for the implementation of the identified courses of action, the petitioners stated that workers who had been victims of a condition analogues to slave labor were included in the Agrarian Reform. The eradication of slave labor, they went on to say, is contemplated in the aforementioned bill, under No. 0107, with eleven different objectives. The budget proposal submitted by the executive branch to Congress for 2007 anticipates expenditures in this area in the order of 11,192,453 reales.
124. The petitioners stated that there has been no news or progress with respect to: 1) advancing the legislative bill creating the Labor Inspector [Auditor Fiscal del Trabajo] positions, 2) advancing the legislative bill creating the positions of Officer [Agente] and Commissioner [Delegado] of the Federal Police for the implementation of the actions included in the respective agreement, and 3) passage of the bill creating several positions in the Career of Administrative Technical Support for the Federal Office of the Attorney General [Carrera de Apoyo Técnico Administrativo del Ministerio Públic de la Unión].
125. The petitioners stated that, regarding the undertaking to create 183 Federal Courts, and Labor Law Courts, both legislative bills were passed and became Laws No. 10.772/2003 and No. 10.770/2003, respectively. The Labor Court of the city of Redençao began its functions in 2004, as part of a plan to increase the number of courts in the rural areas of the country. The establishing of courts in Xinguara and Sao Felix do Xingu is foreseen.
126. With respect to the commitment to make every effort to obtain passage of the legislative bill classifying as economic crimes the use of unlawful methods of cost reduction, such as non-payment of labor and social taxes, and the exploitation of child labor, and slave and semi-slave labor, the petitioners stated that the bill is still under the consideration of the Commission on the Constitution, Justice, and the Citizens of the House of Deputies, with no progress made since April 2004.
127. The petitioners maintained that, regarding the commitment on the part of the Brazilian state to defend the jurisdiction of the federal courts to try crimes of reduction to slavery-like conditions, there has been some jurisprudential progress, considering the judgments handed down in this area of the law.
128. The petitioners also recognized, regarding the commitment listed in point IV.2 (supra), the determination of the Mobile Team of the Ministry of Labor and Employment (MTE) to intensify inspections, while at the same time observed a tendency towards the decrease in the rate of responses to reports filed by civil society in this area. The petitioners maintained that, although the friendly settlement agreement established a series of measures on the inspection and repression of slave labor to be implemented by the State, in the meantime, given that the federal government has not published much of the data, they have been prevented from monitoring compliance with the agreement in this respect.
129. The petitioners stated that when the new anti-slavery propaganda campaign was launched on December 13, 2005, in the Planalto Palace, it was announced that measures would be adopted to reinforce the effectiveness of the norms prohibiting financing of land owners on the “dirty list.” Banks announced their support of the campaign. Later, they said, the Ministry for Development and Agriculture executed a decree of expropriation/sanction in the case of an estate located in Marabá, in the south of the State of Pará, for non-compliance with the social function of this property.
130. Regarding the obligation also undertaken in point IV. 2 (supra), of revoking before year’s end the February 2001 Cooperation Agreement [Término de Cooperación] between the owners of the estates and the authorities of the Ministry of Labor and the Public Ministry of Labor, the petitioners informed that the agreement has not yet been revoked, which in turn makes it easier for land owners to be punished timidly and ineffectively.
131. The petitioners stated, with respect to the commitment undertaken by the Brazilian state of gradually strengthening the Division for the Repression of Slave Labor and Security of Dignataries (DTESD), 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, also agreed upon in point IV.2 [supra], that there is no accessible information on the DTESD, nor on the support that it is allegedly given by the federal government. They contended that human resources fell short from the level proposed by the government plan; budget appropriations for travel expenses and transportation of Federal Police officers, in order to ensure their participation in inspections, were not made either.
132. The petitioners informed, regarding the agreement with the Brazilian state to take initiatives vis-a-vis the Federal Public Ministry to highlight the importance of having Federal Prosecutors attach priority to participating in and monitoring investigations on slave labor, that Federal Prosecutors who form part of the Theme Group [Grupo Temático] on Slave Labor in Brazil, created in 2001 under the Federal Office of the Attorney General, continue to participate intermittently in the Mobile Team’s operations.
133. Regarding the commitment undertaken by the State in point IV.3 (supra) of carrying out a national campaign to raise awareness of and oppose slave labor, planned for October 2003, and with a particular focus on the state of Pará, the petitioners stated that they do not know if the terms of the Friendly Settlement Agreement were publicized at the launching, on September 22, 2003, of the campaign “Slave Labor. Let Us Abolish this Disgrace Once and for All,”
134. The petitioners maintain, with respect to the commitment agreed upon with the State to evaluate the possibility of holding seminars on the eradication of slave labor in the state of Pará no later than the first half of 2004, with the presence of the Federal Public Ministry, and ensuring that the petitioners are invited to participate, that seminars and debates took place, and fora were created in the State of Pará on the subject of slave labor, including the participation of representatives of the Public Ministry of Labor, the Regional Head for Labor and rural producers’ unions. Measures were also taken towards a specific plan to fight slave labor by the Ministry of Agriculture and Development, a literacy reader was prepared – almanac of the literacy teacher – “Slave: no way,” [“Esclavo ni pensarlo”], plans to eradicate slave labor by the States of Matto Grosso and Tocantins.
135. Based on these considerations, the IACHR concludes that there is partial compliance with the actions listed in the Friendly Settlement Agreement and, in accordance with what was established by report 95/03, it will continue to monitor and supervise the points of this agreement.
CASE 11.556, Report Nº 32/04, Corumbiara Massacre (Brazil)
136. In Report 32/04 of March 11, 2004, the IACHR made the following recommendations to the Brazilian State:
1. Conduct a complete, impartial, and effective investigation into the events, by nonmilitary organs, to determine responsibility for the deaths, personal injuries, and other acts that occurred at Santa Elina ranch on August 9, 1995, and to punish all the material and intellectual authors, whether civilian or military.
2. Make adequate reparations to the victims specified in this report or to their next-of-kin, as appropriate, for the human rights violations determined in this report.
3. Adopt the necessary measures to prevent similar events from occurring in the future.
4. Amend Article 9 of the Military Criminal Code, Article 82 of the Code of Military Criminal Procedure, and any other domestic legal provisions that need to be amended in order to abolish the competence of the military police to investigate human rights violations committed by the military, and to transfer that competence to the civilian police.
137. The State failed to submit any information on compliance with the aforementioned recommendations of the IACHR.
138. The petitioners stated that in 2006 the State manifested its disposition to carry out negotiations regarding compliance with the Commission’s recommendations. As a result, three meetings of the petitioners and representatives of the State took place, with the purpose of establishing consensus on the implementation of the recommendations made. The first meeting was held in the Office of the Attorney General of the State of Rondonia, on March 16, 2006. The second meeting took place on November 10, 2006, in Porto Velho, State of Rondonia. The third meeting was held in the offices of the National Agrarian Auditor [Ouvidoria Agraria Nacional], on August 3, 2006. In these meetings the way to implement the recommendations in question was discussed; however, to date the proposals made by the State have not yet become part of a formal agreement.
139. With respect to recommendation No. 1 (supra), the petitioners stated that there has been no progress in judicial proceedings, and that compliance with this recommendation has largely been non-existent. All investigations carried out with respect to this matter suffered from irregularities and delays. Regarding recommendation No. 2 (supra), they affirmed that to date no victim or next-of-kin has received any compensation from the State. At this point in time, after the aforementioned meetings took place, the victims’ expectation of receiving the compensation they deserve has grown greatly.
140. The petitioners asserted, with respect to recommendation No. 3 (supra), that, although there is no recent record of new conflicts with the military police in the region where the facts of the instant case occurred, the problem of violence in the rural areas of Brazil is becoming ever more serious. They stated that the Comisao Pastoral da Terra (CPT) recorded, in 2005, 1,881 conflicts in rural areas (27 in the State of Rondonia), involving approximately 1,021,355 people, with the alarming figure of 38 fatalities (one in the State of Rondonia). Also recorded were 56 murder attempts, 266 death threats, of which 96 occurred in the State of Rondonia, 33 cases of torture, 63 persons were physically assaulted, 261 persons were imprisoned, 11 of these in the State of Rondonia, and 166 were injured. In addition, 4,366 families were expelled by private parties from the lands they were occupying (100 in the State of Paraná), 25,618 families were evicted following court orders, 750 of them in the State of Rondonia, and, finally, among the 16,995 families that were victims of intimidation on the part of gunmen 158 were in the State of Rondonia. They added that impunity continues to be a contributing factor to violence in rural areas.
141. Concerning recommendation No. 4 (supra), the petitioners stated that, after passage of Law 9.299/96, no other bill has been submitted by the administration, and the existing bills on the matter have not made any headway in the Congress. Pursuant to said law, bodily harm, manslaughter, illegal imprisonment, torture, extortion, and other crimes committed by military policemen continue to be under the jurisdiction of military courts. A thematic hearing was held on February 28, 2006 on the status of military justice in Brazil; in it a request was made to hold a seminar to discuss the possibility of a reform to adapt legislation regulating military justice to conformity with international standards of protection of human rights. The Brazilian state has not taken any steps towards this end.
142. Based on the information provided by the petitioners, the Commission concludes that compliance with the aforementioned recommendations is still pending.
CASE 11.634, Report Nº 33/04, Jailton Neri Da Fonseca (Brazil)
143. In Report 33/04 of March 11, 2004, the IACHR made the following recommendations to the Brazilian State:
1. That it make full reparations, in consideration of both moral and material damages, to the next-of-kin of Jailton Neri da Fonseca, for the human rights violations determined in this report, and, more specifically, that it do the following:
2. Ensure a full, impartial, and effective investigation into the crime conducted by nonmilitary organs, with a view to establishing responsibility for the acts related to the detention and murder of Jailton Neri da Fonseca and punishing the responsible parties.
3. Pay the next-of-kin of Jailton Neri da Fonseca compensation computed in accordance with international standards, in an amount sufficient to make up for both the material damages and the moral damages suffered on the occasion of his murder. Such compensation, to be paid by the Brazilian State, should be computed in accordance with international standards, and should be in an amount sufficient to make up for both the material damages and the moral damages suffered by the next-of-kin of Jailton Neri da Fonseca on the occasion of his murder and other violations of his human rights referred to in this report.
4. Amend Article 9 of the Military Criminal Code and Article 82 of the Code of Military Criminal Procedure, in addition to any other domestic legal provisions that need to be amended to abolish the competence of the military police to investigate human rights violations committed by members of the military police, and transfer that competence to the civilian police.
5. Adopt and implement measures to educate officers of the justice system and members of the police to prevent acts involving racial discrimination in police operations, and in criminal investigations, proceedings, or sentencing.
6. Adopt and implement immediate measures to ensure observance of the rights established in the American Convention, the Convention on the Rights of the Child, and the other national and international standards on the matter, in order to ensure that the right to special protection of children is enforced in Brazil.
144. The State failed to submit any information on compliance with the aforementioned recommendations of the IACHR.
145. The petitioners stated that a process of negotiation between them and the Brazilian state was begun in 2006, regarding compliance with the recommendations made in the instant case by the Commission. The process is at a standstill since September 2006, due to a lack of response on the part of the State. The petitioners since then have been waiting for the State to provide information regarding the additional information they have presented.
146. They contend that on June 2, 2006, the Commission forwarded to the petitioners a statement by the State manifesting its intention to resolve the issue through a friendly and negotiated procedure. On July 5, 2006, the petitioners received a request from the Commission for them to submit their observations on the information provided by the State. They responded to the request on August 25, 2005, submitting a proposal on the points that the aforementioned agreement should include, as follows:
1. Payment of pecuniary damages to Ms. Maria Santos Silva in the sum of 50,000 reales.
2. Symbolic reparations.
3. Effectively pressed charges against the policemen involved in the homicide of Jailton.
4. An amendment to Law 9.299/9, transferring jurisdiction over criminal homicide investigations by members of the military police to the civilian police, and excluding from the evidentiary record the results of investigations carried out by military police.
5. The creation of a Permanent Special Committee for the Reduction of Lethality in Police Actions, whose purpose would be to monitor and examine cases of lethal actions in which civil and military police officers are involved, with the aim of crafting public policies that will tend towards the elimination of the causes of lethal action, by learning about the circumstances in which it takes place, and identifying the recurring mistakes that continue to generate these occurrences.
147. The petitioners noted that the brief containing the proposal was forwarded by the Commission to the State on September 8, 2006, but to date there has been no response, leading them to infer that the State has not complied with the recommendations.
148. Based on the information provided by the petitioners, the Commission concludes that compliance with the aforementioned recommendations is still pending.
CASE 12.426, Ranie Silva Cruz; CASE 12.427, Eduardo Rocha da Silva and Raimundo Nonato Conceicao Filho (Brazil)
149. The petitioners submitted information on compliance by the Brazilian state with the Friendly Settlement Agreement that was signed on December 15, 2005, in the State of Sao Luis de Maranhao.
150. The commitments undertaken by the Brazilian state in the agreement include the following:
1) Recognition of its international responsibility in the instant case.
2) Trial and punishment of those responsible.
3) Symbolic reparations
4) Pecuniary compensation
5) Measures to avoid recurrence.
151. The agreement provides, as follow-up mechanisms, the holding of quarterly monitoring meetings by the Council for the Defense of Human Rights, the State Council for the Rights of the Child and the Adolescent, and the petitioners; in addition, the submission of half-yearly reports by the petitioners and representatives of the State on the implementation of the signed commitments.
152. Regarding the monitoring of the agreement, the petitioners maintained that up until September, 2006, there have been three joint meetings of the State Council for the Defense of Human Rights and the State Council for the Rights of the Child and the Adolescent. The first meeting was held on April 25, 2006, with the attendance of state councilmen for the rights of the child and the adolescent, representatives of governmental organs involved in the agreement, next-of-kin of the victims, and the petitioners. It was agreed in this meeting that each government organization would report on administrative actions taken to comply with the commitments undertaken, in order that questions may be offered regarding the report’s information by the other members of civil society.
153. The second meeting for monitoring the agreement was held on June 26, 2006, with the attendance of the aforementioned individuals, and the president and vice-president of the National Council for the Rights of the Child and the Adolescent. It was agreed in this meeting that the petitioners would submit an evaluation on compliance with the agreement to date. After the evaluation was presented, the State representatives made their questions and requested clarification regarding the information submitted. The third meeting took place on September 11, 2006, and it followed the same method. In addition to these three meetings for monitoring, two more were held to specifically address the implementation of the Center of Official Criminal Experts [Centro de Pericias Oficiales], which was a commitment included in clause 15.6 of the agreement.
154. Regarding international responsibility, the State acknowledged it, in accordance with clauses 4 and 5 of the agreement. This was done on the occasion of the signing ceremony of the agreement, where the Special Secretary for Human Rights of the Federal Government, and the Governor of the State of Maranhao publicly retracted themselves.
155. With respect to the trial and punishment of those responsible, on the 23rd, 24th, and 25th of October of 2006, a session of the Tribunal del Jurado Popular was held, in which Francisco das Chagas Rodrigues de Brito was the defendant, suspected by police investigations as the perpetrator of all the homicides in the instant case, in the State of Maranhao. The trial was for the murder of only one of the victims, Jonathan Silva Vieira. The defendant was found guilty and sentenced to 20 years and six months of imprisonment. Existing information indicates that the other proceedings related to the case will be tried soon.
156. Regarding symbolic reparations included in clause 7 of the agreement, the State affixed a plaque in honor of all the identified victims in the Protection of the Child and the Adolescent Complex, in San Luís, on the day the agreement was signed.
157. Regarding pecuniary reparations, the State only complied partially with item III.2 of the agreement. With respect to clause 8, to date none of the next-of-kin has received their houses. Up until May 2006, the State had only prepared the cadastre of the next-of-kin. With respect to clause 9, on the inclusion of the next-of-kin in existing social programs at the federal and state levels, according to the petitioners not all the next-of-kin of the victims were included in existing social programs. The only clause fully complied with was No. 10, which refers to the granting of an allowance to the next-of-kin of the victims; 26 families are now receiving this stipend. Regarding the other two families, it was not until the end of the month of October of 2006 that the mother of Joandelvanes Macedo Escocio, who was in another state, could come to Maranhao, and obtain authorization to receive the allowance and other agreed upon benefits. The next-of-kin of Alexandre Dos Santos Goncalves have not yet been found.
158. Regarding measures for non-recurrence, only clause 17, dealing with the reactivation of the chapter of the Public Defender in the Municipality of Paco de Lumiar, was complied with. Clauses 12 and 14 were not complied with, and clauses 15.4, 15.5, 15.6 and 16 were only partially complied with.
159. The Commission concludes that the points of the agreement reached by the parties have met with partial compliance.
CASO 11.771, Report Nº 61/01, Samuel Alfonso Catalán Lincoleo (Chile)
160. On April 16, 2001, the IACHR presented the following recommendations to the Chilean State:
1. Establish the parties responsible for the murder of Samuel Alfonso Catalán Lincoleo through due judicial process, so that the guilty parties may be effectively punished.
2. Adapt its domestic legislation to the American Convention, for which purpose it must declare Decree-Law No. 2191 of 1978 null and void.
3. Adopt the necessary measures to ensure that the victim’s next-of-kin receive adequate, timely reparations, including full satisfaction for the violations of the human rights established herein, as well as payment of fair compensation for material and nonmaterial damages caused, including pain and suffering.
161. The Commission requested the parties to provide information on the status of compliance with these recommendations. It did not receive a reply from either of them within the time fixed. Therefore, the Inter-American Commission considers that compliance with the recommendations on determination of responsibility for the murder of Mr. Catalán Lincoleo and derogation of Decree-Law 2191 continue pending. As regards reparations, although it has not been possible to verify compliance with the next-of-kin of the victim, the IACHR is of the opinion that the State has made progress through various general and specific measures that were mentioned in the 2005 Annual Report. The IACHR concludes that the Chilean State has partially complied with the recommendations of Report No. 61/01.