REPORT Nº 18/07
JOSÉ AIRTON HONORATO, JOSÉ MARIA MENEZES, ALEKSANDRO DE OLIVEIRA ARAUJO, DJALMA FERNÁNDES ANDRADE DE SOUZA, FABIO FERNÁNDES ANDRADE DE SOUZA, GERSON MACHADO DA SILVA, JEFERSON LEANDRO ANDRADE, JOSÉ CICERO PEREIRA DOS SANTOS, LAERCIO ANTONIO LUIS, LUCIANO DA SILVA BARBOSA, SANDRO ROGERIO DA SILVA, AND SILVIO BERNARDINO DO CARMO
March 3, 2007
1. On April 24, 2003, the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the IACHR") received a petition submitted by the Federaçao Interamericana de Dereitos Humanos (Inter-American Federation for Human Rights), represented by its president, Hélio Bicudo (hereinafter "the petitioner"), alleging a violation by the Federative Republic of Brazil (hereinafter "Brazil" or "the State") of Articles 1, 4, 5, 6, and 8 of the American Convention on Human Rights (hereinafter "the American Convention"), to the detriment of José Airton Honorato, José Maria Menezes, Aleksandro de Oliveira Araujo, Djalma Fernándes Andrade de Souza, Fabio Fernándes Andrade de Souza, Gerson Machado da Silva, Jeferson Leandro Andrade, José Cicero Pereira dos Santos, Laercio Antonio Luis, Luciano da Silva Barbosa, Sandro Rogerio da Silva and Silvio Bernardino do Carmo (hereinafter "the alleged victims").
2. The complaint concerns a series of linked events, the principal one being the murder of the alleged victims by military police on March 5, 2002. The petitioner claims that in 2001, police officers and executive and judicial authorities of São Paulo State began to recruit prisoners in the state penitentiaries to act as agents infiltrated into criminal organizations through a group called the "Group for Suppression and Analysis of Crimes of Intolerance" (hereinafter referred to by its acronym, GRADI), for the purpose of obtaining advance knowledge of criminal actions and making it possible to arrest potential offenders before the crime was committed. In some cases, they instigated the planning and commission of punishable acts, and the perpetrators were executed by the police while carrying out the plan, as occurred in the situation that is the subject of the complaint. That situation resulted in the death of 12 (twelve) alleged members of the gang known as Primeiro Comando da Capital (First Command of the Capital) (hereinafter "PCC"), who were traveling on a bus, according to the police, with the aim of launching an attack or freeing imprisoned comrades.
3. On June 21, 2005, the State responded to the petition, objecting to the failure to exhaust domestic remedies. It claims that on the date the complaint was lodged, the indictment entered in December 2003 against 53 (fifty three) police officers and 2 (two) prisoners had been under way for slightly more than a year, a short time in which to investigate such complex and sensitive events. Domestic judicial remedies are being implemented in accordance with the complexity of the case and the opposing rights of the individuals involved, and this justifies the pace of the proceeding; accordingly, the case should be declared inadmissible.
4. After analyzing the petition, and pursuant to Articles 46 and 47 of the American Convention, as well as Article 30 and related articles of its Rules of Procedure, the Commission decided to declare the petition admissible in relation to alleged violations of Articles 4, 8(1), and 25 of the American Convention in accordance with the general obligation to respect and guarantee rights as provided in Article 1(1) of the Convention, and at the same time decided to declare the petition inadmissible in relation to the alleged violation of Articles 5 and 6 of the Convention. The Commission also decided to publish this decision and include it in its Annual Report to the General Assembly of the Organization of American States (OAS).
II. PROCESSING BY THE COMMISSION
5. The original petition was received by the Commission on April 24, 2003 and filed as P-301/03, and was subsequently designated as Case 12.479. On April 24, 2003, the Commission sent an acknowledgment of receipt of the petition to the petitioner. On October 11, 2003, the petitioner submitted additional information on the complaint. On December 22, 2003, the Commission transmitted the pertinent parts of the complaint to the State pursuant to Article 30 of its Rules of Procedure, requesting the State to respond to the petition and giving it two months in which to submit its reply. The petitioner was informed of this fact on the same date.
6. On February 24, 2005, the petitioner delivered information related to the situation. Acknowledgment of receipt of the information was sent to the petitioner on March 9, 2005. On the latter date, parts of the information submitted by the petitioner were transmitted to the State, which, who was granted a period of 2 (two) months in which to submit its observations.
7. On June 14, 2005, the State submitted a request for an extension of the time granted to it to submit observations.
8. On June 20, 2005, the State submitted the information requested.
9. On June 7, 2005, the petitioner filed a request for precautionary measures to protect the lives of prisoners Marcos Massari and Gilmar Leite Siquiera, who had disappeared.
10. On August 5, 2005, acknowledgment of receipt of the information submitted was sent to the State, and a copy thereof was transmitted to the petitioner so that it could submit whatever observations it deemed appropriate within a period of one month.
11. On September 1, 2005, the petitioner asked the Commission if the period of one month that it had been granted to submit observations on the information delivered by the State might run from its receipt of the letter dated August 5, 2005 to September 25, 2005.
12. On September 7, 2005, the petitioner was informed that, pursuant to Article 25 of the Commission's Rules of Procedure, the precautionary measures that had been requested did not meet the admissibility requirements. It was made known to the petitioner, however, that the information presented in that regard would be taken into account as additional information on the case in question. This situation was brought to the State's attention on the same date.
13. On September 22, 2005, the petitioner submitted additional observations on the information presented by the State.
14. On October 7, 2005, the additional observations submitted by the petitioner were transmitted to the State. On the same date, acknowledgment of receipt of the information submitted on September 22, 2005 was sent to the petitioner.
15. On September 6, 2006, the petitioner submitted to the Commission a request for a hearing to be held on the case during its 126th regular period of sessions. On September 19, 2006, the petitioner and the State were informed that the Commission had decided to convene a hearing on admissibility, setting the date for the hearing on October 19, 2006, from 3 p.m. to 4 p.m., and requesting a list of the persons who would participate in it.
16. On October 19, 2006, from 3 p.m. to 4 p.m., a hearing was held on the case with the participation of the petitioners and the State.
III. POSITIONS OF THE PARTIES
A. Position of the petitioners
17. The petitioners state that the case involves serious human rights violations committed by police officers and executive and judicial authorities of São Paulo State, who in 2001 began to "recruit" prisoners in the state penitentiaries to act as agents infiltrated into criminal organizations. This action was carried out by a group of military and civilian police officers, known as GRADI, in order to obtain advance knowledge of criminal actions and arrest the potential perpetrators even before the crime had taken place. In some cases, these perpetrators were executed while creating situations that simulated criminal actions, as occurred on March 5, 2002, on the outskirts of the city of Sorocaba, São Paulo State, in the area known as "Castelinho." On this occasion, a military police operation resulted in the death of 12 (twelve) alleged members of the criminal gang PCC, who were traveling on a bus, according to the police, in order to launch an attack on a cash-transport aircraft or to rescue imprisoned comrades. The military police action was an ambush, planned with the aid of criminals recruited in the prisons, who were coerced into acting as infiltrated agents alongside the GRADI. Their objective was to execute the passengers on the bus, eliminating allegedly dangerous members of a group linked to organized crime and thereby generating a feeling of safety within São Paulo society and restoring confidence in the police and the public safety policy, both of which had been discredited.
18. When the agents involved in the action were publicly denounced, they sought to eliminate the prisoners who had collaborated with the GRADI, namely, Rony Clay Chaves, Rubens Leoncio Pereira, Marcos Massari, and Gilmar Leite, the last two having disappeared (they are assumed to have escaped with the collusion of prison officers). The Brazilian Government must be held responsible, since the actions described constitute violations of Articles 1, 4, 5, 6, and 8 of the American Convention. Such violations result from the use of a policing mechanism within the purview of the São Paulo State Public Safety Department, which availed itself of the prisoners, infiltrating them into criminal organizations in order to kill their members.
19. The petitioner affirms that it has exhausted domestic remedies pursuant to Article 46(1)(a) of the American Convention, since the action instituted before the Corregedoria Geral de Justiça (Office of the Court Administrator) in August 2002, asking that an investigation be launched into the criminal and administrative responsibility of the persons involved, has as yet yielded no results, and this constitutes unwarranted delay in the adoption of measures to prosecute and punish those responsible. Furthermore, the investigations into the involvement of state authorities were carried out by police officers subordinate in rank to those investigated. The judges who authorized the illegal removal of the prisoners so that they could be infiltrated into criminal groups were separated by decision of the State Court of Justice; however, the proceedings were quashed for lack of evidence by a resolution of February 16, 2005, which also affected the State Secretary of Public Safety. The latter official, under whose administration the Castelinho massacre occurred and who approved the operation, remains in office, and this constitutes flagrant disrespect for the principles of due process of law. Moreover, the proceedings are conducted in secret, which prevents their being formally monitored and jeopardizes the transparency required for the judicial machinery to operate efficiently.
20. In relation to the facts, the petitioner complains that on September 9, 2001, the then State Secretary of Public Safety created the Group for Suppression and Analysis of Crimes of Intolerance (GRADI), a group composed of civilian and military police officers that was linked directly to the Secretary's Office. The objective of this group was to receive complaints and investigate offenses committed by sectarian groups, such as fascists, neo-Nazis, or homophobes, that involved racial, sexual, and religious discrimination, as had occurred frequently in São Paulo State. Meanwhile, notwithstanding the importance of the reasons for its creation, the São Paulo GRADI began to act in a manner that conflicted with the principles on which it was based. During the period in which it was established, urban crime rates grew at a rate that drew headlines in the major media, causing concern and insecurity in São Paulo society. The media also reported that the authorities were under pressure to find ways to contain crime and that the public safety institutions had been discredited. To respond to the demands in this area and in view of the electoral contest that would begin in the second half of 2002, the State government decided, through the Public Safety Department, to give priority to publicizing actions that would eliminate the alleged principal criminal faction that was operating in São Paulo, the PCC. This criminal group had become popularly known as the most dangerous organization linked to criminal incidents in São Paulo State by taking charge of a string of uprisings that had occurred simultaneously in 19 (nineteen) high-security prisons in the capital and areas outside it in January 2002. With the objective stated above, the GRADI began to act as a secret intelligence service for the military police; in an initial phase, it tapped the telephones of the above-mentioned faction to prevent criminal acts.
21. The petitioners maintain that the GRADI began to carry out a series of illegal practices to achieve its objective. These included recruiting prisoners in high-security prisons in the capital by promising protection for their families, graduated prison regimes, and even early release. Apart from the promises, it was not clear what the consequences of refusal would be, so the prisoners did not take the risk of not accepting the "offers." They were removed from their cells for months to be infiltrated into gangs linked to the PCC or other criminal groups and thereby provide information that would disrupt future plans. The prisoners were removed on the basis of judicial authorizations issued by administrative judges (jueces corregidores) in the high-security prisons of São Paulo, in violation of the law, which allows prisoners to leave the prison compound only for court appearances, medical treatment, or funerals of close relatives, always accompanied by an escort.
22. According to the report, once freed, these prisoners, under the leadership of the GRADI, became police informants on the activities of these groups and were provided with the requisite logistical equipment, such as vehicles and cell phones. From the beginning of their activities, this corps recruited at least five prisoners and was responsible for 22 (twenty two) deaths. Many of these cases attracted publicity; to demonstrate this, newspaper clippings are attached. Among these situations, mention is made of the deaths of 5 (five) members of a specialized gang in Campinas, 4 (four) of whom were captured; the reports indicate that elements of the GRADI were involved. Another case put forward by the petitioner concerns the deaths of four members of the PCC and of the prisoner Fernando Rodrigues Batista, known as “the Jackal,” removed by members of the GRADI and the ROTA with judicial authorization from Avaré Penitentiary. The deaths occurred following an exchange of gunfire. The petitioner maintains that there is a São Paulo police file on the activities of the GRADI that will be attached to the petition.
23. The principal case attributed to the GRADI, according to the complaint, is the massacre of 12 persons that took place in the situation brought before the Commission. On March 5, 2002, as these individuals, who had been persuaded to attempt a robbery of a cash-transport aircraft, allegedly were on their way to carry out the attack, the military police formed a ring of approximately 100 agents on the outskirts of Sorocaba, São Paulo State, and ambushed the group at a toll station located on Ruta Senador José Ermirio de Moraes, known as "Castelinho.” Since the persons traveling in the vehicle allegedly resisted arrest, a shootout occurred. It is stated that over 700 bullets were fired and that only one police officer was wounded "in passing." The incident resulted in the deaths of the 12 (twelve) persons on board the vehicle, whose right to life was violated, according to the complaint in the present case.
24. According to the military police investigation, two Special Operations Command (COE) teams, 27 (twenty seven) highway military police officers, 2 (two) captains, 3 (three) lieutenants, one deputy lieutenant, 6 (six) sergeants, 2 (two) corporals, and 22 (twenty two) military police soldiers took part in the "Castelinho" operation on March 5, 2002, in addition to the GRADI team.
25. The 12 (twelve) alleged members of the PCC who were killed in the operation could, according to the petitioners, have been arrested two days earlier in the locality of Itaquaquecetuba, at a meeting where the final details of the planned assault were discussed. Present at that meeting were 2 (two) military police officers who were members of the GRADI and a recruited prisoner who had been infiltrated into the group. All of this is set out in a military police report of March 12, 2002 that was sent to the then administrative judge of the São Paulo DIPO, Mauricio Lemos Porto Alves, who has since been separated from office by the Court of Justice on the suspicion that he took part in issuing authorizations for the removal of prisoners.
26. The petitioner states that the São Paulo Airway Department (DAESP) reported that no cash-transport aircraft had been received for over five years at the airport to which the alleged victims were allegedly traveling. On July 27, 2002, the newspaper Folha de São Paulo published an article that reported in detail on the action carried out at "Castelinho". That same article reported that GRADI police officers had been accused of torturing 2 (two) prisoners collaborating with the group who had been removed with judicial authorization to investigate the PCC and who were in the Criminological Observation Corps (COC). On April 1st, 2002, these prisoners escaped in a GRADI vehicle; the officers filed a report with the 85th Police Division, neglecting to state that the thieves were working for them. When the prisoners were recaptured, they were beaten severely, and the perpetrators subsequently reported that the fractures, bruises, and lacerations seen on the victims were the result of their escape.
27. The petitioner also maintains that Dr. Nelson Massini, Full Professor of Forensic Medicine at Río de Janeiro State University, compared the spectrographic analysis of the residue and the corpus delicti with data on the victims of the confrontation between PCC members and military police officers. The first spectrographic analysis found traces of lead on the hands of only 3 (three) of the 12 (twelve) individuals who were executed and no residue at all on the other 9 (nine). Dr. Massini stated, however, that powder residues on a person's hands do not necessarily mean that person was using a firearm at a particular time. As to the autopsy reports, his analysis found serious flaws in the techniques. In describing the wounds caused by firearm projectiles, 11 (eleven) reports did not describe the trajectories of these projectiles, and the one description given was incomplete. The victims were killed by numerous shots; one of them had 11 (eleven) bodily perforations caused by projectiles. The average was 5 (five) impacts per victim. The professor emphasized that the autopsy reports had significant flaws, mainly because of the failure to describe the trajectories of the shots. The analysis found that all of the victims had been hit by the shots at a perpendicular angle; 9 (nine) of the bodies had wounds on the upper extremities characteristic of a defensive position, according to the Forensic Medicine.
28. With regard to the exhaustion of domestic remedies, the petitioner states that on August 10, 2002, in light of the complaints made by Rony Clay Chaves, Hélio Bicudo, and Orlando Fantazzini, representing civil society organizations and legislative entities – specifically, the Centro Santos Dias de Direitos Humanos, the Teotonio Vilela Human Rights Commission, and the Human Rights Commission of the Chamber of Deputies – these entities, concerned for the safety of the prisoners whose lives were at risk, as they had reported to the executive authority of São Paulo State, filed complaints with the 3 (three) spheres of authority (Minister of Justice, State Secretary of Human Rights, Presidents of the Chamber of Deputies and the Federal Senate, President of the Legislative Assembly of São Paulo State, Chairman of the Human Rights Commission of the Legislative Assembly). The Human Rights Commission of the Chamber of Deputies requested the Federal Minister of Justice to put the federal police in charge of the investigations into the GRADI; that request was not granted.
29. With a view to assigning responsibility to the police officers who had carried out the illegal actions, various human rights organizations, including the Brazilian Bar Association, São Paulo branch, offered to represent the petitioners before the Attorney-General's Office, the body competent to initiate the opening of an investigation into offenses committed in the criminal justice sphere. The Attorney General, Luiz Antonio Marrey, requested the Court of Justice to open an investigation to determine the involvement of the State Secretary of Public Safety, Saulo Abreu Filho, and of administrative judges Otavio Augusto Machado de Barros Filho and Mauricio Lemos Porto Alves. This investigation was quashed by the court owing to lack of evidence.
30. The federal government did not allow the prisoners who had collaborated with the GRADI to be transferred to institutions administered by the federal government, as the petitioner and other organizations had requested on August 10, 2002, nor did it transfer the investigations of the events to the federal police jurisdiction. The petitioner complains that there is no access to the investigation process and that it is being carried out by members of the Civil Police under the authority of the State Secretary of Public Safety. The petitioner maintains that the inadequacy of the investigations is exemplified by the delivery to the government attorneys of a completely blank videotape taken from the security cameras of the toll station where the events took place.
31. At the hearing on October 19, 2006, the petitioner maintained that, while there was an ongoing criminal proceeding against 53 (fifty three) military police officers and 2 (two) prisoners, it was in the investigatory phase and had many procedural phases to go through. The compensation proceedings instituted by relatives of 7 (seven) of the 12 (twelve) victims were inconclusive; only two of them had obtained a judgment, and in one of those cases, the compensation requested had been denied. There was no news, meanwhile, of the administrative proceeding to investigate the escape of prisoners Gilmar Siqueira and Marcos Massari from Itai prison in 2004.
32. In conclusion, the petitioner states that domestic remedies have been exhausted in accordance with the best interpretation of Articles 46(1)(a) and 29 of the American Convention, since 3 (three) years have elapsed since actions were initiated by the Brazilian authorities without producing any results; accordingly, it requests the Commission to open the case.
B. Position of the State
33. On June 20, 2005, the State submitted observations on the petitioner's arguments as to the facts and the merits. First, it describes all the arguments outlined by the petitioner.
34. Next, the State objects to the failure to exhaust domestic remedies, stating that the criminal action instituted in December 2003 against 53 (fifty three) police officers and 2 (two) prisoners has been under way for slightly more than a year, a short time in which to investigate such complex and sensitive events, since there can be no errors in the process. Any criminal investigation or proceeding must conform to due process of law, which includes strict observance of the principles of adversary procedure and ample defense – enshrined, moreover, in Articles 8 and 25 of the American Convention – since the issue involves opposing rights. If the State were to impose an accelerated pace on the proceeding, which would conflict with the exercise of the means and remedies guaranteed to the 55 (fifty five) defendants, that might constitute a violation of the human rights of these individuals and lead to annulment of the proceeding. The jurisprudence of the Inter-American Court of Human Rights is cited as to what is considered a reasonable period.
35. It is clear, the State affirms, that in a proceeding in which 55 (fifty five) persons are accused of three counts of aggravated homicide of 12 (twelve) others, the passage of slightly more than a year and a half in a proceeding still under way is not an unwarranted delay. This factor makes the admissibility requirement relating to the non exhaustion of domestic remedies applicable. Such remedies are being implemented in accordance with the complexity of the case and the opposing rights of the individuals involved, such as personal freedom and the judicial guarantees afforded to dozens of defendants, and this justifies the delay. Accordingly, the State requests that the case be declared inadmissible.
36. The State goes on to describe all the appropriate, effective, and available remedies to which the victims are not denied access. In accordance with article 5 of the Federal Constitution, the crime of intentional homicide is governed by the procedure enacted in the Brazilian Code of Criminal Procedure (CPP), which provides for the case to be tried before a panel of judges (jurado). Pursuant to the Code, the prosecution of crimes whose examination and judgment are assigned to a panel is divided into 2 (two) phases, following the criminal investigation, which is in progress: the opinion (pronúncia) phase, and the phase of judgment by a ruling court (Tribunal do Júri). In the opinion phase, once the criminal investigation is completed, the following occurs: (a) if the judge is convinced that the crime has been committed, and convinced by indicia that the defendant is the perpetrator, he will issue an opinion, giving the reasons for his opinion (art. 408 CPP), to be submitted to the judgment of the ruling court; (b) if he is not convinced that the crime has been committed, or convinced by sufficient indicia that the defendant is the perpetrator, the judge will dismiss the complaint (art. 409 CPP). In that case, so long as punishability is not time-barred, a proceeding may be instituted against the defendant(s) at any time if new evidence emerges (art. 409, sole paragraph, CPP); (c) if the judge is convinced that a crime other than intentional homicide has been committed, and he is not competent to judge that crime, he will transfer the proceeding to a judge who is competent to judge it. Pursuant to article 410 of the CPP, the defendant is then given more time to prepare his defense and indicate witnesses; (d) in the three instances cited, if the prosecution is not satisfied with the ruling judge's decision, it may, within five days of notification of the judgment, lodge an appeal for review (recurso em sentido estrito) with the Court of Justice (arts. 581(IV) and 586 CPP); (e) if the ruling judge is convinced that there are circumstances that preclude the crime or that exempt the defendant from punishment, he may automatically exonerate him, pursuant to article 411 CPP. Under this assumption, meanwhile, the Brazilian legal system itself provides for ex officio or automatic appeal to a higher court.
37. Once the case has been submitted for judgment by the ruling court, its decisions may be appealed within five days, if (art. 593(III) CPP): (a) an annulment occurs after the opinion has been issued; (b) the presiding judge's ruling is contrary to stated law or the decision of the panel members; (c) there is an error or injustice in the application of the penalty or security measure; (d) the decision of the panel members patently conflicts with the evidence on file. The State affirms that if the Public Prosecutor's Office does not appeal the judgment within the legal time limit, the victim, his spouse, child, parent, or sibling, although not authorized to attend the trial, may, pursuant to article 598 of the CPP, institute a remedy of appeal within 15 (fifteen) days following the expiration of the time limit for the Public Prosecutor's Office to file an appeal. If, while the Court of Justice is processing the remedy of appeal, assumption (a) occurs, it will annul the respective proceeding with all of its consequences, pursuant to articles 537 to 563 of the CPP; under assumptions (b) y (c), it will to proceed to make the necessary corrections; and under assumption (d), the defendant will be retried by the panel.
38. In the event that the alleged victims in the case are dissatisfied with the decision on appeal, there is still the possibility of instituting a special appeal to the Superior Court of Justice and an extraordinary appeal to the Federal Supreme Court within 15 (fifteen) days, as provided for in article 508 of the Code of Civil Procedure (CPC). The parties may submit a special appeal to the Superior Court of Justice pursuant to article 105(III)(a) and (c) of the Federal Constitution, if the decision of the State Court of Justice conflicts with any treaty or federal law (including the American Convention), or denies them standing, or interprets federal law differently than another court has. The parties may also submit an extraordinary appeal to the Federal Supreme Court, pursuant to article 102(a), if the decision of the State Court of Justice conflicts with provisions of the Federal Constitution, article 5 of which in essence restates the fundamental rights provided in the American Convention and argued by the petitioner in the present case. If, in the admissibility proceeding, the appeal court declines to grant the special appeal or the extraordinary appeal, the parties may institute an appeal against denial of judicial review (agravo de instrumento) within 10 (ten) days to the Superior Court of Justice or the Federal Supreme Court, respectively, in order to ensure the processing or consideration on the merits of the above-mentioned appeals, pursuant to article 544 of the CPC. The foregoing indicates that there are still a number of appropriate and effective remedies to be exhausted in the complex criminal proceeding under way concerning the Castelinho episode before the petition can be admitted by the inter-American human rights system.
39. With respect to the decision of the Special Body of the São Paulo State Court of Justice to quash the investigation into the alleged participation of Saulo de Castro Abreu Filho, Mauricio Lemos Porto Alves, and Octavio Augusto Machado, the State emphasizes that it was based on the lack of sufficient evidence to justify the opening of a criminal proceeding. According to the petitioner, this decision completely exhausted the possibility of reversing the situation of impunity with respect to these defendants. With due respect, that statement is untrue, since the said decision could have been the subject of a writ of mandate (mandado de segurança) against jurisdictional action addressed to the Plenary of the São Paulo State Court of Justice, in accordance with article 5 of the Federal Constitution. If the writ of mandate is denied, an ordinary appeal may be addressed to the Superior Court of Justice, in accordance with article 105 of the Federal Constitution. The Public Prosecutor's Office, which had standing (legitimatio ad causam) to institute such an appeal, did not see fit to do so; this seems to indicate that it did not view the decision of the Special Body as violating any right. The decision to quash the investigation in no way exhausts the domestic remedies under way to elucidate the facts relating to the Castelinho episode, especially in view of the more than 50 defendants facing criminal proceedings related to that episode.
40. The State's representatives wish to place on record that the allegations concerning the use of prisoners as police informants, and that the escape of prisoners Marcos Massari and Gilmar Siqueira Leite from Itai Penitentiary was facilitated by São Paulo State officials, are also being investigated internally, since there are no objective factors that would warrant their examination by the Commission.
41. With regard to the alleged delay in authorizing the heir of one of the victims to attend the criminal proceeding against the 53 (fifty three) police officers, the Brazilian State observes that the petitioner did not even indicate who that heir or that victim was, to facilitate a clarification of the question. As to the actions for reparation of damage put forward by the victims of the event, their pending status constitutes no violation of any right enshrined in the American Convention, since the arguments relating to the handling of the criminal proceeding apply to them as well; a remedy of appeal against the final judgment may be addressed to the Superior Court, pursuant to articles 513 to 521 of the CPC. If the Court's decision on the appeal alters the judgment on the merits and is not unanimous, a remedy of objection to a default judgment (embargo de divergência) may be instituted. If the judge-rapporteur of the body to which the appeal is addressed denies the objection to a default judgment, an appeal against denial of judicial review may be lodged with a higher court within 5 (five) days. Lastly, a special appeal may be instituted before the Superior Court of Justice and an extraordinary appeal with the Federal Supreme Court, as explained above.
42. At the hearing held on October 19, 2006, the State recognized that the criminal case against 54 defendants had been in the investigation phase since December 2003, and that up to then, only 2 (two) co-defendants who had allegedly acted as police collaborators had appeared to testify. The State argued that was due to the excessive complexity of the proceeding and the fact that the defendants were all members of the Military Police, who are constantly moved from place to place because of their duties, so that it is difficult to find them, and summoning them requires the assistance of several judges to issue the requisite documents.
43. The State affirms that it cannot help noting the petitioner's obvious hurry to submit the facts to the Commission before exhausting domestic remedies. The existence of 5 (five) ongoing actions for reparation, whereby the victims are seeking compensation from São Paulo State, means that the present petition constitutes a duplicate attempt to obtain civil reparation, which conflicts with the principle of non bis in idem. In conclusion, the State explains that the present case cannot be admitted by the Commission, since international jurisdiction is subsidiary to local jurisdiction. Nor is international jurisdiction an appeal instance, in accordance with the formula of the so-called "fourth instance." A number of cases decided by the Commission are cited, with verbatim transcriptions thereof. The case should be declared inadmissible, pursuant to Articles 46(1)(a) of the American Convention and 32(1) of the Commission's Rules of Procedure.
IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A. The Commission’s competence
rationae personae, rationae loci, rationae