On December 11, 1997 the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a complaint filed against the
Federal Republic of Brazil (hereinafter “the State” or “Brazil”)
by the Center for Human Rights and Popular Memory (CDHMP), the Holocaust
Human Rights Project (HHRP), and the Group of International Human Rights
Law Students (GIHRLS).
The complaint concerns the assassination of human rights attorney
Gilson Nogueira Carvalho in Natal, Río Grande do Norte on October 26,
1996, allegedly as a result of the victim’s denunciations and human
rights lawsuits in connection with the activities of a death squad known
as the “Meninos de Ouro” (Golden Boys), which is reportedly
composed of civilian policemen and staff of the Río Grande do Norte State
Public Security Secretariat.
also addresses the failure to provide a fair trial with due process and
the lack of compensation for the acts committed.
The petition alleges that the acts constitute violations of the
rights guaranteed in the American Convention on Human Rights (hereinafter
“the Convention”) including: Article
4 (right to life); Article 8 (right to a fair trial); and Article 25
(right to judicial protection) in conjunction with Article 1(1)
(obligation to respect rights).
The State replied that there was evidence of criminal activity in
the case of Gilson Nogueira, as well as traces of evidence of the
perpetrator, and the case is currently in the preliminary stages:
specifically, at the arraignment (pronuncia)
stage, which means that the investigations have reached a point at which
the conviction that a crime was committed exists, along with traces of
evidence of who committed it.
After analyzing the petition and the fulfillment of the requisites
for application of the Convention, the Commission decided to declare the
case admissible with respect to the alleged violations of the Convention:
Article 4 (right to life); Article 8 (right to a fair trial); and
Article 25 (right to judicial protection) in conjunction with Article 1(1)
(obligation to respect rights).
The Commission received the initial complaint in English on
December 11, 1997, and transmitted it to the State on January 21, 1998,
requesting a reply within 90 days. At
the State’s request that it be sent in Portuguese, the Commission asked
the petitioners to submit a translation, which was received on October 13,
1998, and transmitted that same day to the Government, with a request for
a reply within 90 days.
In view of the State’s failure to reply, on April 1, 1999, the
Commission sent a second request to the Government to reply within 30
days. On May 1, 1999, the
Commission reiterated to the State that it would consider application of
Article 42 of its Regulations if a reply were not received within 30 days.
On June 29, 2000, the State sent a one-paragraph statement
indicating that the procedure for investigating the murder of attorney
Gilson Nogueira de Carvalho had started and that an appeal had been lodged
against the previous file. No
other response has been received. (See the full text of the reply in
On August 25, 2000 the petitioners sent new information on the
status of the case, which was forwarded to the State on August 30, with a
request for a reply within 30 days. At
the time this report was written, no answer had been received from the
FACTS ALLEGED IN THE PETITION
Complainants note the prevalence of police violence in 1995
throughout the state of Rio Grande do Norte and especially in its capital,
Natal. Allegedly, Deputy
Secretary of Public Security, Maurilio Pinto de Medeiros (Pinto)
participated in the coordination of a death squad known as the “Meninos
de Ouro” (Golden Boys), comprised of civil police officers and
employees of the State Secretariat of Public Security under Pinto’s
According to the complaint, during Pinto’s tenure as Deputy
Secretary of Public Security, the Golden Boys, acting as state agents
under Pinto’s direction, committed a series of human rights violations,
including torture and murder.
The complaint refers to particular instances of police violence,
including the Mãe Luiza massacre, which occurred on March 5, 1995.
Police Officer Jorge Luiz Fernandes, known as Jorge the Smotherer,
allegedly kicked down the door of Maria Lúcia Costa’s home at 1:30 in
the morning, shot her in the face and shot her two sleeping children at
close-range, injuring her daughter in the arm and hip and blinding her son
in one eye. Allegedly,
Fernandes continued to fire eight more shots, killing her husband, and
then killed a pregnant woman observing the massacre from a neighboring
window. Evidence suggests the
crime was committed to prevent the husband from testifying about Fernandes’
involvement in another crime. Since
the massacre, Mrs. Costa and her son have been stalked and threatened
regarding their testimonies.
The complaint also notes the torture of Arivone Gonçalves who was
allegedly taken to Pinto’s office at the State Secretariat for Public
Security by three Golden Boys (Ranulfo Alves de Filho, Admilson Fernandes,
and Maurilio Pinto de Medeiros, Jr.) on April 2, 1993.
The three agents interrogated, kicked, beat, and electrocuted Gonçalves
through wires attached to his back, face, tongue, teeth, and testicles.
Despite complaints by Gonçalves and his attorney, Gilson Nogueira
(the primary subject of this petition), no serious investigation into the
torture was conducted.
The third example of police violence noted in the complaint
concerned Fernandes’ and Ranulfo’s alleged shooting of Wanderley
Dantas Marques on December 18, 1993, for a fee of 200,000 cruzeiros.
Fernandes then allegedly fired into a crowd of bystanders, killing
Jeferson do Nascimento, a sixteen-year-old boy.
Nascimento’s family reported the incident to police officers at
the hospital, at the local precinct, and at the Secretariat for Public
however, a police inquiry into the case was not opened until two years
later when Gilson Nogueira pressured prosecutors to investigate this
incident in connection with numerous other homicides attributed to
According to the complaint, as a result of Nogueira’s work and
NGO pressure, a Special Federal Commission was established to investigate
crimes committed by the Golden Boys.
The Special Commission heard over 100 witnesses, investigated about
30 cases, filed seven prosecutorial indictments against members of the
Golden Boys, filed two indictments against Pinto, and issued two reports,
finding civil police agents and employees of the State Secretariat for
Public Security responsible for all the crimes investigated.
The complaint states that by August 7, 1995, the Public
Prosecutor’s Office finally indicted Ranulfo and Fernandes for their
criminal activities and requested their pre-trial detention, which was
ordered. However, Ranulfo was
released four months later, and Fernandes has been allowed to leave prison
on numerous occasions.
The complaint points out that after the report of December 18,
the Special Commission was disbanded and the cases were effectively
dropped due to the apparent lack of institutional support within the state
apparatus and due to death threats against prosecutors, discouraging them
from pursuing the cases. To
date, no one has been convicted for any of the crimes investigated by the
B. Specific Violations
Alleged in the Complaint
According to the complaint, attorney and human rights defender
Gilson Nogueira spearheaded investigations into the previously mentioned
cases of torture and murder committed by police officers under the
authority of the Deputy Secretary of Public Security, Maurilio Pinto de
Medeiros (Pinto). Nogueira
provided legal assistance to the surviving relatives and victims of state
sponsored torture, murder, and other human rights violations attributed to
the Golden Boys. In addition,
Nogueira pressed the public prosecutors’ office to conduct independent
investigations into police-led death squad activities in Natal, and he
served as Assistant to the Prosecution in several of these cases.
Nogueira also exposed the climate of impunity in Natal that allowed
the Golden Boys to repeatedly escape prosecution for criminal acts.
The complaint alleges that as a result of attorney Nogueira’s
efforts to expose police violence, his was the first name on a “hit
In addition, he received death threats, which he reported to
federal authorities during a hearing organized by the Federal Human Rights
Commission in Brasilia on August 14, and 15, 1995.
The complaint notes that as a result of this hearing, Nogueira
received federal police protection, which began on September 6, 1995.
However, this protection was withdrawn on June 3, 1996.
According to the complaint, on October 20, 1996, in the state of
Rio Grande do Norte, Nogueira was gunned down outside of his home just
after midnight. The complaint
indicates that seventeen bullets were fired at Nogueira by three hit-men
in a red Volkswagen Golf, license plate number KCP171Z, which had been
reported stolen from its owner, Bruno Netto Ferraz, three weeks earlier. According to the complaint, medical exams established that
Nogueira’s wounds were caused by rounds fired from a twelve-shooter
shotgun and a 9-mm. rifle.
The complaint alleges that the three hit men fled the scene and
burned the stolen vehicle in an attempt to destroy forensic evidence.
The complaint reports that on October 28, 1996, federal authorities
sent a delegation from Brasilia to investigate Nogueira’s murder.
The delegation of federal deputies urged local authorities to
investigate Nogueira’s killing and to prosecute those responsible.
According to the complaint, the Public Prosecutor also visited
Natal and exerted pressure on the Governor of Rio Grande do Norte to
suspend Pinto from his position as Deputy Secretary for Public Security. Continuing efforts to keep Pinto from resuming his post as
Deputy Secretary of Public Security have been made by the Federal Attorney
General for Human Rights.
The complaint notes that despite these visits, federal agents
closed investigations into Nogueira’s murder without naming suspects for
indictment, notwithstanding significant evidence pointing to the
involvement of members of the Golden Boys in the crime.
The complaint alleges that one of the primary suspects in
Nogueira’s murder is civil police officer, Jorge Luiz Fernandes.
Federal investigators identified him, but, according to the
petition, conducted inadequate inquiries into his involvement in the crime
because they failed to pursue various leads or to question potentially key
The complaint cites as an indicator of impunity and lack of
preventive action by the State, the fact that, although Fernandes was
already under pre-trial detention for his participation in other
homicides, he was released from custody the weekend of Nogueira’s
murder, as was documented by the detention center’s official registry
and Pinto’s statement. Judicial authorities in Natal permitted Fernandes
to make conjugal visits to his wife, inconsistent with Brazilian law,
which only permits detainees to receive
conjugal visits (not to leave prison for that purpose).
Fernandes also frequently left his place of detention during times
not specified by the judicial order, escorted by Maurílio Pinto de
Medeiros, Jr. and the personal driver of the Deputy Secretary for Public
Security, Medeiros Pinto. While
outside jail, Fernandes and the other Golden Boys allegedly intimidated
and threatened witnesses to prevent them from testifying and reporting
criminal police activity.
IV. POSITIONS OF
Complainants allege that the State is directly responsible for the
murder of Gilson Nogueira due to the involvement of its state agents.
The State failed to suppress routine acts of violence committed by
police agents, thus allowing a climate of impunity to develop.
The State also failed to undertake thorough and meaningful
investigations into Nogueira’s killing, to prosecute those responsible,
and to provide adequate and effective judicial recourse.
The petitioners maintain that the State failed to fulfill its
obligations under the Convention for the following reasons:
It withdrew police protection for Nogueira too soon.
It allowed violent and criminal members of the death squad known as
the Golden Boys to continue in active service in the police, thereby
risking that they would continue to misuse their authority by torturing
and murdering those who, like Nogueira, dared to object to their conduct.
It allowed Jorge Luiz Fernandes regularly to leave the precincts in
which he was detained, knowing that such outings jeopardized the lives of
witnesses of the crimes committed by him and those of others, like
Nogueira, who were trying to have Fernandes tried;
It failed to conduct thorough investigations into police
involvement in the murder of Nogueira; and
It neglected to provide adequate protection for witnesses or
judicial remedy for the victims of police violence and their relatives.
Regarding admissibility, the complainants claim in their original
petition exhaustion of domestic remedies since investigations were closed
before any suspect could be indicted for the crime, and police involvement
in the killing was dismissed without serious consideration.
Federal Police Investigator Gilson Campos neither questioned the
credibility of Fernandes’ alibi, nor did he adequately probe police
involvement into Nogueira’s murder, claiming that he lacked sufficient
resources to conduct thorough investigations.
On June 19, 1997, after seven months of investigations, Campos and
the local prosecutor recommended that Judge Talita de Borba Maranhao e
Silva shelve the case. As a
result, no formal charges were brought and police investigations were
The petitioners contend that the shelving of the case constitutes a
final judgment since under Brazilian law, once a case has been shelved (arquivado)
proceedings may only be reopened if new facts are found, and petitioners
are not authorized to reopen cases that have been shelved.
The petitioners assert in that original petition that although the
decision to shelve a case is not necessarily final, for purposes of
Article 46(1)(b), the decision may be considered a “final judgement”
for admitting a petition seeking recourse for violations of the
Convention. Since the
petition was filed within six months of the shelving date, the petitioners
contend that it satisfies the requirements of Regulation 46.
The petitioners request that the Commission find that the State of
Brazil violated Articles 4 (right to life); 8 (right to a fair trial); and
25 (right to judicial protection) in conjunction with Article 1(1)
(obligation to respect rights) of the Convention and recommend that the
State: 1) reopen the
investigation into the death of Gilson Nogueira, conducting thorough and
meaningful inquiries into police involvement, particularly that of Jorge
Luiz Fernandes; 2) prosecute to the fullest extent of the law those found
directly and indirectly responsible; 3) provide protection for individuals
willing to testify against police and state agents; and 4) pay reparations
to Gilson Nogueira’s family.
In regard to Deputy Secretary of Security, Pinto, the petitioners
request that the Commission recommend that the State: 1) investigate his background, expose his involvement in
criminal activities, and prosecute him in accordance with Brazilian law;
2) remove him from his post as head of the Special Arrests Precinct (Delegácia
de Capturas); and 3) suspend him from the police force.
The petitioners also request that the Commission recommend that the
State: 1) monitor the independence and the integrity of the judiciary; 2)
support efforts by the State Prosecutors’ Office to prosecute and try
local police; 3) immediately suspend local police officers from duty for
their involvement in criminal activities and reverse judicial orders
allowing Jorge Luiz Fernandes to leave his place of detention on a regular
basis; and 4) clarify and strengthen the power of the Federal Government
in disputes with state authorities.
On August 5, 2000, the petitioners provided updated information on
the investigation and criminal proceedings. According to the information
provided, one of the current petitioners, James Cavallaro, at that time
Director of the Human Rights Watch office in Brazil and persons filming
documentaries for the British Broadcasting Corporation were able to meet a
former policeman in Río Grande do Norte.
This former police officer (whose name they do not disclose for
security reasons and whom they call “Luis”) provided them with
information on policemen and civil servants in the Secretariat of Public
Security who, he said, had taken part in actions attributed to the Golden
Boys, and with whom he had worked as a police agent for several years.
The information provided states that Luis told them of the
existence of a place about 10 to 15 kilometers outside Natal, where the
bodies of the victims of the “White Hand” and “Golden Boys” death
squads were buried. Luis also provided details of the conspiracy to kill
attorney Gilson Nogueira and of his actual murder.
According to Luis, four members of the death squad (two from each
subdivision of “Golden Boys”) took part in the murder led by the
Deputy Secretary of Defense Maurilio Pinto de Medeiros.
The four that took part, according to Luis, were Maurilio Pinto
Jr., Otávio Ernesto, Jorge Luis Fernandes (alias “The Smotherer”) and
policeman Admilson Fernandez.
The then Director of Human Rights Watch (HRW) and the BBC reporters
apparently met Luis on several occasions, with each encounter yielding
more information as to the pattern of the killings and location of the
clandestine graveyard. Luis
also gave the names of the victims. The BBC and HRW professionals checked
those names in local newspaper archives and confirmed that several of them
were dead or had disappeared. The BBC reporters filmed one of the
interviews in which Luis provided extensive information, and,
specifically, details of Gilson Nogueira’s assassination.
According to this information provided by the petitioners, the
Human Rights Watch and BBC staff contacted investigate reporter Caco
Barcellos of the Globo television network, who in turn hand the
information over to the Federal Police authorities in Brasilia. Armed with
the data on the existence of a clandestine burial place, together with the
information on the death of Gilson Nogueira, the Federal Police obtained a
warrant to search the property where the bodies had allegedly been
disposed of. The plot of land
belonged to former civil police officer Otavio Ernesto.
On November 16, 1998, Federal Police agents entered the premises
owned by Otavio Ernesto pursuant to the warrant, accompanied by Globo
network and BBC journalists and Human Rights Watch staff.
After a morning spent searching in vain for the bodies, the police
decided to suspend the search. The
petitioners maintain that with the (archeological) search method employed
it would have taken 20 days to comb the area completely. During their
search, the police found weapons and arrested Otavio Ernesto for illegal
possession of firearms. A few
days later Otavio Ernesto was released.
The authorities in charge of the investigation decided to conduct a
laboratory test to see whether the weapons seized matched the deflagrated
bullet shells found at the site where Gilson Nogueira was killed.
The ballistic analyses showed conclusively that they belonged to
one of those weapons. On that ground, and on the basis of the Luis
interview, the Government Attorney (Promotor de la Justicia) indicted Otavio Ernesto and ordered his
arrest. As this report was written no date had been set for his trial.
According to this same information, in April 1999 Judge Patricia
Gondim Moreira Pereira summoned James Cavallaro, Director of HRW, to
testify and in his statement he told her the names of the policemen and
civilians who, according to Luis, took part in the murder of Gilson
Nogueira, together with details of the conspiracy and assassination,
including Luis’ statement that Maurilio Pinto de Medeiros had
coordinated the murder.
The next day, James Cavallaro gave an interview to the local
newspaper in Natal (Diario de Natal),
in which he repeated the information he had given the judge. As a result of that interview, Maurilio Pinto de Medeiros
filed a civil action against Cavallaro, demanding payment of damages. He
also filed a criminal accusation with the Office of the Public Prosecutor,
which admitted it and opened a case for libel, in which evidence had
already been heard on August 4, 2000.
This additional information was transmitted to the State on August
30, 2000, with a request that it reply within 30 days. No reply from the
State has been received.
Position of the State
The State has not contested the facts alleged in the petition.
However, in its succinct reply, the State indicated that there is evidence
of criminal activity in the case of Gilson Nogueira, as well as traces of
evidence of the perpetrator, and the case has been reopened with an
accusatory statement (“pronuncia”,
indiciamiento) that has been appealed by the public prosecutor.
See footnote 1 for the full text of the reply. The State has not
replied regarding the additional information it was sent on August 30,
Request for precautionary measures related to the case
On November 8, 1996, the Commission received a request for
precautionary measures to protect various judicial authorities and human
rights defenders in Río Grande do Norte allegedly on a death list drawn
up by the “Golden Boys” because of their opposition to the death
squad’s activities and their denunciations in connection with the murder
of Gilson de Nogueira, the month before.
The applicants cited, for the Commission’s information, a list of
31 instances of repression, murder, and torture by police that they
attributed to the “Golden Boys” under the leadership of the Deputy
Secretary for Public Security.
The Commission informed the Government of this denunciation on
November 13, 1996 and asked it to comment.
The Commission received no answer to this request. However, on
December 17, the petitioners reported that the Federal Minister of Justice
and the Chair of the Council for the Defense of the Individual had formed
a committee to investigate the situation in Río Grande do Norte, but that
the resolution concerned did not contemplate providing protection to the
people on the hit list.
On December 19, 2000, pursuant to Article 29(2) of its Regulations,
the Commission decided to request precautionary measures to protect that
list of threatened persons, which included the State Attorney General (Procurador
General de Justicia del Estado), the Prosecutor (Procurador
de Justicia), five justice outreach workers (promotores
de justicia) and a congressman; as well as two human rights defenders
at the Center for Human Rights and Popular Memory.
In April 1997, the Commission was notified that one of these
persons resigned from his post in the Chamber of Deputies due to the lack
of security in his work environment. It was also told that no security
measures had been adopted and that there had been an attack on the home of
one of the human rights defenders, Dr. Roberto Monte. Moreover, the Deputy
Secretary of Public Security, Maurilio Pinto de Medeiros, who had been
denounced as the commander of the “Golden Boys” death squad, had been
reinstated in the post from which he had been temporarily suspended.
The Commission received further information on May 19 and October
16, 1998, and on April 19, 1999, updating the information on the judicial
proceeding related to the events that gave rise to the request for
precautionary measures. That
information showed and described the still dangerous situation in Río
Grande do Norte. The
information referred to the discovery of new evidence regarding the
activities of the “Golden Boys” and mentioned that several public and
private human rights defenders had had to leave Río Grande do Norte for
In each of these cases, the information was transmitted to the
Government within the process of requesting precautionary measures. No
reply from the State has been received.
V. ANALYSIS OF JURISDICTION AND
A. Competence Ratione
Materiae, Ratione Tempori,
Ratione Personae and Ratione
Loci of the Commission
The Commission has
jurisdiction ratione materiae (over the subject matter), ratione
loci (over the place), and ratione tempori (by reason of time)
since the case concerns rights protected by the Convention under Articles
4, 8, 25, and 1, and the alleged violation of those rights that occurred
in Brazil on October 20, 1996, subsequent to Brazil’s ratification of
the Convention on September 25, 1992.
The Commission has jurisdiction ratione personae (over the
person). Regarding its passive ratione personae competence, the
petitioners claim that the violations were committed by government
officials of Brazil, a member State.
Article 1(1) of the Convention implies that any impairment of
rights guaranteed by the Convention, which can be attributed under the
rules of international law to the action or omission of any public
authority, constitutes an act imputable to the State.
Under Article 28 of the Convention, in the case of a federal state,
such as Brazil, the national government is responsible internationally for
actions of the agents of entities forming the federation.
Regarding its active ratione personae competence, Regulation 26(1)
provides that “[a]ny person or group of persons or nongovernmental
entity legally recognized in one or more of the member states of the
Organization may submit petitions to the Commission, on one’s own behalf
or on behalf of third persons.” Therefore,
the nongovernmental organizations, CDHMP, HHRP and GIHRLS, have standing
to petition on behalf of Nogueira.
Exhaustion of Domestic Remedies
The rule contained in Article 46(1)(a) of the Convention, requiring
that any remedy offered by domestic law first be pursued and exhausted,
stipulates that the substance of all petitions brought before the
Commission must have first been heard by the domestic courts. This rule
allows states to resolve disputes under their own legal systems before
facing international proceedings. The
petitioner notes that inquiries into Nogueira’s death were closed and
the case was shelved (arquivado).
According to Brazilian law, once a case has been shelved, it may
only be reopened if new facts are found.
Therefore, the Commission must analyze:
a) whether the State has invoked this exception and did so on time;
and alternatively b) if the new facts have a bearing on the admissibility
of the case.
In its only reply, the State does not invoke the non-exhaustion of
domestic remedies objection. According to Article 46(1)(a) of the
Convention, the remedies under domestic law must have been exhausted for a
petition to be admitted by the Commission. As the Inter-American Court has
pointed out, this is a rule that can be waived by the State either
expressly or by implication and to be timely it must be invoked at an
early stage of the proceedings, failing which the State may be presumed to
have tacitly waived this requirement.
The Commission considers that the State’s silence in this
case constitutes a tacit waiver of the right to invoke this objection and
relieves the Commission of the need to continue to consider the question
of compliance. The Commission therefore declares the case admissible with
respect to this requirement.
In addition to the above, and even had the Commission not
recognized a tacit waiver by the State of its right to timely objection to
nonexhaustion of the domestic remedies requirement, the Commission
considers that the exceptions stipulated in Article 46(2)(a)(b) and (c) of
the Convention would have applied. They
allow for admission of cases when: 1) the domestic legislation of the
state concerned does not afford due process of law for the protection of
the right or rights that have allegedly been violated; and 2) the party
alleging violation of his rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them.
The Commission reached on the basis of the following facts.
It is an undisputed fact that the State shelved the case and ended
the investigations seven months after the death of Nogueira, without
having made any serious effort to identify and try the person or persons
It is also an undisputed fact that the reopening of the proceedings
mentioned by the State in its note of June 2000 refers to only one of
those accused of the murder of Gilson Nogueira, and that that reopening
was not due to any urge to investigate and indict on the part of the State
but a result of pressure exerted by human rights defenders and local and
foreign journalists, who managed to persuade a former policeman involved
in the activities of the “Golden Boys” death squad to tell them about
those activities and the plot to murder Gilson Nogueira, together with the
names of the perpetrators. This
information was corroborated to the extent that the weapon used in the
crime was found on a plot belonging to one of the policemen accused. Only
the actions undertaken by these human rights defenders proved capable of
provoking a response from the Federal Police (not the state police, nor
military court prosecutors) and achieving a partial reopening of the case.
It is also an undisputed fact that the reopening of proceedings
concerned only one of the five policemen involved, since the
investigations focused exclusively on the responsibility of the civilian
policeman, Otavio Ernesto. The State has not conducted any other serious
and effective inquiry into the criminal association of the other policemen
and civilian authorities accused along with the policeman currently on
trial, despite the fact that human rights defenders have submitted
evidence linking them to the crime.
There has been unwarranted delay in moving ahead with this case,
primarily due to the lack of a proper investigation, which led to its
being shelved, and then due to the absence of investigations or
proceedings against the majority of those responsible. The Commission has
been told that, as of the date of this report, no date has yet been set
for the trial of the only accused.
The Commission considers that the exhaustion of domestic remedies
requirement is subject, under Article 46(2)(1), to the existence of
effective domestic remedies. In
the Fairén Garbi and Solís Corrales case, the Court maintained that the
merely theoretical existence of legal remedies is not sufficient for this
objection to be invoked: they have to be effective, They are not effective
when “formal requirements make them inapplicable in practice; the
authorities against whom they were brought simply ignored them, or because
attorneys and judges were threatened and intimidated by those
As emerges from the information in the petition, the additional
information provided, and in the various different requests for
precautionary measures, none of which has been disputed by the State,
inquiries by the military courts, the state police, the Attorney
General’s office, and the judicial authorities have been–and in this
case–are still ineffective. The
Commission would again like to point out that it had to ask the State to
take steps to protect senior officials in the Public Prosecutor’s
Office, justice outreach workers, attorneys, and human rights defenders,
all of whom have been threatened and intimidated.
In principle the intimidation would appear to be continuing in the
form of lawsuits against two human rights defense attorneys for alleged
libel offenses, for having repeated to the press the testimony they gave
to the judge in the case.
Article 46(1)(b) of the Convention stipulates that for a petition
to be admissible, it must be submitted to the Commission within six months
of the date on which the petitioner was notified of the final ruling.
The Commission finds in the instant case that the decision to
shelve the case constitutes a final decision for determining the filing
period. Since the petition
was placed before the Commission on December 11, 1997, within six months
from the date the case was shelved (June 19, 1997), the Commission
concludes that this requirement has been met.
In the alternative, since the Commission notes that the petitioners
meet at least one of the exceptions under Article 46(2) of the Convention,
the 6 month filing period does not apply as is stated in Article 46(2).
Duplication of Proceedings and Res
With regard to the requirement in Article 46(1)(c) of the
Convention, stating that the petition must not be pending settlement in
any other international proceeding, the Commission has received no
information indicating that any such situation exists. The Commission
therefore holds that this requirement has been met. In addition, the
Commission also concludes that the requirement set forth in Article 47(d)
has been met, in that this petition is not substantially the same as any
petition already studied by the Commission or ruled on by another
Nature of the Violations
Article 47(b) of the Convention states that the Commission shall
consider inadmissible any petition or communication that “does not state
facts that tend to establish a violation of the rights guaranteed by this
petitioners claim that the State, through its agents, assassinated
Nogueira, violating his right to life (Article 4), and that in failing to
make adequate investigations into the murder, the State violated
Nogueira’s rights of due process (Article 8).
Finally, the petitioners contend that the State has allowed crimes
to go unpunished, fostering a climate of impunity which has lead to human
rights violations, violating the right to judicial protection and the
obligation to respect the rights set forth in the Convention (Article 1). If
proven true, the facts alleged by the petitioners could constitute
violations of rights protected by the Convention. Therefore, the
Commission concludes that this requirement has been met.
concludes that it is competent to take cognizance of this case and that
the petition meets the admissibility requirements under Articles 46 and 47
of the American Convention and Articles 1 and 20 of its Regulations.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare, without prejudging the merits of the instant case, that
this petition is admissible with respect to the alleged facts, and to
Article 4 (right to life); Article 8 (right to a fair trial); and Article
25 (right to judicial protection), in conjunction with Article 1(1)
(obligation to respect rights) of the American Convention.
To transmit this report to the State and to the petitioners.
To place itself at the disposal of the parties concerned with a
view to reaching a friendly settlement, in accordance with Article 48(f)
of the Convention.
To continue processing the case with an analysis of the merits of
To publish this report and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C. on the third day of the month of October, 2000. (Signed): Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
prescribed in Article 19(2)(a) of the Commission’s Regulations,
Member of the Commission Hélio Bicudo, of Brazilian nationality, did
not participate in the discussions or the voting on this case.
With the consent of the other petitioners, the Global Justice Center
joined the petition on August 25, 2000.
The full text of the State’s reply was as follows:
case 11.852 (Gilson Nogueira de Carvalho), I have the honor to inform
Your Excellency that, according to information recently received from
the Office of the Attorney General of the State of Río Grande do
Norte, the investigations into the death of attorney Gilson Nogueira
de Carvalho have reached the arraignment stage, which is tantamount to
the court admitting there is convincing evidence that a crime has been
committed and traces of evidence as to who committed it.
At the same time, given that the opinion of the Office of the
Attorney General differs from that of the court, it will be up to the
Court of Justice of the State of Río Grande do Norte to rule on
In petitions concerning that case, requesting precautionary measures,
complainants mention 31 cases of killings, murders, attacks, and
torture that they attribute to this already accused death squad.
In the investigation carried out by the Office of the Attorney General
and the report on it issued on July 31, 1995, Jorge Luis Fernandes
(alias Jorge Abafador) is registered as charged with the commission,
alone or in association with others, of five homicides, three
attempted murders, and cases of serious bodily harm.
Testimony of Maria Lúcia Costa during proceedings in Processo
No. 5.030/95 pronounced on November 8, 1996, before the Criminal
Court of Rio Grande do Norte and subsequently repeated on October 6,
1995, in the State Legislative Assembly of Rio Grande do Norte before
the President of the Federal Human Rights Commission of the Federal
Chamber of Deputies.
Deposition of Arivone Gonçalves signed by him and his attorney,
Gilson Nogueira and confirmed in an interview between Gonçalves and a
representative for the petitioner.
Equivalent to US$770.00 at the time.
Human Rights Watch/Americas at 97.
Interview of Jeane do Nascimento on August 13, 1997.
In this report the Commission stated that the civil police under
investigation formed part of the Golden Boys death squad, an informal
vigilante group tied directly to the Deputy Secretariat for Public
According to the petitioners, Articles 268-273 of the Brazilian Code
of Criminal Procedure allow the victim or the immediate family to
appoint an Assistant to the Prosecution.
The petitioners contend that this is one of the methods used by
human rights organizations and those with sufficient economic
resources to pressure Brazil’s notoriously slow judicial system into
quicker action. This
individual (who may also be the victim) can propose arguments about
the evidence, request questions to be put to witnesses, participate in
the oral debate in the case, and participate in the appeals made by
the public prosecutor’s office or advance his or her own appeals.
The Commission asked the State to take precautionary measures to
protect those threatened persons, as described in this admissibility
report, in the section entitled Request for Precautionary Measures.
In August 2000, the Commission received information, not contradicted
by the Government, that the above-mentioned person was reinstated in
The file contains a copy of the note from the Regular Judge for
application of criminal law, Official Letter 108/96 of October 31,
1996, indicating that Jorge Luiz Fernandes was authorized to leave
prison with a police escort for conjugal visits of six hours each
twice a week. There is
also a note from the Office of the Attorney General of Natal (RN)
accepting the accused’s request for these outings, dated July 31,
Inter-American Court of Human Rights, Velásquez Rodríguez case,
Judgment of July 29, 1988, paragraph 164.
The Commission notes that the General Assembly of the OAS resolved on
June 5, 2000 “To invite the Inter-American Commission on Human
Rights to continue to pay due attention to the situation of human
rights defenders in the Americas” and said it was “concerned over
the persistence in the Americas of situations that directly or
indirectly prevent or hamper the work of individuals, groups, or
organizations working to promote and protect fundamental rights.” [AG/RES.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
Judgment of July 29, 1999, paragraph 164.
Inter-American Court of Human Rights. Godínez
Cruz case. Preliminary
Objections. Judgment of June 26, 1987.
Series C, No. 3, paragraphs 90 and 91 state: 90. Generally
recognized principles of international law indicate, first, that this
is a rule that may be waived, either expressly or by implication, by
the State having the right to invoke it, as this Court has already
recognized (see Viviana Gallardo et al. Judgment
of November 13, 1981, No. G 101/81. Series A, paragraph 26). Second,
the objection asserting the non-exhaustion of domestic remedies, to be
timely, must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed.
Third, the State claiming non-exhaustion has an obligation to prove
that domestic remedies remain to be exhausted and that they are
effective. 91. The record shows that the Government failed to make a
timely objection when the petition was before the Commission and did
not object at any time during the proceedings.
Inter-American Court of Human Rights, Fairén
Garbi and Solís Corrales, Judgment of March 15, 1989. Series C
No. 6, paragraph 102.
Commission has in mind resolution AG/RES. 1711 (XXX-O00) of June 5,
2000 on Human Rights Defenders in the Americas, and similar
resolutions in previous years.