A. Summary
86. According
to the complaint received by the Commission in September 1994, military
police agents Orlando Aparecido Garcia, Edison Donizati, and Waldemar José
de Oliveira Tenório assassinated student Marcos de Assis Ruben, 23, in
March 1988, in the city of São Paulo.
87. The
petitioners report that the above-noted agents had answered a call to
check into the case of a young man who was assaulting a young woman,
intending to rape her. On
arriving in the vicinity of the locale indicated, the agents found Marcos
with a young woman, and, presuming he was the rapist, detained him.
The victim was taken to a park on the outskirts of São Paulo, and
killed with five gunshot wounds to the head.
88. In
May 1988, the above-mentioned agents were accused of the aggravated
homicide of Marcos de Assis Ruben and seven other persons, victims of
crimes that occurred in similar circumstances.
At the time the complaint was lodged, the trial was pending a final
decision from the Third Instance of Military Justice of São Paulo.
89. The
victim’s parents initiated an action for compensation against the state,
which was declared inadmissible by the Eighth Court (8a. Vara da Fazenda Pública) of
the state of São Paulo, and affirmed on appeal.
B.
Processing before the Commission
90. The
complaint in this case was received by the Commission in September 1994.
The Brazilian Government was informed of the same on December 20,
1994, and submitted its answer on June 15, 1995.
After this first response from the Brazilian State, the petitioner
again submitted information to which the Government of Brazil, despite
repeated requests, failed to respond. In 1998, at its 98th session, the Commission approved the
admissibility report for case 11.417, which was published in the Annual
Report for 1997.
C.
Position of the parties
91. On
submitting the complaint in September 1994, the petitioner alleged that
Marcos had been murdered in cold blood and arbitrarily by military police
agents. The same agents had
been accused of the death of Marcos and seven other persons assassinated
in very similar circumstances. Nonetheless,
despite the grave acts alleged against the accused, and despite the fact
that seven years had elapsed since the date of the offense, the criminal
inquiry has yet to conclude. In
this regard, the petitioner asserts violations of Articles XVII and XXIV
of the American Declaration and Articles 8 and 25 of the American
Convention. Later, the petitioner alleged that eight years after the
facts, the date for putting the accused on trial had not yet been set.
92. The
Government, for its part, in June 1995 answered that it admitted the
criminal inquiry phase had not been carried out, reporting that the date
of June 5, 1995, had been set for hearing defense testimony. At no time, however, did the Government of Brazil deny the
facts alleged by the petitioners, nor did it comment on the merits of the
case.
D.
The Commission’s analysis
1.
Right to life
93. Of
the evidence collected, the Commission reaches the conclusion that the
military police agents accused extrajudicially executed Marcos de Assis
Ruben. The Court of Justice
of São Paulo state so indicated, in ruling on the respective action for
compensation, when it concluded that the military police agents involved
in the death of Marcos had abused their authority.
94. In
the large number of inquiries initiated against police agents Orlando
Aparecido Garcia, Edison Donizeti, and Waldemar José de Oliveira Tenório—in
each case concluding that they were guilty in relation to the death of
eight persons--various items of evidence were introduced of the excessive
violence of their action. The
officials who participated in the investigation and the Public Ministry
were fully convinced of the liability of the accused, indeed their abusive
acts were even recognized by the Appeals Court of the state of São Paulo,
as appears from the ruling in the action for compensation.
95. The
wounds--five gunshot wounds to the victim’s head--also attest to his
execution, with no possibility whatsoever of defending himself. The witness statements also contribute to this conclusion.
96. Of
all the evidence presented, the Commission reaches the conclusion that the
Brazilian State denied the right to life of Marcos de Assis Ruben,
enshrined at Article I of the American Declaration.
2.
Procedural guarantees and due process of law
97. Eight
years after the complaint was filed, the criminal proceeding was still
awaiting a trial date. In 1995, the Brazilian Government admitted that it
had not even concluded the criminal inquiry stage, seven years after the
facts.
98. The
excessive delay in the procedures is contrary to the standards required
for effective process. The
time elapsed was unreasonable, failing to respect the procedural
guarantees and the principle of due process of law guaranteed in the
American Convention. The
Commission considers that the time elapsed without reaching a final
decision on the case is excessive. Therefore,
it understands that the Brazilian State is responsible for violating
Articles 8 and 25 of the American Convention.
Case 11.412 (Wanderlei
Galati)
A.
Summary
99. According
to the complaint presented to the Commission in September 1994, Wanderlei
Galati, a mechanic 28 years of age, was killed after being beaten
repeatedly with the butt of a revolver by military police agent Ademar
Cavalcante Dourado, on August 26, 1983, in the city of São Paulo.
100. Mr. Galati
was allegedly killed after his car collided with the vehicle of the
above-named police agent. According
to the complaint, even though Mr. Galati accepted liability for the
accident and agreed to pay compensation for the damages caused, he was
assaulted and killed by Ademar Cavalcante Dourado.
101. On December
2, 1983, the military police agent was accused before the Military Justice
of São Paulo state. The
verdict was handed down on October 15, 1991; Ademar Cavalcante Dourado was
acquitted for insufficient evidence.
Later, despite his crime, he was promoted in his police career.
102. The
victim’s mother filed an action for compensation for moral and material
damages against the state of São Paulo; it was the subject of a judgment
by the Second Court (2a Vara da
Fazenda Pública) of the
state of São Paulo, and affirmed by the Court of Appeals.
B.
Processing before the Commission
103. The complaint
was received by the Commission in September 1994 and on December 13, 1994,
it was forwarded to the Government of Brazil, which answered in June 1995.
Later, the petitioner and the Government submitted information. On
April 25, 1996, the Commission reiterated its request for final
observations to the Government.
104. On July 30,
1996, the Commission informed the petitioner that with the final statement
by the Government, the procedure as per the Regulations was concluded.
In 1998, during its 98th session, the Commission approved the
admissibility report in case 11.417, which was published in the Annual
Report for 1997.
C.
Position of the parties
105. The
petitioner alleged that Wanderlei Galati had been summarily executed by a
military police sergeant who was a traffic supervisor, simply for having
caused slight damage to his vehicle.
The victim mistakenly entered an avenue heading the wrong way, and
scraped the police car that had blocked the road to stop him. The police agent reacted violently. The policeman identified himself as such, had Wanderlei get
out of his car, and attacked him, beating him in the head repeatedly with
the butt of his police-issue weapon, while Wanderlei and those who were
with him begged “for the love of God” that he not hit him any more. Meanwhile, he threatened the persons with him not to get out
of the vehicle to assist him. An ambulance passing by picked up the
victim, but the policeman who beat him did not allow the driver to take
him to the hospital until police reinforcements arrived.
Finally, upon arrival at the hospital, he was pronounced dead.
The complaint presented to the Commission in 1994 argues that five
years after the incident, testimony had yet to be taken from the witnesses
for the accusing party, as the hearing had been postponed several times
and for various reasons, including the promotion of the accused into the
officer corps of the police during the period when there were hearings for
taking witness testimony.
106. According to
the petitioner, when a verdict was finally handed down on October 15,
1991, the accused was acquitted for insufficiency of evidence, despite the
many eyewitness statements. The acquittal, in turn, was signed and
published only three years after it was handed down, which made it
impossible for the Public Ministry to file appeals, with the clear intent
of evading punishment. So it
took eight years to conclude the first part of the proceeding, and 12
years after the death of Wanderlei Galati, there had been no final
decision regarding the circumstances of the case.
107. The
petitioner argued that the unjustified partiality and sluggishness of
justice in the case violated Articles XVIII and XXIV of the American
Declaration and Articles 8(1) and 25 of the American Convention.
108. In October
1996, the petitioner reported that he could not get information from the
military justice.
109. In its
response, the Brazilian Government reported that proceedings had been
opened before the military courts to investigate the death of Wanderlei
Galati, in which the accused was military police agent Ademar Cavalcante
Dourado. Later, he reported
that the accused in that proceeding had been acquitted unanimously, and
that the case is now in the hands of the Public Ministry, to present
reasons for an appeal, and that the action for compensation had been the
subject of a final judgment, as a monthly pension was awarded
Wanderlei’s mother until he would have turned 65 years of age.
Nonetheless, the facts narrated in the complaint were not denied nor were
the merits of the case contested at any time.
D.
The Commission’s analysis
1.
The right to life
110. The various
witnesses who gave testimony in the proceedings confirm that after the
collision Wanderlei offered to pay for the damage caused promptly,
without in any way acting aggressively towards the agent accused.
Ademar Cavalcante Dourado, in contrast, beat Wanderlei many times,
to the point of causing his death.
111. The
declarations by the police agent, who was heard during the inquiry and
later at trial, suggest how shaky his assertion is. First, he said that
the victim injured himself, in an accidental fall upon getting out of his
car; then, that the injuries had been the result of the collision.
112. The other
persons who were in the car are unanimous and offer consistent testimony
that the assault on Wanderlei was gratuitous and totally disproportionate.
113. In addition
is the incontestable fact that Wanderlei’s death was due to contusions
on the head made by the police-issue weapon, as shown by the medical
examiner’s report. The detailed description of the lesions is totally
incompatible with the injuries that normally occur in traffic accidents,
and this was stated by the Court of Justice of the state in a civil action
for compensation, considering state responsibility to arise from the
authority vested in the accused and the nature of the crime.
114. In the face
of such evidence, the Commission must conclude that Wanderlei Galati was
the victim of an intentional homicide, the result of disproportionate acts
with no motivation by military police agent Ademar Cavalcante Dourado
involving state responsibility, both because of the authority vested in
the criminal, his identification as a police agent vis-a-vis the victim
and the persons accompanying him at the time of the act, and the orders he
gave them and the ambulance driver, using the authority of his status as a
police agent, and his police-issue weapon, to beat the victim to death by
successive blows to the head. Accordingly,
the Brazilian State has violated the right provided for in Article I of
the American Declaration.
2.
Procedural guarantees and due process of law
115. All of the
evidence collected during the investigations and in the course of the
judicial proceeding sufficed to convince the marshal and the prosecutor
who participated in the criminal action, as well as the judge and the
court that decided the compensation action.
The Commission also understands that the indicia presented are
grounds that show the materiality and perpetrator of the offense committed
by Ademar Cavalcante Dourado.
116. Yet despite
the clear evidence presented at trial, the military courts of the state of
São Paulo acquitted Ademar Cavalcante Dourado for insufficient evidence.
Not only that, they also clearly and blatantly delayed the
proceeding to the point that it failed to publish the acquittal at trial
to prevent it from being appealed, and with the risk that the statute of
limitations would run. And throughout, the criminal was not only free, but was given
a promotion by the military police.
117. The
Commission understands that the statements and expert evidence presented
sufficed for a decision on the merits, a decision to which Wanderlei’s
family members had a right. In this regard, the Brazilian State did not
guarantee the victims access to an effective judicial remedy or to a
proceeding with respect for the internationally recognized standards.
Having denied them that right, the Government of Brazil violated
Articles 8 and 25 of the American Convention.
Case 11.415 (Carlos Eduardo Gomes
Ribeiro)
A. Summary
118. According to
the complaint presented in September 1994, on May 3, 1989, Carlos Eduardo
Gomes Ribeiro, 19, was alleged to have been assaulted and wounded by
military police agents Donizetti Aparecido Bezerra da Silva, Dorival
Bernardo de Senna, Marcos Aparecido Correa Cesar, and Mauro Garofo.
119. According to
the complaint, Cláudio was with two other friends when they were
approached by military police agents who, under the pretext of searching
them, assaulted them physically and psychologically.
It appears in the record that the three youths were forced into a
vehicle in which they suffered new acts of brutality and taken to the
police station, where they were warned that they should say nothing of
what happened. Carlos Eduardo
was the only one who came forth to report what had happened, which he did
immediately.
120. On July 6,
1990, the police agents were accused by the office of the prosecutor. The
hearings were put off time and again, and set for very long afterwards,
such that on July 29, 1994, without having resolved the case, the second
instance of Military Justice decreed that the statute of limitations had
run out on the criminal action by the State, thereby extinguishing all
possibility of punishing the accused.
121. On April 13,
1994, the victim filed a compensation action against the State, which was
referred to the Seventh Court (7a
Vara da Fazenda Pública) of the state of São Paulo.
As of the date of the complaint, the Seventh Court had not even
been summoned in that action, and a decision was being awaited as to
whether the victim would be afforded free legal assistance.
B.
Processing before the Commission
122. The complaint
was received in September 1994. The pertinent parts of the complaint were
forwarded to the Brazilian State in December 1994, and it answered in June
1995. In September and
November 1995, and in April and September 1996, the Commission requested
additional information from the Government, but received no reply.
The case was later admitted in 1998, as appears in admissibility
report 17/98.
C.
Position of the parties
123. The
petitioner alleged in the complaint that Carlos Eduardo was arbitrarily
attacked and detained by military police agents, and that the statute of
limitations had run on the respective criminal proceeding due to the
inattention of the authorities acting in the case. Petitioner asserted that the running of the statute of
limitations on criminal proceedings in the military courts is common in
similar cases of bodily injury, due to the negligent sluggishness with
which they are processed. Finally,
the petitioner declared that the extinction of the criminal action in the
case was the responsibility of the military courts, which did not perform
their function, thereby guaranteeing impunity for the persons
responsible for violating the victim’s fundamental rights.
124. The
Government, in its reply, reaffirmed the information on the proceeding
presented by the petitioner, and merely confirmed that the criminal action
had extinguished with respect to the accused.
Nonetheless, the State at no time addressed the issue of whether a
violation of the victims’ physical integrity and the judicial guarantees
had been committed, as alleged by petitioners.
D.
The Commission’s analysis
1.
Right to physical integrity
125. The
examination of the corpus delicto confirmed the injuries suffered
by the victim. All the witnesses heard in the proceedings who had
witnessed the events allege that indeed the accused police agent made
excessive and unnecessary use of physical force against the victim, who
had not committed nor was about to commit any crime.
The defense did not present a single witness to support the
agents’ version as to the motive for approaching them; therefore,
detaining the youths was unjustified.
126. This
information led the Commission to the conclusion that the military police
agents of São Paulo state violated the physical and psychological
integrity of Carlos Eduardo Gomes Ribeiro, triggering state responsibility
for violating Article I of the American Declaration.
2.
Procedural guarantees and due process of law
127. The
information presented shows that the judicial process was slow and that
this was due to the inefficiency of the Brazilian judiciary.
Contributing to the delay was the repeated postponement of
hearings, and the leniency of police witnesses in coming forth to give
testimony. The questioning of
the accused did not happen until two years after the facts, and the
witnesses were heard four years after the crime.
128. These
attitudes resulted in the running of the statute of limitations on the
criminal action of the State, and the consequent extinction of the
possibility of punishing the accused.
This being the case, the victim was denied the right to the trial,
judgment, and sentencing of those who offended him.
Carlos Eduardo was not guaranteed a prompt and effective process
for determining his rights. In
this regard, the Brazilian State violated Articles 8 and 25 of the
American Convention.
3.
Offer of friendly settlement
129. On several
occasions, the Commission made itself available to the State and the
petitioners in the various cases to initiate the friendly settlement
process provided for in Articles 48 and 49 of the American Convention,
without having received an affirmative response from the parties. That
offer was reiterated in joint admissibility report 17/98, once again
granting a period of 30 days, without receiving any response.
III. CONSIDERATIONS ON THE MERITS COMMON TO
THE EIGHT CASES
130. In the cases
described above, the petitioners allege violations of Articles I (right to
life, liberty, security, and integrity of the person), XVIII (right to
justice), and XXIV (right to petition) of the Declaration, and Articles 8
(right to a fair trial) and 25 (judicial protection) of the American
Convention, in conjunction with Article 1(1) of the same (obligation to
ensure and respect the rights established in the Convention).
131. In all the
complaints, persons who did not commit nor were involved in committing any
crime were found to have been approached aggressively, without any motive,
by military police agents. The
information also indicates that those persons were killed or suffered
grievous injuries as a result of the actions of those public agents, which
were at least disproportionate.
132. In its
statements, the Government of Brazil did not refute the facts presented by
the petitioners. This being
the case, the descriptions presented by the petitioners are considered by
the Commission to be true and unchallenged, in addition to coinciding with
the rest of the evidence before the Commission, including copies of
domestic judicial proceedings.
133. All the cases
occurred in the city of São Paulo, and involved acts by agents of the
Military Police of São Paulo state.
The facts, in addition to denoting the violence with which the
agents of that police force act, demonstrate the impunity that stems from
the delayed, partial, and ineffective action of the military justice
system, which at the time was responsible for investigating, prosecuting,
and imposing punishment for the crimes committed by police.
134. In the view
of the Commission, based on the analysis of the information available on
the issues analyzed, one can only reach the conclusions set out below.
As the Commission already indicated in its admissibility reports on
these cases,[3] it is competent to hear them because they address
alleged violations of the rights recognized in the Declaration, pursuant
to Articles 26 and 51 of its Regulations,[4]
and with respect to those recognized in the Convention, for violations or
the continuing refusal to recognize rights after its ratification by
Brazil, in particular Articles 8 and 25 (right to due process of law and
judicial guarantees) in relation to Article 1(1) of the Convention.
Responsibility of the State
in relation to the acts or omissions of its organs, agents, and member
states of the Federation
135. Article 1(1)
of the Convention clearly establishes the obligation of the state to
respect the rights and freedoms recognized in it and to ensure the full
exercise thereof, such that any violation of the rights recognized in the
Convention that may be attributed, according to the norms of international
law, to the act or omission of a public authority, is an act giving rise
to state responsibility.[5]
The American Declaration sets forth at Article XVIII the right to judicial
guarantees for protection against acts of the authority, and indicates in
its preamble that the legal and political institutions of the States have
as their main purpose the protection of human rights.}
136. According to
Article 28 of the Convention, when a State party is constituted as a
federal state, as is Brazil, the federal government shall answer,
internationally, for the acts of the entities that make up the Federation. The cases considered here involve alleged human rights
violations by agents of the military police of the state of São Paulo.
Right to life, liberty,
security, and physical integrity (Article I of the Declaration)
137. Article I of
the Declaration provides: “Every
human being has the right to life, liberty and the security of his
person.” Victims Aluísio
Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis
Ruben, and Wanderlei Galati, all of them, under 30 years of age at the
time of their death, were workers or students who were approached in the
course of their routine activities and extrajudicially executed by
military police agents. Cláudio
Aparecido de Moraes, Carlos Eduardo Gomes Ribeiro, Celso Bonfim de Lima,
and Marcos Almeida Ferreira suffered attacks on their lives causing injury
to their personal integrity. Those violations occurred in various
incidents from March 1982 to August 1989.
138. The
Commission must consider whether the action of the public safety officers
that cost the life or physical integrity of the victims was taken out of a
need to prevent a greater harm, or involved legitimate self-defense.
In so doing, consideration was given[6]
to the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials, adopted by the United Nations, which clearly define
those cases in which the use of such force is legitimate.[7] Although the State has not invoked this argument
in its defense, the Commission understands that it should make reference
to it.
139. In none of
the eight cases in consideration is there any evidence supporting the
acceptability of force in the terms of the principles mentioned, nor any
evidence that the youths shot at were armed or constituted a threat of
death to the agents or other persons. To the contrary, in the cases in
question there is testimony that the victims had not even committed nor
were about to commit any illegal act.
This indicates that the police action, more than disproportionate,
was unjustified.
140. The data
provided indicate that in all the cases in which the bodies were not
hidden, the police agents simulated direct confrontations between the
victims and the police force, even alleging that there had been exchanges
of gunfire to cover up their own gratuitous acts of violence. One can
observe that in eight cases examined here, five persons were killed and
three were injured, a chilling balance even in confrontations, which in
these cases did not occur, as has been proven in court.
This number is in agreement with investigations done in Brazil,
cited by the Commission in its general reports on Brazil, that indicate
that in cases of confrontation between police agents and civilians, the
number of deaths is always far greater than the number of wounded, an
indication that in general the Brazilian police “shoot to kill,” and
not just to subdue suspects.
141. The agents
accused allege that they had mistaken the victims, in several instances,
for persons accused or wanted for committing criminal acts, to justify
their own action. Nonetheless,
even were this the case, the evidence shows the most absolute disdain for
the presumption of innocence, and that the victims were not even able to
defend themselves in any way, nor were they taken to a police station for
the appropriate processing; and the testimony and medical examiner’s
opinions verify summary executions or summary violations to integrity.
142. The cases
examined here are extremely grave, as it was shown that the investigations
concluded, as indicated, that there were no confrontations between the
youths and the police agents. The
victims were not committing criminal acts, and their deaths occurred for
no apparent reason (as in the cases of Clarival and Delton) or for
absolutely futile motives (Wanderlei Galati), the victims beings
defenseless, under the control and custody of the police.
The evidence presented indicates the arbitrary nature of the
approach by the police and of the assaults, whether fatal or non-fatal.
143. The
circumstances in which the crimes committed by the police occurred
indicate a general situation of unsuitable, out-of-control, and
undisciplined action on the part of the persons entrusted with maintaining
order and security in the state of São Paulo, and the conscious and
spontaneous practice of acts of brutality.
144. The period
covered by the eight cases analyzed here (1982-1989) demonstrates that
situation of violence. It was
found that in one of these cases--that of Marcos de Assis Ruben--the
police agents accused were alleged at the same time to be responsible for
the killings of seven other persons, in similar circumstances.
These data confirm the conclusion that the arbitrary detention and
execution by the military police agents was a common practice in the state
of São Paulo during that period.
145. The
Commission has spoken out in previous cases against such practices, which
constitute one of the most abominable systematic violations of the right
to life and personal integrity, and entails breach by the State of its
obligation to ensure the rights of its citizens.
On analyzing these cases, the Commission considered as key grounds
for reaching a decision the statements and evidence that came out in the
respective judicial proceedings. The
Commission recalls the general situation to make it clear that these are
not isolated cases or anomalies, but rather examples of a systematic
attitude adopted at the time by certain police agents.[8]
146. On the basis
of the statements and evidence that appear in the case files and which
were described briefly, the Commission considers that there is clear and
convincing evidence as a firm basis for concluding that police agents of São
Paulo violated the right to life of Aluísio Cavalcanti, Clarival Xavier
Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, Wanderlei Galati,
and Cláudio Aparecido de Moraes, and the right to personal integrity of
Carlos Eduardo Gomes Ribeiro, Celso Bonfim de Lima, and Marcos Almeida
Ferreira, which constitute violations of Article I of the Declaration by
the State.
Right to a fair trial and
judicial protection (Articles 8 and 25)
147. Brazil
deposited its instrument of accession to the American Convention on
September 25, 1992. The
judicial proceedings related to the cases analyzed here took place prior
to that date, and make reference to crimes committed in the late 1980s. Nonetheless, the judicial proceedings continued for several
years after entry into force of the Convention for Brazil, and in some
cases they still continue. A
situation such as this, that starts out as a violation of Article XVIII of
the Declaration, and then fits within the violations that are the subject
of Articles 8 and 25 of the Convention, has repeatedly been interpreted by
the Commission as a continuing violation.
Based on this understanding, the Commission considers that the
guarantees provided for therein apply to the proceedings pending in each
member state as of the date of entry into force of the Convention for that
member state. As clarified in
its combined admissibility report on the eight cases analyzed here, the
Commission is competent, in all of them, to decide on violations of
Articles 8 and 25 of the American Convention.[9]
148. Article XVIII
of the Declaration states that:
Every person may resort to the courts to ensure respect
for his legal rights. There should likewise be available to him a simple,
brief procedure whereby the courts will protect him from acts of authority
that, to his prejudice, violate any fundamental constitutional rights.
Along the same lines, Articles 8 and 25 of the Convention give all
persons the right to access to judicial remedies when their rights are
violated, and to be heard by a competent authority or court. Article 25 of
the Convention provides:
Everyone has the right to simple and prompt recourse,
or any other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized by
the constitution or laws of the state concerned or by this Convention,
even though such violation may have been committed by persons acting in
the course of their official duties.
The jurisdiction of the
military justice system
149. In all of
these cases the military justice system has been involved in the
investigation, indictment, and prosecution.
This happens because, as the Commission noted in its 1997 special
report:
The state military justice system has the authority to
try and judge members of the “military” police accused of committing
crimes, defined as military crimes, against the civilian population. This
jurisdiction is governed by military criminal law (Military Penal Code,
CPM), exclusive to military personnel, which contains substantive penal
standards and constitutes “a set of legal provisions to ensure the
accomplishment of the main purposes of military institutions, whose
primary objective is the defense of the nation.” In this jurisdiction,
“rank and discipline prevail.”[10] It is also regulated by the Code of Military
Penal Procedure (CPPM), which contains formal or procedural provisions.
The new law 9299/96 places under ordinary penal jurisdiction cases of
voluntary crimes against life, but maintains intact the rest of the
jurisdiction of the military justice system with regard to the police.11]
This is a special legal system, with its own principles
and guidelines, in which most of the provisions apply only to military
personnel and civilians who commit crimes against military institutions,
unlike the ordinary penal system, which is applicable to all citizens.[12]
150. The
same jurisdiction lies with respect to the power to bring a public
criminal action and to further the investigation:
As a legacy of its creation under the military regime,
the State Military Public Ministry has jurisdiction to file public
criminal charges before the military courts, and also has, among others,
the power to institute the military police investigation and to exercise
external control over the “military” police activity. This represents,
in the view of the Commission, a critical breakdown in the system of
guarantees of police action, for it wrests from the civilian public
ministry common police control activities (entrusted to the “military”
police), which are precisely the ones to whom are attributed the largest
number of human rights violations.
151. The
Commission indicated in the same special report that this special
jurisdiction for the police came about during the period of military rule
in Brazil, in 1977, by a constitutional amendment (Nº 7, of 1977), and in
its wake the Federal Supreme Court changed its view and considered that
the state-level military justice system had jurisdiction to judge the
“military” police. The
Commission then indicated that:
This fundamental change in the jurisprudence of the
Federal Supreme Court resulted in an increase in the crimes committed by
“military” police with impunity. [Chapter 3, par. 67.]
152. As indicated
at that time:
Military court cases are often delayed for years,[13]
due to the heavy workload,[14]
the scarcity of judges and prosecutors, excessive red tape, delays, etc.
The Commission has found that the courts tend to be indulgent with police
accused of human rights abuses and other criminal offenses, thereby
allowing the guilty to go unpunished.
In this climate of impunity,[15] which breeds violence by the “military”
police corps,[16] the police officers involved in this type of
activity are encouraged to participate in extrajudicial executions, to
abuse detainees, and to engage in other types of criminal activity. The
violence has even spread to the prosecutors who, when they insist on
continuing investigations into the crimes committed by the “military”
police, have been threatened and even subjected to death threats. It is
also not uncommon for witnesses summoned to testify against police
officers on trial to receive intimidating threats.[17]
In a letter addressed to the Commission in 1996, the
Santo Dias Center stated, in this regard:
In military investigations (inquiries), officially
carried out by the organs of military justice, the bias in favor of
incriminated police officers in most cases is so flagrant that it turns
the victims into criminals. It is also very common to intimidate
witnesses, whose court depositions are taken in the presence of the
accused police officers. Under such conditions, it is not surprising that
so many investigations are dismissed on grounds of insufficient
evidence.... If this stage is completed and charges actually filed or
admitted, new difficulties arise in the proceedings, which are
deliberately slow and plagued with delays: deferred establishment of the
councils, repeated postponements for minor procedural problems, etc.
Thus, it is not surprising to find proceedings[18] dragging on for four or five years or indefinitely,
allowing enough time for the events to be forgotten by the press and the
public. After such a long time, the victims' families lose hope, witnesses
move away, and the evidence disappears.[19]
153. The
Commission reiterates its position that trying common crimes as though
they were service-related offenses merely because they were carried out by
members of the military violates the guarantee of an independent and
impartial court. In grounding
its argument, it invoked a pronouncement by the United Nations Human
Rights Committee, the third and fifth Basic Principles on the
Independence of the Judiciary of the United Nations; Article 16(4) of the
Standard Minimum Rules on Human Rights in States of Emergency (Paris,
1984); and, finally, the doctrine of the Inter-American Commission.
With respect to the
investigation, trial, and punishment in the cases under study
154. As the
Commission noted earlier, when, as in the cases of Aluísio Cavalcanti,
Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and
Wanderlei Galati, the victim is not in a position to seek judicial
reparation, the right to do so is necessarily transferred to his family.
The Commission concluded that the victims and/or their families
have the right to a judicial investigation, under the responsibility of a
court of criminal justice, for the purpose of establishing liability and
punishing the persons guilty of committing human rights violations.
See, in general, Reports Nº 28/92 (Argentina) and 29/92 (Uruguay),
from the Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, doc. 14
corr. 1, of March 12, 1993, pp. 51-53 and 169-174.
That right emanates from the State’s obligation “to use the
means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to
impose the appropriate punishment and to ensure the victim adequate
compensation.” Case of Velásquez
Rodríguez (Merits), supra, par.
174.[22]
155. The
Inter-American Court of Human Rights ruled as follows in relation to the
state’s obligation to investigate incidents that violate human rights
protected by the Convention:
The duty to investigate, like the duty to prevent, is
not breached merely because the investigation does not produce a
satisfactory result. Nevertheless, it must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends upon
the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.[23]
[Case of Velásquez Rodríguez (Merits), supra,
par. 177.]
156. The
petitioners reported that the judicial authorities, for lack of diligence,
did not take measures to follow through on the prosecution of the
above-mentioned crimes, despite the clear evidence in the statements by
victims and witnesses and the results of the forensic tests clearly
indicated that grave offenses had been committed.
157. The
proceedings were extremely slow; it was found that hearings were
repeatedly suspended and put off, evidence was deemed inadmissible, and
several procedural acts were annulled, which led to excessive sluggishness
in the procedures. This meant
that in several cases the trial took place several years after the crimes
had been committed, and that some of the witnesses testified to events
they had witnessed more than five years earlier.
The passage of so much time tends to render judicial protection
ineffective.
158. Articles 8
and 25 of the American Convention establish that the rights to a fair
trial and judicial protection, ensured by the State pursuant to this
international instrument, must materialize in a reasonable time. To determine reasonability,[24] the Commission must proceed to analyze the
police investigation in question in light of the totality of
circumstances.
159. The European
Commission on Human Rights and the European Court of Human Rights, like
the Inter-American Commission, established a series of criteria or
considerations that should be borne in mind when determining what
constitutes unwarranted delay in the administration of justice, “which
shall not hinder only one of them from having weight, if appropriate.”[25] These are
the criteria established by the doctrine to determine reasonability of the
time: 1. The complexity of the case. 2. The conduct of the injured party
in terms of his or her cooperation in the development of the proceedings.
3. The manner in which the investigative phase of the proceedings was
conducted. 4. The action of the judicial authorities.
160. For the
purposes of adequately analyzing the complexity of the cases, one must
refer to what they are about: violations of the right to life and personal
integrity. Accordingly, one
must evaluate objectively the characteristics of the offenses committed
and the personal conditions of their alleged perpetrators. In just one case there are two alleged offenses, homicide and
attempted homicide. In all the other cases, the proceedings involved the
occurrence of a single criminal act.
In all the cases the offenses were carried out in well-defined and
simple circumstances, with testimony from several witnesses and the expert
reports from the office of the medical examiner in evidence. These characteristics indicate that there was no complexity
in the cases under consideration.
161. According to
information the Commission has received, some of the criminal proceedings
are still pending a final judicial decision.
162. In Brazil,
the criminal offenses in the eight cases analyzed here are prosecuted by
public criminal actions that can be brought exclusively by the Military
Public Ministry; the injured parties have no means of intervening to move
the proceedings forward.
163. The
sluggishness of the investigations and the fact that it is the military
police themselves who are entrusted with them suggest irregularities in
the pertinent police inquiries and in the investigative stage.
164. Finally, the
already-mentioned annulment of procedural acts and the repeated suspension
of hearings, the delay in publication of the judgments, among other
factors, demonstrate the negligence and inefficiency on the development of
the criminal procedures by the judicial authorities involved.
165. In view of
all the foregoing, the Commission considers that the ineffectiveness,
negligence, or omission in the development of the investigations and
proceedings by the military justice system of São Paulo, which culminated
in an unwarranted delay in the conclusion of the proceedings, not only
exempts the petitioners from the obligation to exhaust domestic remedies,
as appears in the part on admissibility, but is also a violation of
Article XVIII of the Declaration and Articles 8 and 25 of the Convention,
as it has deprived the victims’ families the right to obtain justice
within a reasonable time by means of a simple and prompt remedy.
Article 1(1) of the Convention establishes that the States party
undertake to respect the rights and liberties recognized in it, and to
ensure their free and full exercise for all persons under their
jurisdiction.[26]
IV. PROCEEDINGS SUBSEQUENT TO REPORT 74/00
166. The
Commission approved Report Nº 74/00 pertaining to this case on October 3,
2000, at its 108th session.
This report was transmitted to the State on November 1, 2000, and
it was granted a period of two months to implement the recommendations
made. The Commission informed
the petitioners of the approval of a report in accordance with Article 50
of the Convention. Inasmuch
as the period granted has expired and the Commission has not received a
response from the State regarding these recommendations, the IACHR adopts
the view that these recommendations have not been implemented.
V.
CONCLUSIONS
167 The
Inter-American Commission on Human Rights reiterates to the State the
following conclusions:
1.
The Commission reiterates its conclusion that it is competent to
hear this case and that the complaint is admissible pursuant to Articles
46 and 47 of the American Convention.
2.
Based on the foregoing data and analysis, the Commission reiterates
its conclusion that the Federative Republic of Brazil is responsible for
violating the right to life and personal security and integrity (Article I
of the American Declaration), and the right to a fair trial and to
judicial protection (Article XVIII of the Declaration and Articles 8 and
25 of the Convention), and is in breach of the State’s obligation to
ensure and respect the rights recognized in the American Convention on
Human Rights (Article 1(1)) in relation to the homicide of Aluísio
Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis
Ruben, and Wanderlei Galati, and in relation to the assaults and attempted
homicides of Cláudio Aparecido de Moraes, Carlos Eduardo Gomes Ribeiro,
Celso Bonfim de Lima, and Marcos Almeida Ferreira, all perpetrated by
military police agents of the state of São Paulo, as well as the failure
to effectively investigate and punish the persons responsible.
VI.
RECOMMENDATIONS
168. The
Inter-American Commission on Human Rights recommends 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 Ministry 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.
VII. PUBLICATION
169. The
Commission transmitted the report adopted pursuant to Article 51 of the
American Convention to the State and to the petitioner on March 12th,
2001, and gave the State one month to submit information on the measures
adopted to comply with the Commission’s recommendations.
The State failed to present a response within the time limit.
170. Pursuant
to the foregoing considerations, and in conformity with Article 51(3) of
the American Convention and Article 48 of its Regulations, the Commission
decides to reiterate the precedent conclusions and recommendations, to
make this Report public, and to include it in its Annual Report to the
General Assembly of the OAS. The Commission, pursuant to its mandate,
shall continue evaluating the measures taken by the Brazilian State with
respect to the recommendations at issue, until they have been fully
fulfilled.
Approved on April 16, 2001. (Signed): Claudio Grossman, Chairman;
Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair;
Robert K.Goldman, Peter Laurie, and Julio Prado Vallejo Commissioners.
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[3] IACHR, Report 17/98, published in its 1997 Annual
Report.
[4] See Inter-American Court of Human Rights, Advisory
Opinion 10, para. 45, July 14, 1989, “Interpretation of the American
Declaration of the Rights and Duties of Man Within the Framework of
Article 64 of the American Convention on Human Rights.” See also
IACHR, Report 24/98, on continuing violations and the applicability of
the American Convention.
[5] Inter-American Court of Human Rights, Case of Velásquez
Rodríguez, Judgment of July 29, 1988, par. 164.
[6] Although such principles cannot be taken as a standard
contemporaneous with the events, as they are dated 1990, and the
violations examined in this report occurred in the late 1980s, they
shall be considered in this case as general principles of
international law at the time, as they were already generally
accepted, and will be used in interpreting and analyzing the eight
cases.
[7] United Nations, Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials, adopted by the Eighth
United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, Havana, Cuba, August
27 to September 7, 1990. The
following clauses apply, among others:
Law enforcement officials
shall not use firearms against persons except in self-defense or
defense of others against the imminent threat of death or serious
injury, to prevent the perpetration of a particularly serious crime
involving grave threat to life, to arrest a person presenting such a
danger and resisting their authority, or to prevent his or her escape,
and only when less extreme means are insufficient to achieve these
objectives. In any event, intentional lethal use of firearms may only
be made when strictly unavoidable in order to protect life.
In the circumstances
provided for under principle 9, law enforcement officials shall
identify themselves as such and give a clear warning of their intent
to use firearms, with sufficient time for the warning to be observed,
unless to do so would unduly place the law enforcement officials at
risk or would create a risk of death or serious harm to other persons,
or would be clearly inappropriate or pointless in the circumstances of
the incident.
[8] IACHR, Report on the Situation of Human Rights in
Brazil. Chapter on Police Violence and Impunity, 1997.
[9] IACHR, Report 60/99, Case 11.516 (Ovelário Tames).
[10] See Vicenzo Manzini, Diritto penale militare,
Padua (1932), year X, p. 1 and Idelfonso M. Martínez Muñoz, Derecho
Militar y Derecho Disciplinario Militar, Buenos Aires (1977), Nº
20 and 87, pp. 36 and 194, op. cit. by Jorge Alberto Romeiro, Curso
de Direito Penal Militar (Parte Geral), p. 1, Ed. Saraiva (1994).
[11] A bill already adopted by the Senate expands the
jurisdiction of the regular courts, including other crimes committed
by the military police. The bill is not limited to conspiracies or
crimes of extortion crimes.
[12] Reinhart Maurach, Deutsches Strafrecht, ein
Lehrbuch, Allgemeiner Teil, Karlsruhe (1971), § 8, IV, c, pp.
93‑4, “O direito penal especial de maior importância prática
é o direito penal militar” (Das praktisch wichtigste
Sonderstrafrecht ist das Wehrstrafrecht) Manzini, Diritto
penale militare, cit., p. 2; Guiseppe Ciardi, Istituzioni di
diritto penale militare, Rome, n.d., v. 1, p. 12; Rodolfo Venditti,
Il diritto penale militare nel sistema penale italiano, Milan
(1978), pp. 23‑5; and Heleno Cláudio Fragoso, Lições de
direito penal, General Part, Rio de Janeiro, Forense (1980), p. 5;
op. cit. Curso de Direito Penal Militar, General Part, Jorge Alberto Romeiro.
[13] It is noted that at year-end 1992, there were 14,000
cases pending in four courts of São Paulo for which there was only
one prosecutor. HUMAN
RIGHTS WATCH/AMERICAS, Final Justice, supra
note 18, p. 41 (1994).
[14] Embassy of Brazil, Society, Citizenship and Human
Rights in Contemporary Brazil, p. 19 (1995).
[15] In March 1982, the Brazilian bar association, Ordem
de Advogados do Brasil, São Paulo section, stated that the
leading cause of the increase in deaths caused by the military police
was the impunity created by the special system of justice used to try
such cases. (Folha de
São Paulo, March 7, 1982) Conselho Estadual de Defesa dos
Direitos da Pessoa Humana, “Por Uma Nova Política de
Segurança E Cidadania,” Comissão Permanente de Justiça,
Segurança e Questão Carcerária, Documents Series 1, p. 14
(1994).
[16] See Country Reports on Human Rights Practices for
1990, Report Submitted to the Committee on Foreign Affairs, House of
Representatives, and the Committee on Foreign Relations, U.S. Senate,
by the Department of State, p. 332 (1994).
[17] See Human Rights Watch/Americas, Final Justice, Police
and Death Squad Homicides of Adolescents in Brazil, supra note 18, pp. 41‑42 (1994).
[18] Criminal inquiry (instrução
criminal) is understood to be the procedural stage for collecting
evidence so that the Council of Justice can form its own view of the
facts. It begins by deposing the accused (Article 404 of the Code of
Military Criminal Procedure, CPPM) and continues until the final
arguments (Article 428 of the same Code).
[19] Letter from the “Santo Dias Center” for Human
Rights of the Archdiocese of São Paulo, to the Executive Secretary of
the Inter-American Commission on Human Rights (June 29, 1994).
[22] Inter-American Court of Human Rights, Case of Velásquez
Rodríguez, Judgment of July 29, 1988, par. 77.
[23] “The right to a trial ‘within a reasonable period
of time’ provided for under the Inter-American Convention is
grounded, inter alia, in the
need to avoid undue delays constituting a denial of justice,
prejudicial to persons invoking the violation of rights protected by
the aforementioned Convention.”
(Report
43/96, Case 11.411, Mexico, para. 30,
Annual Report 1996, IACHR).
[24] See, for example, IACHR, Resolution Nº 17/98, Report
on Case Nº 10.037 (Mario Eduardo Firmenech). In the Annual Report of
the Inter-American Commission 1988-1989, p. 38; European Court of
Human Rights: “Konig” Case, Judgment of June 28, 1978, Series A, Nº
27, pp. 34-40, par. 99, 102-105, and 107-111; Guincho Case, Judgment
of July 10, 1984, Series A, Nº 81, p. 16, para. 38; Unión
Alimentaria Sanders S.A., Judgment of July 7, 1989, Series A, Nº 157,
p. 15, par. 40; Buchholz Case, Judgment of May 6, 1981, Series A, Nº
42, p. 16, par. 51, pp. 20-22, par. 61 and 63; Kemmache Case, Judgment
of November 27, 1991, Series A, Nº 218, p. 27, par. 60.
[25] IACHR, Annual Report 1997, pp. 655 ff.
[26] That obligation implies, as indicated by the
Inter-American Court of Human Rights, “... the duty of the States
Parties to organize the governmental apparatus and, in general, all
the structures through which public power is exercised, so that they
are capable of juridically ensuring the free and full enjoyment of
human rights. As a consequence of this obligation, the States must
prevent, investigate and punish any violation of the rights recognized
by the Convention....” Case of Velásquez Rodríguez (Merits), supra,
para. 166.
[27] The text of the proposal before Congress reads:
“Officers and rank and file of the military police of the States, in
the exercise of their police functions, shall not be considered
members of the military for criminal purposes, as jurisdiction shall
lie with the regular courts for prosecuting and judging the crimes
committed by or against them.”
