|
|
|
...continued
D. Right to a fair trial and judicial protection
56. The petitioners allege that the delays in the military criminal process and the time elapsed (seven years) without a definitive decision being adopted against the police officers involved in the facts that led to this complaint constitute a violation of their right to a fair trial and to judicial protection (Articles 8 and 25 of the Convention, respectively). The Government, moreover, does not controvert the allegation.
57. The Commission is of the view that in this case Article XVIII of the American Declaration of the Rights and Duties of Man, enshrining the right to justice, applies. This provision provides:
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.
58. It must now be determined whether Article 8 (right to a fair trial) and Article 25 (right to judicial protection) of the American Convention apply to the instant case.
59. As stated above, Brazil deposited its instrument of accession to the American Convention on September 25, 1992, when, more than three years after the facts in the case, the legal proceedings to investigate and punish the police involved were continuing to drag out.[49] The duty to investigate continues over time. The inaction of the Brazilian state, on not undertaking an effective investigation after September 25, 1992, is in itself a specific violation independent of the right to life and to humane treatment. The violations of the right to justice and of the duty to adopt provisions of domestic law, with reference to the rights enshrined in Articles 1(1), 8, and 25 of the Convention, also constitute examples of denial of justice.
60. Under the Convention, the Brazilian state assumed the duty to investigate and punish the police involved, a duty that derives from Article 1(1) of the Convention, and which is continuing until the case is resolved. In the view of the Commission, this obligation also gives rise to the state duty to offer the required judicial guarantees for a fair trial (Article 8 of the Convention) and the judicial protection (Article 25 of the Convention) to the victims and their next-of-kin.
61. In this same line of thinking, the Inter-American Court of Human Rights has determined that are considered ineffective remedies those that prove illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case. That could be the case, for example, when practice has shown its ineffectiveness: when the Judicial Power lacks the necessary independence to render impartial decisions …[50]
62. According to Article 1(1) of the Convention, the States Parties have the duty to acknowledge and respect the rights and freedoms recognized in it and to ensure their free and full exercise to all persons subject to their jurisdiction through the required judicial guarantees to ensure that they are effective. One of these guarantees is, precisely, the right that every person to be heard within a reasonable time, by an independent and impartial court (Article 8 of the Convention).
63. In effect, only an
independent and impartial court can ensure the free and full exercise of
human rights. As a corollary, a military court or tribunal that
64. The natural purpose of the special military jurisdiction is to maintain discipline among the members of the Armed Forces in the exercise of their military functions. Therefore, this jurisdiction should not extend, under any circumstance, to judging the common crimes committed against the civilian population by the military police officers in the performance of their police functions.
65. In the instant case, the Commission considers that the lack of diligence in punishing the police involved, especially of the military criminal courts, has triggered the international responsibility of the Brazilian state. In effect, the unwarranted delay in the decision of the judicial procedures related to what happened in the 42nd Police District not only released petitioners of the obligation to exhaust domestic remedies – as said in the chapter on admissibility – but it also violated Article 8 of the American Convention on Human Rights, on depriving the victims and their next-of-kin of the right to have their case resolved “within a reasonable time,” in keeping with the provisions of that Article.
66. Moreover, submitting the case to trial by the military justice system, whose delays, inefficiency, and partiality have been shown in this case,[52] also violated Article 25 (judicial protection) in relation to the right of all persons to be judged by “an independent and impartial tribunal”. This Article provides that:
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.
67. In this respect, the Commission considers it important to reproduce, in the pertinent parts, Press Release No. 12/95, issued on culminating its on-site visit to Brazil. There it stated as follows:
The Commission also received information about acts of violence committed by the police and the impunity accorded them. To combat police violence the Commission feels that an imperative step would be to pass a law ensuring that any crime committed by military police against civilians be adjudicated through the regular justice system. The Commission similarly feels that efficient procedures should be established to receive and consider complaints against police officers. [Emphasis added.]
68. This conclusion reached by the Commission fits within Article 1(1) of the Convention, with respect to the obligation of the States Parties to ensure the free and full exercise of the rights recognized in the Convention to every person subject to their jurisdiction. From this obligation derives the duty to organize the government apparatus and structures through which public power is exercised; the duty to prevent, investigate, and punish any violation of the rights recognized by the Convention; and the duty to seek to re-establish, if possible, the right violated, and, as appropriate, pay compensation for damages.[53]
69. It also fits within the obligations derived from Article 2 of the Convention, which establishes the obligation of the States Parties to adopt provisions of domestic law. That provision states:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
70. To conclude, the Commission considers it pertinent to indicate that, as the Inter-American Court of Human Rights said, the obligation to guarantee the free and full exercise of human rights, set forth in Article 1(1) of the Convention:
not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.
71. Based on the foregoing, the Commission concludes that in the instant case, the Brazilian state has violated Article XVIII of the American Declaration of the Rights and Duties of Man, and Articles 8 and 25 of the American Convention on Human Rights, in relation to Article 1(1).
72. In view of the foregoing, the Inter-American Commission on Human Rights agrees:
1. To declare that the Brazilian state is responsible for having violated Article I (right to life, security, and personal integrity) and Article XVIII of the American Declaration, and Article 8 (right to a fair trial) and Article 25 (right to judicial protection) of the American Convention, in relation to its Article 1(1).
2. To recommend to the Brazilian state that it adopt the legislative measures needed to transfer to the regular criminal courts the trial of common crimes committed by military police officers in the performance of their public order functions.
3. To recommend to the Brazilian state that use of the cells designed for solitary confinement (celas fortes) be discontinued.
4. To request of the Brazilian state that it punish, in keeping with the gravity of the crimes committed, the civilian and military police officers involved in the facts that gave rise to the instant case.
5. To recommend to the Brazilian state, in those cases in which it has not done so, that it pay fair and adequate compensation to the victims’ next-of-kin for the harm caused as a result of the breaches of the above-mentioned provisions.
6. To request of the Brazilian state that it report to the Inter-American Commission on Human Rights, within three months, on the measures adopted to comply with the operative points of this report.
7. To transmit this report to the Brazilian state, through the Federal Government, in keeping with Article 50(2) of the American Convention, and to inform it, in keeping with that same provision, that it is not authorized to publish it.
V. PROCEEDINGS SUBSEQUENT TO REPORT Nº 16/96
73. The Commission adopted Report on the Merits Nº 16/96, on the instant case, on March 6, 1996, during its 91st session. That Report, with the Commission’s recommendations, was forwarded to the Brazilian state on July 15, 1996. In that report, the Commission requested the Brazilian state to inform it, within three months, of the measures that had been adopted to comply with the Commission’s recommendations. In this respect, the Government’s response was received on October 21, 1996; it is discussed in this report.
74. The Government’s response, dated October 17, 1996, states textually:
It is my honor to forward to Your Excellency, as an annex to note 228 of August 30, 1996, information from the Brazilian Government regarding the recommendations of the Inter-American Commission on Human Rights with respect to Case 10,301 (Parque São Lucas), contained in Report No. 16/96, adopted by the Commission at its 91st regular session:
(1) Recommendation: Transfer to the Regular Courts the trials of common crimes committed by military police.
On August 7, 1996, Law No. 9,299 was adopted, amending provisions of the Military Criminal Code and the Code of Military Criminal Procedure, providing for the transfer to the regular courts of jurisdiction over the trial of crimes against life by military police officers against civilians.
Despite some restrictions on its content and scope, there is no doubt but that the advent of the new law represents a milestone in relation to the defense of human rights in the country.
As it is a procedural norm, the application of Law No. 9,299/96 was immediate, resulting throughout the country in the transfer of jurisdiction to the regular courts of proceedings that had already begun – for example those regarding the episodes at Corumbiara and Eldorado de Carajás, and of criminal proceedings whose investigation had begun in the military justice system. This latter situation is that of the criminal proceeding aimed at investigating responsibilities in the context of the Parque São Lucas case.
In effect, proceeding No. 35,887/89, which was being processed before the Third Military Ombudsperson (Terceira Ouvidoria Militar) for the state of São Paulo, was removed on August 14, 1996, to the criminal courts of the state, as a result of the decision written and justified by the hearing judge (Juiz Ouvidor). The proceeding was received by the judge for criminal matters of the First Court of Jury Trials for the capital district of the state of São Paulo, and was entered with the number 2576/96-unit I.
(2) Recommendation: Punish the civil and military police officers involved.
The investigations into the incident indicated the participation of civil and military police officers. Accordingly, legal proceedings were instituted to determine the responsibility of the accused, and the indictment considered that there were situations of multiple criminal perpetrators in relation to the commission of 18 murders and 32 cases of attempted murder.
Of the three civil police officers involved, the jailer José Ribeiro was prosecuted criminally and found guilty by the Vara do Juri, and was sentenced to 45 years and six months of detention. A new trial was held, requested by the defense, which led to affirmation of the penalty, after which two appeals were filed: one by the Public Ministry, aimed at increasing the penalty, and another by the defense, seeking a new trial. The appeals (Proceeding TJ No. 188.066.3/4) were assigned to the Fifth Criminal Chamber of the Court of Justice for the state of São Paulo, which ruled that the prison term could only be enforced once there is a ruling on the appeals, with which the accused was released from prison after having served over two years of the sentence.
Another civil police officer, Carlos Eduardo de Vasconcelos, was tried criminally and acquitted by the Vara do Juri of the state of São Paulo. The judgment of acquittal was appealed by the Public Ministry of the state, and is before the Fifth Chamber of the Court of Justice of São Paulo.
The third civil police officer, Celso José da Cruz, was tried criminally and found guilty by the Vara do Juri of the capital of the state of São Paulo, and was sentenced to 516 years imprisonment. The defense filed an appeal, which led to a new guilty verdict, which, however, reduced the sentence to 54 years of imprisonment. The same Fifth Chamber for Criminal Matters assumed jurisdiction on receiving an appeal of protest for a new jury, which led to the filing of a special motion by the Public Ministry of the state of São Paulo, which was recently submitted to the consideration and judgment of the Superior Court of Justice. After denying successive habeas corpus motions on behalf of the accused, the Fifth Chamber decided, deferring the consideration of dilatory motions by the defense, to release the accused, who was being held in the Special Prison of the Civil Police for more than two years. For this reason, the accused is to await, on his own recognizance, the decision on the special motion, and, if the Superior Court of Justice does not endorse the arguments of the Public Ministry, the holding of a new jury trial.
Finally, as regards the 29 military police officers involved – one official, five sergeants, one corporal, and 21 soldiers – they are to be tried by the First Jury Court of the capital city, pursuant to the transfer of jurisdiction determined by Law 2,299 [sic], discussed above.
(3) Recommendation: Payment of adequate compensation to the victims’ next-of-kin.
With the conclusion of the police inquiry and the inquiry of the Military Police into the incident, the Public Ministry of the state of São Paulo placed itself at the disposal of the victims’ next-of-kin for the filing of judicial actions for compensation aimed at securing a finding that the Government of the state of São Paulo was civilly liable for the unlawful action of its public agents. Accordingly, the following actions were presented:
- First Public Treasury Judge - Proceeding Nº 127/89 Action seeking reparation for consequential damages due to unlawful act Plaintiff: Geraldo Cardoso de Paula Respondent: Public Treasury of the state of São Paulo
- Second Public Treasury Judge - Proceeding No. 118/89 Action seeking reparation for consequential damages due to unlawful act Plaintiffs: Antonio Pernomiam and Luiza Pernomiam Respondent: Public Treasury of the state of São Paulo
- Third Public Treasury Judge - Proceeding No. 128/89 Action seeking reparation for consequential damages due to unlawful act Plaintiffs: Aparecida Inés Fabri Jesuíno
Respondent: Public
Treasury of the state of São Paulo - Fifth Public Treasury Judge - Proceeding No. 90/89 Action seeking reparation for consequential damages due to unlawful act Plaintiffs: Carmem Silva de Souza, Irandi Cardozo de Araujo, Maria Dilma Barbosa Bastos, Juvenal Raymundo Bernardo, Octília Bernardo Respondent: Public Treasury of the state of São Paulo
- Fifth Public Treasury Judge - Proceeding No. 90/89 Action seeking reparation for consequential damages due to unlawful act Plaintiff: Antonio Carlos de Souza Respondent: Public Treasury of the state of São Paulo
- Fifth Public Treasury Judge - Proceeding No. 90/89 Action seeking reparation for consequential damages due to unlawful act Plaintiff: Public Ministry of São Paulo Respondent: Public Treasury of the state of São Paulo
- Sixth Public Treasury Judge - Proceeding No. 125/89 Action seeking reparation for consequential damages due to unlawful act Plaintiff: Silvia Cristina de Oliveira Lucio Respondent: Public Treasury of the state of São Paulo
- Tenth Public Treasury Judge - Proceeding No. 117/89 Action seeking reparation for consequential damages due to unlawful act Plaintiff: Joaquim Saraiva Respondent: Public Treasury of the state of São Paulo
The above-referenced actions for compensation are mostly on appeal, and one is at the phase of payment of the judgment. It should be clarified that Brazil’s administrative system imposes on the contentious organs that represent the authorities the obligation to file appeals, so long as they are admissible. It should also be noted that none of the judgments handed down as a result of these actions declared anything opposing the right to compensation.
(4) Recommendation: Cease to use the solitary confinement regime (celas fortes)
Brazil’s prison legislation is consistent with the recommendations of the United Nations on the treatment of prisoners and the rights of detainees. Therefore, the situation that provoked the death of the prisoners–the confinement of several of them in a cubicle–is a prohibited practice.
What is still accepted is individual isolation, in cases of proven necessity, on condition that it be in an adequate locale and with the necessary ventilation. Abuses and illegal practices are being combated by the Government. In the specific case of the state of São Paulo, an agreement was recently signed between the federal government and the state government to modernize the system, whose initial objective–deactivating the Carandiru detention center–is the symbol of a new prison policy for Brazil.
Final observations
By virtue of the foregoing considerations, one can conclude that the recommendations made by the Inter-American Commission on Human Rights with respect to the Parque São Lucas case coincide exactly with the present concerns of the Federal Government as regards the defense of human rights and the search for mechanisms to enhance the administration of justice, with the consequent reduction of impunity.
The recommendation transferring to the regular courts the processing and trial of common crimes perpetrated by military police officers is being considered in the terms of Law No. 9,299/96. In the specific context of the Parque São Lucas case, it was addressed by transferring to the regular courts of the state of São Paulo the criminal proceeding against the military police officers who participated in the incident.
The recommendation referring to ending the use of cells for solitary confinement finds support in the prison legislation in force; it is an objective of the Brazilian Government to step up efforts aimed at prohibiting and effectively punishing illegal practices of solitary confinement of prisoners in cubicles.
In relation to the recommendations to pay compensation and punish the persons responsible, the work developed by the Ministry of Justice through the Council for the Defense of Human Rights should continue, so that the authorities of the state of São Paulo can conclude, as soon as possible, the civil and criminal actions aimed at punishing the guilty and compensating the victims’ next-of-kin.
To that end, it will be necessary for the Public Ministry of the state of São Paulo and the judicial branch of the state to take specific measures. In this respect, the Secretariat for Justice and Citizenship of the state of São Paulo has stated that it identifies with these objectives, as has the Office of the Attorney General of São Paulo, in terms of speeding up the adoption of the necessary measures. The Attorney General of São Paulo designated a prosecutor to follow up on each of the actions related to the case, to ensure they are processed quickly. At the same time, the Ministry of Justice and the Council for the Defense of Human Rights will continue undertaking the tasks of follow-up and orientation of the state authorities for the purpose of swiftly proceeding with the trials aimed at compensating the victims’ next-of-kin and punishing the guilty.
The Permanent Mission before the Organization of American States will continue forwarding to the Executive Secretariat of the Inter-American Commission on Human Rights all supervening information, be it administrative or judicial, regarding the Parque São Lucas case.
I take this opportunity to convey to you, Your Excellency, the assures of my highest esteem.
Analysis of the Government’s response to the recommendations of the Inter-American Commission on Human Rights:
1. Transfer to the Regular Courts of the trial of common crimes committed by military police officers.
75. The Government reported that Law No. 9,299/96 amended provisions of the Military Criminal Code and the Code of Military Criminal Procedure, transferring to the regular courts jurisdiction to try crimes against life perpetrated by military police officers against civilians. Accordingly, the criminal proceeding concerning the massacre that occurred in Parque São Lucas was remitted to the criminal justice system of the state of São Paulo on August 14, 1996.
76. These facts demonstrate the positive intent of the Government to comply with the Commission’s recommendations. Nonetheless, the grave restrictions on the content and scope of Law No. 9,299/96, recognized in its response by the Brazilian Government itself, continue to stand in the way of the Brazilian state complying with the obligations it assumed in relation to the American Convention, especially because according to that law, only intentional criminal offenses, and, moreover, only those committed against life, will be transferred to the jurisdiction of the regular courts; non-intentional offenses against life and intentional criminal offenses not committed against life will continue to fall under the jurisdiction of the military justice system. Accordingly, this law does not meet the purposes for which it was apparently designed, i.e. to protect not only t he right to life, but also all other rights guaranteed by the Convention, in their full extent, independent of the criminal intent of the perpetrator.
77. In addition, in keeping with Law 9,299/96, the investigation of the crimes committed by military police officers will continue to be entrusted to the Military Police. This means that the impartiality needed for the administration of justice, as established at Articles 1, 2,and 8 of the American Convention, will continue to be compromised.
78. The Commission considers these restrictions unacceptable, and observes that there is no reason whatsoever that justifies the military courts continuing to have jurisdiction over crimes committed by military police officers against civilians. It is also of the view that the Brazilian state must adopt legal norms that transfer jurisdiction over all crimes committed by military police officers against civilians to the regular courts, not just crimes against life.
2. The punishment of the civilian and military police involved
79. The Government’s answer shows that judicial efforts were made to punish the persons guilty of the massacre. In relation to the 29 military police officers involved, the Commission notes the importance of the decision providing for the proceedings to be removed to the regular courts. It must be noted, at the same time, that the crime was committed on February 5, 1989, yet the military police officers continue in impunity and free, awaiting a trial that has yet to take place.
80. In relation to the civil police officers, the Government, in its answer, reported that they too continue in impunity and free, and are awaiting a final verdict.
81. The Government did not report whether there were any significant administrative sanctions in relation to civil or military police officers. Accordingly, the Commission concludes, based on the Government’s answer submitted September 29, 1989, that the police officers continue performing their duties in the police institutions. The Commission observes that the continuation of these persons in the police corps endangers the life and security of third persons, and aggravates the situation of impunity.
82. The Commission considers that the delay in the prosecution and punishment of the accused perpetuates injustice and is not consistent with the obligations assumed by the Brazilian state in relation to the American Convention, which provides at Article 25 the right to a simple and prompt remedy aimed at protecting against acts that violate the fundamental rights of the human person.
3. The payment of compensation
83. In its answer, the Government reported that the Public Ministry placed itself at the disposal of the families of the victims for submitting judicial actions for compensation. Nonetheless, said actions are still, eight years after they were filed, being appealed. The Commission, while it recognizes the current efforts of the Government to provide economic compensation to some of the victims’ next-of-kin, reiterates the need for swifter procedures, given that the delay in handing down a final judgment violates the state’s obligation to ensure the judicial guarantees established by the American Convention, and aggravates the suffering of the victims’ next-of-kin.
4. Ending the use of the solitary confinement regime (celas fortes)
84. The Government asserted that Brazil’s prison legislation is consistent with the recommendations of the United Nations on the treatment and rights of prisoners, in which context solitary confinement is an acceptable practice. Nonetheless, the use of such practices should be governed by minimum standards required by international provisions. In other words, not only must it be verified that it is necessary, but also that the cell is installed in an adequate locale, and with the necessary ventilation, with any inhumane or degrading treatment categorically prohibited. The Government’s response to that recommendation contradicts information presented earlier, on July 12, 1989, when the Government reported that to prevent similar episodes it had decided to end the use of the cells for solitary confinement in the police district jails. Given the breach of this recommendation to the Brazilian Government, the Commission will continue monitoring compliance with said international standards.
VII. CONCLUSIONS
a. The Inter-American Commission on Human Rights concludes that in the instant case the Brazilian state violated the human rights of Arnaldo Alves de Souza, Antonio Permonian Filho, Amaury Raymundo Bernardo, Tomaz Badovinac, Izac Dias da Silva, Francisco Roberto de Lima, Romualdo de Souza, Wagner Saraiva, Paulo Roberto Jesuino, Jorge Domingues de Paula, Robervaldo Moreira dos Santos, Ednaldo José da Fonseca, Manoel Silvestre da Silva, Roberto Paes da Silva, Antonio Carlos de Souza, Francisco Marion da Silva Barbosa, Luiz de Matos, and Reginaldo Avelino de Araujo, enshrined in Articles I and XVIII of the American Declaration and Articles 8 and 25 of the American Convention, and that it breached the obligations established in Article 1 of the Convention.
b. The Commission recognizes the efforts made by the Government to punish the perpetrators of the human rights violations, and to pay compensation for the violations of rights committed by its agents. In this respect, some of the police officers responsible for the events in question were tried and convicted. Several of the judicial proceedings aimed at paying monetary compensation to the victims’ next-of-kin are about to culminate.
c. The state promulgated a new law, No. 9,299/96, which establishes the jurisdiction of the regular courts over the crimes against life committed by members of the Military Police. As a result of that law, the judicial proceedings referring to agents of the Military Police who participated in the incident referred to in this case were already transferred to the regular courts, as they refer to common crimes.
d. Nonetheless, that law did not recognize the jurisdiction of the regular criminal courts to judge other common crimes committed by members of the Military Police, nor to investigate crimes, independent of their nature. All those crimes continue to be investigated by military organs. Accordingly, some cases of violations of rights perpetrated by members of the Military Police considered here, such as torture and mistreatment, cannot, under this law, be removed to the regular courts for them to investigate or assume jurisdiction over them.
e. As regards punishing the persons responsible, the Commission considers the sluggishness with which the proceedings have moved inexcusable, in view of the serious and clear nature of the violations. The fact that the accused have been free, and performing functions in the police institutions, highlights the breach, by the Brazilian state, of the obligations it has assumed under the American Convention on Human Rights.
f. The Commission recognizes the intention of the Brazilian Government to adapt the special cells for solitary confinement and maximum security to the international standards. The Commission will continue monitoring their use.
85.
Accordingly, given that the Brazilian state has not adopted the measures
stipulated within the term provided for in Report 16/96, to correct the
situation emerging from the violations of rights reported, and has even
allowed impunity for the persons responsible for those violations, the
Inter-American Commission on Human Rights decides to adopt the present
report, send it to the Brazilian state, and decide, in due course, how
to publish it, in keeping with Article 51 of the American Convention and
Article 48 of its Regulations. VII. PUBLICATION
86. On March 24, 1997, the Commission forwarded report 10/97–whose text is all the foregoing–to the Brazilian state, in keeping with Article 51(2) of the Convention, and gave it an additional 30 days to comply with the recommendations transcribed supra (paragraph 70). On that same date, the IACHR forwarded the report to the petitioners. On September 22, 1997, the Brazilian state indicated that it accepted the offer by the IACHR, prior to the adoption of the report on the merits, to enter into a friendly settlement, and it provided information on actions taken to comply with the recommendations contained in Report No. 10/97. As of that date, and with the active participation of both parties and the backing of the IACHR, a process was begun to seek a friendly settlement to this case. On September 29, 1997, the Commission invited both parties to a hearing, which was held October 8, 1997, to address a possible friendly settlement with respect to compliance with the recommendations made in that report.
87. On December 22, 1997, the state provided additional information related to compliance with the recommendations contained in Report No. 10/97. On January 15, 1998, the parties met in São Paulo. On May 18, 1998, a working meeting was held at the IACHR headquarters, on which occasion both parties and the IACHR signed a preliminary friendly settlement document. At the same time, the Secretariat of the IACHR undertook to prepare and send the parties, for their signature, a draft final friendly settlement agreement.
88. The IACHR then made several efforts to obtain the signature of the final act of the friendly settlement agreement, which included a visit to Brazil by the President of the Commission, without positive results. On June 27, 2002, the Commission send a communication to both parties requesting up-to-date information about compliance with the recommendations contained in Report Nº 10/97. On August 15, 2002, the co-petitioner Center for Justice and International Law (CEJIL) submitted the information requested, while the Brazilian state did not respond. On October 22, 2002, the response of the petitioners was forwarded to the state, and it was requested to submit observations within 30 days; Brazil did not present any response to that request for observations.
89. On February 27, 2003, in the context of the 117th regular session of the IACHR, a working meeting was held at the offices of the IACHR, called by the Commission in order to follow up on compliance with the IACHR’s recommendations made in Report No. 10/97. At that meeting, it was agreed that the state would provide information to the IACHR regarding compliance with the recommendations, and that both parties would study the possibility of meeting to update the information on compliance with the recommendations.
90. On March 10, 2003, the state sent the IACHR updated information on the trials of the police involved in the events denounced in the instant case. On May 14, 2003, that information was forwarded to the petitioners, which was asked to submit any observations it deemed pertinent on that information within 30 days; the petitioners did not submit any observations.
91. Bearing in mind the foregoing, the Commission, before reaching its conclusion regarding the publication of the merits report in the instant case, considers it appropriate, based on the updated information that both parties have provided, to state for the record the extent of compliance with the recommendations made in report on the merits No. 10/97 (paragraph 70, supra).
92. In this respect, the Commission considers that the recommendation that Brazil “adopt the legislative measures needed to transfer to the regular criminal courts the trial of common crimes committed by military police in the performance of their public order functions” has met with partial compliance. In effect, the IACHR reiterates that although Law No. 9,299/96 represents major progress in this respect, it is insufficient, as it merely transfers to the regular courts crimes against life committed by military police in the performance of their functions, and keeps jurisdiction over all other crimes committed by members of the Military Police under the Military Police.
93. With respect to the recommendation that “use of the cells designed for solitary confinement (celas fortes) be discontinued,” the Commission reiterates that this recommendation has not yet met with compliance.
94. As regards the recommendation that the state “punish, in keeping with the gravity of the crimes committed, the civilian and military police officers involved in the facts that gave rise to the instant case,” the Commission observes that according to the information provided by Brazil on March 10, 2003, a criminal proceeding was begun in 1989 against 32 people in relation to the facts of the present case: José Ribeiro (jailer); Celso José da Cruz (police investigator); Carlos Eduardo de Vasconcelos (police officer); and 29 military police officers.
95. From that information, it also appears that José Ribeiro was convicted through a final and firm judgment, and sentenced to a prison term of 45 years and six months, and that he is serving the sentence in a São Paulo prison. Celso José da Cruz and Carlos Eduardo de Vasconcelos were acquitted, and the respective decisions were appealed, and are now awaiting a decision by the Court of Justice (Tribunal de Justiça) of São Paulo. Both are free. Finally, and with respect to the 29 military police officers who were also accused of participating in the facts, it was decided not to try them, in a decision that was appealed by the Public Ministry, yet to date there has been no decision on that appeal. Accordingly, this recommendation has not met with full compliance.
96. As regards the recommendation that the Brazilian state, “in those cases in which it has not done so ... pay fair and adequate compensation to the victims’ next-of-kin,” the Commission observes that the government of the state of São Paulo published Decree 42,788 on January 8, 1998, authorizing the payment of compensation to the next-of-kin of the victims who died, for moral injury, and for an amount equivalent to 300 minimum salaries per dependent. In this respect, a working group was created within the Office of the Attorney General for the state, to identify the beneficiaries and the amount of compensation. The IACHR was informed that at the end of the work of that working group, the result was that compensation was paid to the next-of-kin of another seven victims, it was determined that there were no beneficiaries with respect to two victims; and, finally, that the next-of-kin of two of the victims had pursued judicial actions against the state for material and moral injury, and the state was awaiting the results of those proceedings before paying compensation.
97. By virtue of the foregoing considerations, and the provisions of Article 51(3) of the American Convention and Article 45 of the its Rules of Procedure, the Commission decides to reiterate the conclusions and recommendations contained in chapters IV and VII supra; to publish this report; and to include it in its Annual Report to the OAS General Assembly. The Commission, in implementing its mandate, will continue evaluating the measures adopted by the Brazilian state with respect to the recommendations, until they have been carried out.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 8th day of the month of October, 2003. (Signed): José Zalaquett, President; Clare K. Roberts, First Vice-President; Susana Villarán, Second Vice-President; Robert K. Goldman and Julio Prado Vallejo, Commissioners.
[ Previous ] [50] Inter-American Court of Human Rights, Advisory Opinion No. 9, October 6 1987, par. 24. [51] The military police in Brazil are not part of nor are they coordinated with the Navy, as they, like the civilian police forces, answer to the state governors and the governor of the Federal District, and the governor of the Territories (Article 144(III)(6) of the Federal Constitution in force). Nonetheless, they are auxiliary and reserve units of the Army. See Ministry of Foreign Affairs, “Relatório Inicial Brasileiro Relativo ao Pacto Internacional dos Direitos Civis e Políticos de 1966,” Ministry of Foreign Affairs, Fundação Alexandre de Gusmão, and Center for the Study of Violence, Universidade de São Paulo, p. 34 (1994). Article 42 of the Constitution provides further that the members of the military police are military employees. In this respect, it says: “the members of the Armed Forces and military employees of the States, Territories, and Federal District, the members of their military police forces, and of their military firefighter corps are federal military employees.” [52] See, among others, the press release issued by the IACHR upon concluding its on-site visit to Brazil, in which the Commission mentions the problems that have arisen from the testimony provided by the human rights organizations and the representative of civil society. Of those problems, special mention can be made of the following, in relation to the instant case: the administration of justice, including the powers of the Public Ministry; police violence and impunity; the prison system and the jurisdiction of the military courts for trying common crimes committed by the Military Police. The Commission stated, in addition: “While an in_depth analysis of those topics is scheduled for its meeting in February of next year, the IACHR wishes to point out here that an effective judicial branch is an essential requirement of a modern democratic system. Under the provisions of the Pact of San José, the inhabitants of the states parties to the Convention are entitled to access to justice within a reasonable time. Article 25 of that instrument establishes everyone's 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. The member states, for their part, undertake to guarantee the exercise of that recourse. In this respect the Commission notes with concern the difficulties which the exercise of the right under reference __ i.e., to try a case initiated within a reasonable time __ entails in Brazil.”
[53]
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, |
