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ANNUAL REPORT OF THE IACHR 2007
Status of compliance with the recommendations of the IACHR (Continuation)
CASE 11.307, Report N° 103/01, María Merciadri de Morini (Argentina)
57. On October 11, 2001, the Commission approved a friendly settlement in the case of María Merciadri de Moroni in its Report 103/01. The object of the petition was the application of Law 24.012 (the Quota Act) and its governing decree which provides for the inclusion of female candidates on the ballot.
58. The friendly settlement agreement states that on December 28, 2000, Decree 1246 was enacted to guarantee the effective participation of women in the lists of candidates for national elective offices. The petitioner recognized that the Decree adequately provides for the fundamental issues she raised in the complaint she filed with the Commission.
59. The Commission concludes that the State has fully complied with the points of the agreement that the parties signed
CASE 11.804, Report N° 91/03 Juan Ángel Greco (Argentina)
60. On October 22, 2003, the Commission approved a friendly settlement agreement in the case of Juan Ángel Greco. In summary, the petitioners contended that, on June 25, 1990, Mr. Greco, then 24 years of age, was illegally detained and mistreated while trying to seek police assistance to denounce an assault. They indicated that while Mr. Greco was detained in the Comisaría [police station] of Puerto de Vilelas, Chaco Province, a fire broke out in his cell under unexplained circumstances, causing the victim to sustain severe burns. The petitioners alleged police responsibility in the setting of the fire, and in delaying the transfer of the victim to the hospital for a period of several hours. Mr. Greco remained hospitalized until his death on July 4, 1990. The petitioners further alleged that the State failed to carry out an adequate investigation to clarify the facts alleged, thereby denying the family their right to justice and to seek compensation.
In this agreement the State agreed to the following:
1. Provide economic reparation to the family members of Juan Ángel Greco in the sum of three hundred thousand pesos ($300,000) that shall be paid to Mrs. Zulma Basitanini de Greco in the amount of thirty thousand ($30,000) per month in the time period specified in point 3 of the present item, that amount comprising material damages, moral damages, lost wages, costs, fees and any other classification that would arise from the responsibility assumed by the Province of Chaco.
2. Provide the petitioners and the Inter-American Commission on Human Rights, through the Office for Human Rights of the Foreign Ministry, a legalized and certified copy of two cases for which the Province of Chaco has requested reexamination.
3. Within the framework of its competences, encourage the reopening of the criminal case and the corresponding investigations.
4. Direct the reopening of the administrative case Nº 130/91-250690-1401 once the criminal case has been reopened.
5. Commit itself, in the framework of its competences, to ensuring that the victim’s family members have access to the judicial and administrative investigations.”
6. Publish the agreement in the principle written press sources of the nation and the Province of Chaco.”
7. Continue pursuing legislative and administrative measures for the improved protection of Human Rights. Specifically, it was placed on record that a draft law creating a Criminal Prosecutor’s Office for Human Rights has been developed and transmitted to the Provincial Chamber of Deputies for its study and approval.
8. Strengthen the work of the Permanent Commission for Control of Detention Centers, created by Resolution No. 119 of the Ministry of Government, Justice and Labor of the Province of Chaco, on February 24, 2003.
9. Further emphasize the work of the Organ of Institutional Control (O.C.I) created by Article 35 of the Organic Police Law of the Province of Chaco Nº 4.987, directing it toward the more effective protection of human rights on the part of the Provincial Police. At the initiative of the Executive, the Provincial Counsel for Education and Promotion of Human Rights created by Law Nº 4.912 was constituted in the sphere of the Chamber of Deputies. The representatives of the distinct intervening organs and powers have already been designated and convoked.
61. In a working meeting held on March 5, 2004, the Commission received information from the parties on measures taken in compliance with the points agreed upon. On November 8, 2004, the Commission asked the parties to submit updated information on progress in complying with the accord. The petitioners submitted a brief note on the matter on November 19, 2004. Additional working meetings were held, the most recent on October 20, 2006, and further requests for additional information were sent to both parties, the latest in December 2006. The petitioners presented updated information in a note dated December 16, 2006. The Commission has also asked the two parties for up-to-date information; thus, the petitioners submitted letters on August 13 and December 5, 2007.
62. Based on the information the Commission has for this case, it considers that the State has fully complied with the monetary settlement provisions of the agreement. It has also complied with the aspects concerning publication of the agreement, and the establishment of a Criminal Prosecutor’s Office for Human Rights. The petitioners and the Commission both view these measures as important contributions to the process of compliance in this case.
63. However, according to available information, the aspects concerning the duty to investigate and punish those responsible for the violation of Juan Ángel Greco’s human rights, in other words, effective progress in the criminal case and administrative proceeding, remains pending. As for the criminal case, the parties report that in October 2003 the prosecutor opened a formal case against the police agents of the Comisaría who were on duty at the time of the actions that caused the victim’s death, requesting several evidentiary investigations. The petitioners have said that these steps were not ordered until June 2004, and to the best of their knowledge have not been taken.
64. On December 31, 2005, the State notified the petitioners of the opening of the administrative proceeding at the police headquarters, and supplied information on the case pending in the Tribunal de Cuentas [Accounts Tribunal] of the Province of Chaco. However, the petitioners report they have received no information about substantive progress in the administrative proceeding.
65. The petitioners state they have not had effective access to developments in the criminal and administrative proceedings. They say that although the Province had promised to send them copies of various files, they have not received copies of the pertinent files nor information on the progress of the investigations.
66. Finally, as regards the undertaking to adopt other legislative and administrative measures to expand the protection of human rights, the petitioners have reported that the State has not yet fulfilled its commitment to strengthen the work of the Permanent Commission for Control of Detention Centers and to establish the Council for Education and Promotion of Human Rights.
67. In view of the foregoing, the Commission considers that the State has partially complied with the points of the agreement and the recommendations made.
CASE 12.080, Report N° 102/05, Sergio Schiavini and
María Teresa
68. On October 27, 2005, in Report N° 102/05, the Commission approved a friendly settlement agreement in the case of Sergio Schiavini and María Teresa Schnack. In summary, the petitioners claimed that the State was responsible for the death of Sergio Andrés Schiavini on May 29, 1991, during a clash between members of the Buenos Aires Provincial Police and a gang of thieves who had taken a number of people hostage, among them the young Schiavini. The petition also denounced as aggravating elements by the State the use of excessive force during the shootout, the denial of judicial protection and due process guarantees, and the persecution that María Teresa Schnack suffered since the death of her son, Sergio Schiavini, as a result of her actions to press for investigation.
69. In the friendly settlement the State recognized its responsibility for “the facts of what transpired…and the attendant violation of the rights and guarantees recognized by the American Convention on Human Rights as described in Admissibility Report N° 5/02, adopted by the IACHR during its 114th regular session.”
70. Under the terms of the settlement, the State undertook the following:
1. The parties agree to set up an “ad-hoc” Arbitration Tribunal to determine the amount of economic reparation due Sergio Andrés Schiavini’s heirs, in keeping with the rights acknowledged to have been violated and the applicable international standards. The Tribunal shall be made up of three independent experts, with recognized expertise in human rights and of the highest moral caliber. The petitioners will designate one expert, the national State shall propose a second, and the third shall be proposed by the two experts designated by the parties. The Tribunal shall be formed no later than 30 days following the approval of this agreement by Decree of the Executive Branch of the Nation.
2. The procedure to be followed shall be determined by common agreement among the parties, and set forth in writing, a copy of which shall be submitted to the Inter-American Commission on Human Rights. To this end, the parties shall designate a representative to participate in the discussions of the procedure. In representation of the national State, the Ministry of Foreign Affairs, International Trade, and Worship and the Ministry of Justice and Human Rights shall be charged with designating an official in the area with competence in human rights matters in both Ministries.
3. The parties agree to form a technical working group, in which the Government of the Province of Buenos Aires shall be invited to participate, to carry out the studies and take such other steps as may be necessary to submit for the consideration of the Legislature and, where appropriate, the competent federal authorities, the following initiatives, aimed at implementing the necessary measures to bring existing law into harmony with international standards, in accordance with point 2 of the Act dated November 11, 2004:
a) Draft legislative reform bill making it mandatory, with no exceptions, to perform an autopsy in all cases of violent or criminally suspicious deaths. It will also prohibit members of the security forces from being involved in this process with respect to facts in which they have participated;
b) Draft reform of the Criminal Procedures Code of the Nation granting a victim’s relatives the right to choose to designate their own expert before the autopsy is performed;
c) Analysis of the legislation in force on the procedures followed by the forensic medical office to evaluate possible modifications that could contribute to ensuring transparency and effectiveness in its performance;
d) Draft reform of the Criminal Procedures Code of the Nation to incorporate the violation of human rights as grounds for review;
e) Draft reform of the Criminal Procedures Code of the Nation incorporating the violation of human rights as grounds for the immediate suspension or interruption of the statute of limitations;
f) Evaluation of domestic law concerning hostage-taking and the use of force to bring it into harmony with international standards in accordance with principle No. 3 of UN Resolution 1989/65;
g) Proposal that, in the event that the appeal for review in the Schiavini case filed by the Provincial Office of the General Prosecutor before Chamber 111 of the Criminal Court of Cassation of Buenos Aires Province is unsuccessful, a “Truth Commission” is established at the federal level to help effectively safeguard that right;
h) Development of draft reforms setting forth the procedures for processing and responding to petitions under study by the Commission and before the Inter-American Court of Human Rights, that include the establishment of a specific entity with jurisdiction in the decision-making process—including the institution of “friendly settlement”—and a mechanism to ensure compliance with the recommendations and/or judgments of the Commission and/or the Inter-American Court of Human Rights.
4. The Government of the Argentine Republic pledges to facilitate the activities of the working group and make available the technical support and facilities it requires in order to perform its task. It also pledges to periodically inform the Inter-American Commission on Human Rights regarding the outcomes of the task entrusted to the technical group and invites the Commission to participate actively in evaluating the draft reforms, as well as the follow-up and evolution of these initiatives.
5. The Government of the Argentine Republic pledges to publish this agreement in the Official Gazette of the Argentine Republic, in the newspapers “La Unión” of Lomas de Zamora, “Clarín”, “La Nación,” and “Página/12”, once it has been approved by the Inter-American Commission on Human Rights in accordance with the provisions of Article 49 of the American Convention on Human Rights.
71. The Ad Hoc Arbitration Tribunal to Determine Monetary Reparations in the Case of Schiavini v. the State of the Argentine Republic, established in the framework of the friendly settlement reflected in Report N° 102/05, and composed of arbiters Víctor Manuel Rodríguez Rescia, Marcelo López Alfonsín, and Fabián Omar Salvioli, handed down its decision on December 4, 2006, and read its arbitral award in a public hearing held in the City of Buenos Aires on the same date. Under the terms of the settlement, the award was submitted to the Inter-American Commission on Human Rights for evaluation in the framework of the process to follow up on compliance with the agreement, in order to verify whether it is consistent with the applicable international parameters.
72. The Commission has evaluated the procedure used to reach the arbitral decision, as well as the award for monetary reparations in the case.
73. By means of a letter dated October 25, 2007, the petitioners told the Commission that the beneficiaries’ bank accounts, as indicated by the Ad Hoc Tribunal, were credited with the amount due as financial compensation. With that information, the Commission believes that in the case at hand, the State has fully complied with the monetary compensation aspects of the agreement. That step was applauded by both the petitioners and the Commission, as a major contribution to the compliance process in the case at hand.
74. In view of the foregoing, the Commission concludes that there is partial compliance with the agreement.
CASES 12.067, 12.068 and 12.086, Report N° 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
75. In Report N° 48/01 of April 4, 2001, the Commission concluded that the State wa responsible for: a) violating Articles I, XVIII, XXV and XXVI of the American Declaration by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg to a mandatory death penalty; b) violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV, of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence; c) violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected; d) violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions; and e) violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration.
76 The IACHR issued the following recommendations to the State:
· Grant Messrs. Edwards, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
· Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.
· Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXIV of the American Declaration to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing under Article XXVI of the American Declaration and the right to judicial protection under Article XVIII of American Declaration are given effect in The Bahamas in relation to recourse to Constitutional Motions.
· Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the rights under Articles XXV and XXVI of the American Declaration to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
77. On November 8, 2002, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 48/01. The State has not reported the Commission as to its compliance with the Commission’s recommendations in Report N° 48/01. On December 18, 2002, the Petitioners in Case 12.067, Michael Edwards, wrote to the Commission and reported it that they had written to the Attorney General of The Bahamas asking what steps the State would be taking in response to the Commission’s findings and recommendations. To date they are still awaiting a response from the Attorney General of The Bahamas concerning the same. On December 18, 2002, the Petitioner in Case 12.062, Omar Hall, wrote to the Commission and reported it that despite enquiries made to the Bahamian Government, she has not received any information concerning what steps the State has taken to commute Mr. Hall’s death sentence or otherwise put into effect the Commission’s recommendations made in Report N° 48/01. With regard to Case 12.086, Brian Schroeter and Jeronimo Bowleg, the Petitioners wrote to the Commission and reported it that they were currently attempting to verify which, if any, of the recommendations contained in Report N° 48/01, has been complied with by the State. Based on these considerations, the IACHR presumes that the Government of The Bahamas has not complied with the Commission’s recommendations.
78. By communications of July 2, 2004 and November 9, 2004, January 04, 2007, and November 02, 2007, the Commission requested information from the State about compliance with the recommendations set forth in Report N° 48/01, pursuant to Article 46.1 of the Commission’s Rules of Procedure. The Commission has not received any responses from the State to these communications.
79. The Commission, therefore, concludes that compliance with the aforementioned recommendations remains pending
CASE 12.053, Report N° 40/04, Maya indigenous communities of the Toledo District (Belize)
80. In its October 12, 2004 Report N° 40/04, the Commission concluded that the State was responsible for: a) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by failing to take effective measures to recognize their communal property right to the lands that they have traditionally occupied and used, without detriment to other indigenous communities, and to delimit, demarcate and title or otherwise established the legal mechanisms necessary to clarify and protect the territory on which their right exists; b) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the Maya people; c) violating the right to equality before the law, to equal protection of the law, and to nondiscrimination enshrined in Article II of the American Declaration to the detriment of the Maya people, by failing to provide them with the protections necessary to exercise their property rights fully and equally with other members of the Belizean population; and d) violating the right to judicial protection enshrined in Article XVIII of the American Declaration to the detriment of the Maya people, by rendering domestic judicial proceedings brought by them ineffective through unreasonable delay and thereby failing to provide them with effective access to the courts for protection of their fundamental rights.
81. The IACHR issued the following recommendations to the State:
1. Adopt in its domestic law, and through fully reported consultations with the Maya people, the legislative, administrative, and any other measures necessary to delimit, demarcate and title or otherwise clarify and protect the territory in which the Maya people have a communal property right, in accordance with their customary land use practices, and without detriment to other indigenous communities.
2. Carry out the measures to delimit, demarcate and title or otherwise clarify and protect the corresponding lands of the Maya people without detriment to other indigenous communities and, until those measures have been carried out, abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the Maya people.
3. Repair the environmental damage resulting from the logging concessions granted by the State in respect of the territory traditionally occupied and used by the Maya people.
82. On February 1, 2006, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of March 01, 2006, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. The Petitioners also requested the Commission to grant precautionary measures aimed at enforcing compliance of the recommendations. In July 2006, the Commission considered the Petitioners’ request and declined to grant precautionary measures. The State has so far not responded to the Commission’s request for up-dated information concerning compliance with the Commission’s recommendations in Report N° 40/04.
83. On November 2, 2007, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of November 30, 2007, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. However, the Petitioners informed the Commission of a judgment of the Supreme Court of Belize delivered on October 18, 2007, that “found that Belize is obligated not only by the Belize Constitution but also by international treaty and customary international law to recognize, respect, and protect Maya customary land rights.” The Petitioners added that the judgment was “significantly informed throughout by the 2004 final report of the Inter-American Commission on Human Rights”. The Petitioners state that leasing, logging, and oil exploration activities have continued on Maya lands in the Toledo District, despite the Supreme Court judgment and the Commission’s recommendations contained in Report N° 40/04. The State has so far not responded to the Commission’s request for up-dated information concerning compliance with the Commission’s recommendations in Report N° 40/04.
84. The Commission, therefore, concludes that compliance with the aforementioned recommendations remains pending.
CASE 12.515, Report N° 97/05, Alfredo Díaz Bustos (Bolivia)
85. On October 27, 2005, the Commission approved an amicable settlement agreement in the case of Alfredo Díaz Bustos.
Under this agreement, the State undertakes to:
1. Give Alfredo Díaz Bustos his document of completed military service within thirty (30) working days after he submits all the required documentation to the Ministry of Defense;
2. Present the service document free of charge, without requiring for its delivery payment of the military tax stipulated in the National Defense Service Act, or the payment of any other amount for any reason or considerations of any other nature, whether monetary or not;
3. Issue, at the time of presentation of the service record, a Ministerial Resolution stipulating that in the event of an armed conflict Alfredo Díaz Bustos, as a conscientious objector, shall not be sent to the battlefront nor called as an aide;
4. Include, in accordance with international human rights law, the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces;
5. Encourage,
together with the Deputy Ministry of Justice, congressional approval of
military legislation that would include the right to conscientious
objection to military service; For his part, Alfredo Díaz Bustos agreed to:
1. Present, for internal administrative purposes of the Ministry of Defense, a statement sworn before a competent judge in accordance with Article 78 of the National Defense Service Act;
2. Request through the Ombudsman that the IACHR assign Case 12.475 to the status of friendly settlement as provided in Articles 48.1.f and 49 of the Convention on Human Rights and Article 41 of the Rules of Procedure of the IACHR, once he has received the record of completed military service and the Ministerial Resolution is issued by the Ministry of Defense in the terms stipulated in Clause Three I of this document.
86. On November 1, 2007, the Commission asked the parties for up-to-date information on the state of compliance with the agreement. On December 17, 2007, the petitioner lodged a short communication reporting that: “the Ombudsman initially determined that it was not appropriate to offer comments, since the Bolivian State was in a special situation with the drafting of a new constitutional text, which was to incorporate the basic right of conscientious objection in accordance with the existing draft constitutional amendments and the written commitments that the Bolivian State had entered into before this agency […]. However, the new Bolivian Constitution has now been approved, both specifically and in general, and its catalogue of rights does not include “conscientious objection”; this means that the Bolivian State has failed to comply with items (d) and (e) of the agreement.”
87. Based on these considerations, the IACHR concludes that the measures spelled out in the friendly settlement agreement have been partially carried out.
CASE 12.516, Report N° 98/05, Raúl Zavala Málaga
and Jorge Pacheco Rondón
88. On October 27, 2005, the Commission approved a friendly settlement agreement in the case of Raúl Zavala Málaga and Jorge Pacheco Rondón.
Under the terms of the agreement the State undertook to:
1. Contract Jorge Pacheco Rondón for the ODESUR Project;
2. Reinstate Raúl Zavala Málaga as head of sports infrastructure with rank [Item] No. 13, as of January 3, 2005.
For their part, Jorge Pacheco Rondón and Raúl Zavala Málaga agreed to:
1. Formally and expressly discontinue all legal action taken, on a national level, with the Fifth Court for Preliminary Criminal Proceedings, and internationally, with the Inter-American Commission on Human Rights.
2. Refrain from undertaking any future judicial or extrajudicial action pertaining to compliance with Administrative Resolution SSC/IRJ/139/2003 of August 28, 2003.
89. On November 1, 2007, the Commission asked the parties for up-to-date information on the state of compliance with the agreement. On November 13, 2007, the petitioner submitted a brief communication reporting that: “since all the recommendations served by the IACHR have been met it full, no additional comments are relevant.” The Commission received no reply from the State.
90.
Based on the information provided, the Commission concludes that the
State has fully complied with the points of the agreement that the
parties signed. CASE 12.051, Report N° 54/01, Maria da Penha Maia Fernandes (Brazil)
91. The Commission, in its Report N° 54/01 of April 16, 2001, concluded that: a) the Federative Republic of Brazil was responsible for violation of the right to a fair trial and judicial protection, guaranteed in Articles 8 and 25 of the American Convention, in accordance with the general obligation to respect and guarantee rights set forth in Article 1(1) of this instrument, because of the unwarranted delay and negligent processing of this case of domestic violence in Brazil; b) the State had adopted a number of measures intended to reduce the scope of domestic violence and tolerance by the State thereof, although these measures have not yet had a significant impact on the pattern of State tolerance of violence against women, in particular as a result of ineffective police and judicial action in Brazil; and c) the State had violated the rights of Mrs. Fernandes and failed to carry out its duty assumed under Article 7 of the Convention of Belém do Pará and Articles 8 and 25 of the American Convention; both in relation to Article 1(1) of the Convention, as a result of its own failure to act and tolerance of the violence inflicted.
92. The IACHR conveyed the following recommendations to the Brazilian State:
1. Complete, rapidly and effectively, criminal proceedings against the person responsible for the assault and attempted murder of Mrs. Maria da Penha Fernandes Maia.
2. In addition, conduct a serious, impartial, and exhaustive investigation to determine responsibility for the irregularities or unwarranted delays that prevented rapid and effective prosecution of the perpetrator, and implement the appropriate administrative, legislative, and judicial measures.
3. Adopt, without prejudice to possible civil proceedings against the perpetrator, the measures necessary for the State to grant the victim appropriate symbolic and actual compensation for the violence established herein, in particular for its failure to provide rapid and effective remedies, for the impunity that has surrounded the case for more than 15 years, and for making it impossible, as a result of that delay, to institute timely proceedings for redress and compensation in the civil sphere.
4. Continue and expand the reform process that will put an end to the condoning by the State of domestic violence against women in Brazil and discrimination in the handling thereof. In particular, the Commission recommends:
a. Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
b. The simplification of criminal judicial proceedings so that the time taken for proceedings can be reduced, without affecting the rights and guarantees related to due process.
c. The establishment of mechanisms that serve as alternatives to judicial mechanisms, which resolve domestic conflict in a prompt and effective manner and create awareness regarding its serious nature and associated criminal consequences.
d. An increase in the number of special police stations to address the rights of women and to provide them with the special resources needed for the effective processing and investigation of all complaints related to domestic violence, as well as resources and assistance from the Office of the Public Prosecutor in preparing their judicial reports.
e. The inclusion in teaching curriculums of units aimed at providing an understanding of the importance of respecting women and their rights recognized in the Convention of Belém do Pará, as well as the handling of domestic conflict.
f. The provision of information to the Inter-American Commission on Human Rights within sixty days of transmission of this report to the State, and of a report on steps taken to implement these recommendations, for the purposes set forth in Article 51(1) of the American Convention.
93. The State did not submit information regarding its compliance with the aforementioned IACHR recommendations.
94. The petitioners have affirmed, firstly, that a meeting was held on January 30, 2007 at the headquarters of the Office of the Special Secretary for Human Rights of the Office of the President of the Republic, in Brasilia. Participants included both representatives of the State and of the petitioners. The renewal of these negotiations was reinforced, they state, by the presence of a new actor, the representative of the government of the State of Ceara; the negotiations showed a common intention to find paths pointing towards compliance with the recommendations given, despite the differences that arose in the meeting.
95. The petitioners add that another meeting was held on December 3, 2007, in Fortaleza, state of Ceará. It was attended by representatives of the federal and state governments and was intended to discuss aspects of the recommendations that were still pending implementation. On that occasion, the Governor of Ceará agreed to pay the victim compensation in the amount of R$60,000 (sixty thousand reals), approximately US$30,000 (thirty thousand U.S. dollars), as redress for the violations suffered. The meeting also discussed public policies to be enforced in the state.
96. Regarding recommendation No. 1 (supra), they state that the situation has not changed from what was reported last year, with the judiciary having concluded the criminal action, with the subsequent conviction of the guilty party, who is nevertheless serving the sentence handed down by the open regime.
97. Regarding recommendation No. 2 (supra), they have asserted that up to date there is no visible progress in the investigation and establishment of responsibility of those who promoted the irregularities and unwarranted delays in the proceedings; this is what led them to bring the matter before the Commission. Although the State has provided information stating that administrative proceedings were underway regarding the issue being heard by the judiciary of the State of Ceara, to date no copy of it has been submitted, and hence there is no evidence of its existence. With respect to an alleged lack of impartiality in the investigation, they affirm that it is evident from the fact that it was carried out by the subjects of the investigation’s own peers. They argue that to date the State has not managed to clarify the origins of nor find those responsible for obstructions within domestic proceedings; the statute of limitations is about to expire for these crimes, which in turn will prevent the effective establishment of the facts. These points were emphatically defended in the meeting that took place.
98. Regarding recommendation No. 3 (supra), they reported that as regards the symbolic redress owed to the victim, the Federal Senate awarded her the Bertha-Lutz Citizenship Prize, on the nomination of the Secretariat for Women’s Policies (SPM), together with Law 11.340, creating mechanisms for preventing domestic and family violence against women, which was named in the victim’s honor. However, the petitioners and the victim understand that the symbolic redress must involve a public ceremony of recognition, with an official statement regarding the recommended forms of redress.
99. Regarding pecuniary reparations, the petitioners state that, seven years after the recommendations were issued, the victims have not yet received any pecuniary compensation.
100. As regards recommendation No. 4(a) (supra), the petitioners note that those measures are related to the enactment of Law 11.340/06 (Maria da Penha), referred to above, which is believed to represent a step forward regarding domestic violence against women. This law emphasizes prevention, assistance, and protection for women and their dependents facing situations of violence; it establishes mechanisms for punishing, reeducating, and rehabilitating their assailants; and it addresses the matter in a comprehensive, multidisciplinary, complex, and specific fashion. Nevertheless, there are a number of challenges facing the effective enforcement of the Maria da Penha Law (LMP), such as awareness-building and training for justice officials on how to understand and interpret its provisions and the problem of domestic/family violence against women. That is one of the most delicate topics in the country, regarding which no specific data exist. There is no official information about the measures taken in connection with it, particularly as regards the identification of specialized judicial and police professionals trained since the law was enacted. Its enforcement has also faced resistance, chiefly among judicial officials.
101. The petitioners point to judicial decisions that have called the law unconstitutional on the grounds that it allegedly violates gender equality and the most favorable venue provisions enshrined in Law 9.099/90, which deals with special courts set up to try crimes of lower offensive potential; attacks on the use of criminal law as an affirmative step for tackling violence against women; problems with the specific and unified courts for domestic/family violence against women, etc. The various decisions that have ruled, in a discriminatory fashion, that the LMP is unconstitutional leave the victims of domestic violence without statutory protection, thereby violating the provisions of the Federal Constitution and international standards. They claim that these decisions indicate the urgent importance of State investment in awareness building and training in order to change the socio-cultural and institutional structures that tolerate violence against women. The petitioners stated they had no public information from the State indicating the implementation of measures intended to include units in teaching curricula targeting the importance of respecting women and their basic rights or the handling of domestic conflicts. They also note that the law has been enforced unequally between various regions of the country.
102. Regarding recommendations Nos. 4(b) and (c) (supra), the petitioners report that, according to information from the Special Secretariat for Women’s Policies, only 47 (forty-seven) specialized courts for domestic/family violence against women were created, in accordance with the provisions of the LMP, with 47% (forty-seven percent) of them located in Brazil’s southeastern region. The state of Ceará, where the incident that led to the violations of the victim’s rights took place, announced the creation of two special courts. The petitioners claim they have no detailed information about the proceedings before those courts, in particular regarding the granting or denial of protective measures on behalf of women who are victims of domestic/family violence.
103. In February 2007, the Special Secretariat for Women’s Policies (SPM) created an Observatory to monitor the implementation of the LPM and of the Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women (“Convention of Belém do Pará”) throughout the territory of the state and within the executive, legislative, and judicial branches of government.
104. The Commission concludes that there is partial compliance with the aforementioned recommendations. [TABLE OF CONTENTS | PREVIOUS | NEXT] |
