...CONTINUATION

REPORT Nº 35/08 - CASE 12.019

ADMISSIBILITY AND MERITS

(PUBLICATION)

ANTONIO FERREIRA BRAGA

BRAZIL

A.        Right to humane treatment (Article 5)

79.       Article 5 of the American Convention reads as follows:

1.       Every person has the right to have his physical, mental, and moral integrity respected.

2.       No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

80.       Article 2 of the Inter-American Convention to Prevent and Punish Torture provides that:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this Article.

81.        The Court has found that the Inter-American Convention to Prevent and Punish Torture elaborates upon the principles contained in Article 5 of the American Convention in greater detail and, therefore, constitutes an auxiliary instrument to the Convention[36].

82.        The facts alleged in the instant case took place on April 12, 1993.  On April 7, 1997, Law No. 9,455 was adopted defining torture as a crime and establishing other measures in this regard.  Under the new law, anyone found guilty of practicing torture faces a sentence of 2 (two) to 8 (eight) years’ imprisonment.  However, while this law cannot be enforced retroactively to this case, Article 129 of the Criminal Code in force since December 1940, criminalizes grievous corporal injury, which carries a penalty of imprisonment of 1 (one) to 5 (five) years[37].

83.        From the foregoing it follows that torture is absolutely prohibited by the international conventions to which Brazil is party and by its own domestic laws.

84.        In the instant case, as shown in the section on the establishment of the facts, it has been proved that Antonio Ferreira Braga was tortured by agents of the Brazilian State, a fact shown by the evidence in the case file and not contested by the State[38].

85.         The expert examination conducted by the Civil Police’s Institute of Criminology[39] found that Antonio Ferreira Braga had been subjected to torture and that the place where Mr. Ferreira Braga was found and the instruments discovered there were not suitable for a police investigation[40].

86.        One of the facts established in the present case was that instruments used in the practice of torture were found at the scene of the events[41], and that on the very same day, the Ceará State Institute of Legal Medicine conducted an Examination of the Corpus Delicti[42], which found that the alleged victim had sustained serious and obvious injuries.

87.        Thus, the findings concerning the torture of Mr. Ferreira Braga are based on a number of pieces of evidence and various expert examinations and reports done by authorities of the State.

88.        When the evidence in the case file and the laws cited above are combined, the conclusion is that the alleged victim was tortured by police officers José Sergio Andrade da Silva, Valderi Almeida da Silva and Valdir de Oliveira Silva Júnior, at the Headquarters of the Ceará State Police’s Robbery and Theft Division, on the morning of April 12, 1993, to force him to confess to a robbery.  Their conduct falls within the parameters established in Article 2 of the Inter-American Convention to Prevent and Punish Torture.

89.        As previously observed, the Court has written that a “person who is unlawfully detained is in an exacerbated situation of vulnerability creating a real risk that his other rights, such as the right to humane treatment and to be treated with dignity, will be violated”[43].  It has also held that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being”[44].  The Court’s jurisprudence is that a brief period of detention is enough to constitute an infringement of the victim’s mental and moral integrity according to the standards of international human rights law[45] and that when such circumstances occur, it is possible to infer, even in the absence of other evidence in this regard, that treatment of the victim during his isolation was inhuman, degrading, and extremely aggressive[46].

90.        All the facts described in the petition and not contested by the State, combined with the precedents referenced above, lead the Commission to conclude that on the morning of April 12, 1993, police officers José Sergio Andrade da Silva, Valderi Almeida da Silva y Valdir de Oliveira Silva Júnior subjected Antonio Ferreira Braga to treatment that qualified as torture by the criteria established in Article 5 of the American Convention and Article 2 of the Inter-American Convention to Prevent and Punish Torture, in an effort to force him to confess to a punishable offense.  This constitutes a violation of Article 5 of the American Convention.

D.        Violation of Articles 8 and 25 of the American Convention (Right to a Fair Trial and Right to Judicial Protection), in relation to Articles 1(1) and 2 thereof.

91.        As for the violation of Articles 8 and 25 of the American Convention and of Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture, the petitioners allege that the case prosecuted against those charged with having tortured the alleged victim lasted 5 (five) long years, and only then did the decision become final.  Because of the time elapsed, enforcement of the sentence that the convicted men received were time-barred by the statute of limitations.

92.       Article 8(1) of the American Convention reads as follows:

1.       very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

93.      Article 25 of the American Convention provides that:

  1.       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.

  2.       The States Parties undertake:

  a.       to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

  b.       to develop the possibilities of judicial remedy; and

  c.       to ensure that the competent authorities shall enforce such remedies when granted.
 

94.          Article 1(1) of the American Convention states that:

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

95.          The police investigation into the matter was opened on April 13, 1993, and concluded on May 6 of that year[47].  On May 26 of the same year, the Public Prosecutor’s Office filed charges against Valderi Almeida da Silva, José Sergio Andrade da Silva, Sonia Maria Gurgel Amaral and Francisco Girolando Batalha[48].  The lower court ruling was delivered on July 29, 1996, and convicted police officers Valderi Almeida da Silva and José Sergio Andrade da Silva, sentencing them to 6 (six) months imprisonment, based on aggravating circumstances.  The same ruling acquitted Sonia Gurgel and Francisco Girolando Batalha, on the grounds that they had not participated in the commission of the crime[49].  This ruling came 3 (three) years and 3 (three) months after the crimes were committed.

96.          The sentence of conviction was amended on appeal and then was confirmed and became final on May 12, 1999[50]; however, on June 10, 1999, the court declared that enforcement of the sentence for the crime was time-barred by the statute of limitations, because of the length of time that had passed between the date on which the events occurred and the date on which the conviction was delivered[51].  From the date on which the events occurred, it would be almost 6 (six) years before the criminal case was finally closed.

97.          The internal disciplinary inquiry, which ended on November 29, 1994, ordered the dismissal of Valderi Almeida da Silva and José Sergio Andrade da Silva for their torture of the alleged victim.  Francisco Girolando Batalha was convicted and sentenced to a 60 (sixty) day suspension for having overstepped his authority by arresting the subject without a warrant and taking him to the Headquarters of the Robbery and Theft Division.  Commissioner Sonia Maria Gurgel was acquitted on the grounds that she did not participate in these events[52].

98.          In this case, it is important to emphasize that the events occurred on April 12, 1993.  It is established fact that Valderi Almeida da Silva and José Sergio Andrade da Silva were tried, convicted and sentenced for the punishable offenses of arbitrary violence and abuse of authority, and their sentence became final on May 12, 1999[53].  However, on June 10, 1999, the sentence was declared time-barred based on the statute of limitations[54].  The legal grounds cited to apply the statute of limitations in the June 10, 1999 ruling was the amount of time that had elapsed between the date of the complaint and the date of the judgment, in other words more than 5 (five) years[55].  In the July 29, 1996 ruling delivered by the Judge of the 9^th Criminal Court of Ceará serving as interim judge on the bench of the 4^th Criminal Court, Francisco Girolando Batalha and Sonia Maria Gurgel Matos were acquitted of the punishable offenses with which they were charged.  The crimes charged were grievous bodily injury, unlawful constraint and arbitrary violence, provided for in Articles 129, 146 and 322 of the Criminal Code.  The measure was adopted on the basis of Article 386.IV of the Code of Criminal Procedure[56].

99.          It should be observed that although the domestic proceedings in this case follow their course, they were ineffective in determining the responsibility of all the accused and compensating the alleged victim.  Under the American Convention and the Inter-American Convention to Prevent and Punish Torture, any situation in which the practice of torture has been shown must be investigated and prosecuted rapidly.  All persons responsible for those actions must be convicted and punished, and the person tortured must be duly compensated.  If this does not happen, the proceedings are ineffective and flawed.

100.         Following this line of reasoning, the Inter-American Court has held that in order for due process of law to be present in a proceeding, it must observe all the requirements that serve “to protect, to ensure, or to assert the entitlement to a right or the exercise thereof”[57].  In other words, the “prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination[58].

101.         As for the domestic proceeding in this case and the length of time taken, the Court has established that the proceeding is at an end when a final and firm judgment is delivered.  This is the point at which the remedies under domestic law have been pursued and exhausted, and “that period of time, particularly in criminal matters, must cover the entire proceeding, including any appeals that may be filed[59].

102.         As for the “reasonable time” period referenced in Article 8(1) of the American Convention, the Court has held that three factors should be considered in determining the reasonableness of the time in which a proceeding takes place: a) the complexity of the case, b) the procedural activity of the interested party, and c) the conduct of the judicial authorities[60].  Based on the facts and evidence presented in the present case, this was not a complex matter, police from the Robbery and Theft Division detained Antonio Ferreira Braga without a court-ordered arrest warrant and did not catch him in the commission of a criminal offense; when the police took him to the headquarters of the Robbery and Theft Division, they tortured him to force him to confess to a crime that he had not committed.  In addition, the facts in the present case led to a public criminal action brought and prosecuted solely by the Public Prosecutor’s Office, but not with the necessary speed.

103.         Concerning the duration of the domestic proceedings, the Inter-American Court has held that in certain cases a prolonged delay in itself can constitute a violation of the right to fair trial.  In these situations, the State must provide, according to the above criteria, an explanation and proof as to why it has needed more time than normally required to issue a final judgment in a particular case[61].

104.         With regard to the right to effective recourse, the Commission considers that in the instant case, it is obvious from the evidence supplied by the petitioners and not contested by the State that the domestic proceedings dragged on for more than 6 (six) years; by May 12, 1999, the date the judgment became final and the persons convicted were sentenced, enforcement of that sentence was time-barred by the statute of limitations.  This was the court’s finding on June 10, 1999, which meant that the persons convicted in the case were never punished for their crimes.  The Commission has also established that the alleged victim was not compensated.

105.         The jurisprudence constante of the Court is that the formal existence of remedies under domestic law is not sufficient; they must also be effective[62], i.e., capable of producing results or responses to the violations of rights recognized in the Convention.  In other words, every person has the right to a simple and rapid recourse or to any other effective remedy before competent judges or tribunals that will protect them against acts that violate their fundamental rights[63].  That guarantee constitutes one of the basic pillars not only of the American Convention, but also of the rule of law in a democratic society as per the Convention”[64].  As the Court has written, “…  A remedy which proves to be illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective…”[65]

106.         As demonstrated, the excessive delay in prosecuting the domestic proceedings time-barred the sentence imposed.  The Commission therefore finds that these proceedings were ineffective in providing the alleged victim a simple and prompt recourse to protect him against the acts that violated his rights.

107.         The Court has written that the general obligations of the States include a positive obligation of guarantee with regard to persons under their jurisdiction[66].  This obligation to ensure requires the State:“…to take all necessary measures to remove any impediments which might exist that would prevent individuals from enjoying the rights the Convention guarantees. Any state which tolerates circumstances or conditions that prevent individuals from having recourse to the legal remedies designed to protect their rights is consequently in violation of Article 1(1) of the Convention…”[67]

108.          Concerning the statute of limitations under domestic law, the Court has written that any statute of limitations provisions or other domestic legal obstacles whose purpose is to obstruct the investigation and punishment of those responsible for human rights violations are inadmissible[68].  The Court further held that “in the light of the general obligations established in Articles 1(1) and 2 of the American Convention, the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection, in the terms of Article 25 of the Convention”[69].

109.          Under international law, the obligation to try and, if convicted, to punish the perpetrators of certain international crimes, among them the crimes against humanity, follows from the obligation to ensure upheld in Article 1(1) of the American Convention.  This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power are 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 and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation of human rights.  If the apparatus of the State functions in such a way that such violations go unpunished or the victim’s rights are not fully restored, when possible, then it can be said that the State has failed to fulfill its obligation to ensure the free and full exercise of the protected rights to persons subject to its jurisdiction[70].

110.          The Court has held that the investigation must be conducted resorting to all legal means available and must be focused on the determination of the truth and the investigation, prosecution, arrest, trial, and conviction of those persons that are responsible for the facts, both as perpetrators and instigators, especially when State agents are or may be involved in such events[71].
 

111.          This Court ruled the following in the Barrios Altos Case:

all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law[72].

112.        The Commission therefore concludes that the State violated, to the detriment of Antonio Ferreira Braga, the rights protected under Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) thereof.

E.        Violation of Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture

113.          Articles 1, 6, 7 and  8 of the Inter-American Convention to Prevent and Punish Torture read as follows:

Article 1

The State Parties undertake to prevent and punish torture in accordance with the terms of this Convention.

Article 6

In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction.

The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.

The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.

Article 7

The States Parties shall take measures so that, in the training of police officers and other public officials responsible for the custody of persons temporarily or definitively deprived of their freedom, special emphasis shall be put on the prohibition of the use of torture in interrogation, detention, or arrest.

The States Parties likewise shall take similar measures to prevent other cruel, inhuman, or degrading treatment or punishment.

Article 8

The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.

Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.

After all the domestic legal procedures of the respective State and the corresponding appeals have been exhausted, the case may be submitted to the international fora whose competence has been recognized by that State.

114.          The Inter-American Court has written that torture and cruel, inhuman or degrading punishment or treatment is strictly prohibited by international human rights law.  The prohibition against physical and psychological torture is today part of the international jus cogens and is absolute.  It persists even under the most difficult circumstances, such as war, threat of war, the fight against terrorism and any other crimes, martial law or a state of emergency, civil commotion or conflict, suspension of constitutional guarantees, internal political instability or other public emergencies or catastrophes[73].

115.          Every person’s right to protection of his physical, mental and moral integrity and the State’s obligation to treat private persons with the dignity that is inherent in every human being implies reasonable prevention of situations that might be detrimental to the protected rights[74].

116.          The Court has held that the State, as guarantor of the rights recognized in the Convention, is responsible for observance of the right of every person in its custody to humane treatment[75].  Consequently, the State is presumed responsible for the tortures, cruel, inhuman, or degrading treatments suffered by a person under the custody of state agents, if the authorities have not carried out a serious investigation of the facts followed by the prosecution of whoever appears as responsible for them[76].  The obligation to provide a satisfactory and convincing explanation of what occurred and disprove the allegations regarding its responsibility, through adequate evidentiary elements is incumbent upon the State[77].

117.          As has been shown, Antonio Ferreira Braga was tortured on the morning of April 12, 1993, in a unit of the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza, by agents of that Division.  The State did not prevent those acts and, based on the outcome of the cases prosecuted in connection with the events, failed to punish the responsible parties.  The delay in the case triggered the statute of limitations because the final judgment was not delivered until May 12, 1999, more than 6 (six) years after the events transpired.

118.          Article 8 of the Inter-American Convention to Prevent and Punish Torture expressly provides that State Parties have an obligation to proceed at their own initiative and immediately in cases such as this.

119.          The State, however, did not act in this case in conformity with those provisions.  While civil law and internal disciplinary proceedings were conducted, the high-ranking officials in charge of the Headquarters of the Robbery and Theft Division were acquitted and the subordinate police officers did not serve their prison sentence.  By the time the conviction became final, enforcement of the sentence was time barred by the statute of limitations, which meant that the remedies were entirely ineffective.  Having thus failed to provide judicial protection, the State also failed to effectively prevent and investigate the torture to which the victim was subjected.

120.          Through a disciplinary-administrative proceeding before the Public Prosecutor’s Office, the State dismissed two police officers, Valderi Almeida da Silva and José Sérgio Andrade da Silva for the torture of Mr. Ferreira Braga, suspended police officer Girolanda Batalha for 60 (sixty) days for having detained Mr. Ferreira Braga without an arrest warrant or in flagrante, and in the end suspended Police Commissioner Sonia Maria Gurgel Matos for 15 (fifteen) days for negligence in the supervision of the prisoners in her custody and in the inspection of the cells under her authority.  This shows that certain necessary steps were taken by the State to investigate, prosecute and punish those responsible for serious violations of the fundamental rights recognized in the American Convention; however, these measures were not sufficient to redress the harm caused to the victim.

121.          The Commission has also established that the alleged victim was tortured on the premises of the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza.  The torture was inflicted by police officers attached to that division who were trying to force the alleged victim to confess to a crime.  Under Article 7 of the Inter-American Convention to Prevent and Punish Torture, the State had an obligation to take measures to train police officers and other public officials responsible for the custody of persons temporarily or definitively deprived of their freedom, taking care to emphasize the prohibition against the use of torture in interrogation, detention, or arrest.  From the facts examined in the instant case, the Commission is able to infer that the agents, who tortured the alleged victim when questioning him, did not have the proper training that the Inter-American Convention to Prevent and Punish Torture requires for personnel working for the State in these areas.

122.          Having established these facts, the Commission concludes that the State failed to fulfill the obligations it undertook in the Inter-American Convention to Prevent and Punish Torture.

123.          The Commission therefore concludes that the State failed to comply with its obligation to prevent and punish torture, in accordance with Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Antonio Ferreira Braga.

F.         Violation of Article 1(1) of the Convention: the State’s obligation to respect and ensure the individual rights, in conjunction with Article 2, which establishes the State’s obligation to adopt domestic legislative and other measures, and Article 28, which establishes the federal clause.

124.          The foregoing analysis demonstrates that the State failed to comply with its obligation to respect the rights and freedoms of the individuals within its jurisdiction, provided for in Article 1(1) of the American Convention, by its violation of the rights recognized in Articles 5, 7, 8 and 25 of the American Convention, and Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture.

125.          As the Inter-American Court has written that “[a]ccording to Article 1(1), any exercise of public power that violates the rights recognized by the Convention is illegal.  Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention”[78].

126.          The second obligation stipulated in Article 1(1) is to ensure the free and full exercise of the rights and freedoms recognized in the Convention.  The Commission concludes that by violating the right to humane treatment in the case of the victim named in this report, his right to a fair trial and his right to judicial protection, the Brazilian State failed to fulfill its obligation to guarantee the free and full exercise of the Convention-recognized rights to all persons subject to its jurisdiction.

127.          Article 2 of the American Convention makes more precise and elaborates upon the obligation erga omnes to respect and ensure, contained in Article 1(1) of the American Convention[79].  In effect, the obligation to adopt domestic legal provisions requires that States parties enact and implement legislative and other measures needed to ensure the full and effective exercise of the rights and freedoms guaranteed by the Convention to all persons subject to their jurisdiction (principle of effet utile)[80].

128.          The Federal State had an obligation to adopt effective measures to prevent Antonio Ferreira Braga from being tortured by police agents attached to the Ceará State Police’s Robbery and Theft Division in Fortaleza, who detained him for a supposed theft.  The State had an obligation to afford the aggrieved party with a rapid and effective investigation of the facts, and the resulting prosecution and punishment of the responsible parties, which should have been followed up by adequate compensation for civil damages.

129.          Regardless of the internal division of authorities, the Federal State had an obligation to adopt effective measures to prevent police agents working for the State from engaging in the practice of torture to force a confession from persons within their custody.  The State failed to fulfill that obligation.  It had an equal obligation to adopt other measures to ensure effective investigation, prosecution and punishment of particular acts, and to compensate the aggrieved party so that the system of justice functioned effectively.  This is the only way that the State would have been in full compliance with the duty to adopt internal measures to ensure the rights and freedoms recognized in the American Convention.

130.          From the standpoint of international law, the rule that federated units in a federal State are bound by international human rights treaties is based on the Vienna Convention on the Law of Treaties (Articles 27[81] and 29[82]) and the so-called federal clause.  Article 28 of the American Convention makes provision for the so-called federal clause, which is the basis of a federal government’s obligation to immediately take appropriate measures so that the competent authorities of the constituent units of a federation or union like Brazil might adopt the legislative and other measures necessary to ensure compliance with the American Convention.

131.          To determine what obligations follow from the American Convention for States organized as federal systems, one has to interpret its Article 28 in combination with its Article 1(1)[83].  Article 1(1) provides that States, regardless of the structure they adopt, have an obligation erga omnes to respect and ensure the rights established in the Convention.  The federal clause further clarifies the scope of the State’s obligations erga omnes, but does not limit them.

132.          The purpose of the human rights protection required under the American Convention in general and the specific provisions in particular, transcends any invocation of the internal delegation of competences or the organization of the units that are the components of a federation[84].

133.          This argument is completely germane to Article 28 of the American Convention, which requires federal States to comply with their international obligations in respect of their entire territory.  Units of a federation are part of the State, and as such are equally bound by the provisions of the international treaties the federal government ratifies.

134.          The federal State has an obligation to consider that the "suitable measures" of which Article 28 of the American Convention speaks, must produce results that are fully compliant with the State Party’s obligations.

135.          The Commission underlines that this is the understanding of Article 28 of the American Convention that most closely corresponds to articles 27 and 31 of the Vienna Convention and Article 29(a) of the American Convention.  Any other interpretation of the obligation contained in the federal clause would take one to the absurd extreme of transforming the protection of human rights into a purely discretionary decision, left to each State party to decide.

VIII.      RECOMMENDATIONS

136.          Based on the analysis and conclusions contained herein, the Inter-American Commission on Human Rights recommends to the Brazilian State:

1.         That the necessary measures be taken to give legal effect to the obligation to investigate and effectively punish the authors of the unlawful detention of Antonio Ferreira Braga and the torture inflicted upon him.  The State must ensure criminal due process to prevent the statute of limitations from being invoked as grounds for time-barring criminal punishment in the case of crimes like torture and to prevent unwarranted delays in due process.

2.         That an investigation be conducted to establish the civil and administrative responsibilities incurred by the unreasonable delay in the criminal prosecution of the torture inflicted upon Antonio Ferreira Braga, especially delays on the part of the judicial authorities who heard the case, in order to determine whether there was negligence in their conduct and if so to punish them accordingly.

3.         That adequate reparation be made to Antonio Ferreira Braga for the violations of his human rights established herein, including pecuniary compensation.

4.         That training be given to civil police officers in order to provide them with a basic understanding of respect for the fundamental rights protected under the American Convention, especially as regards proper treatment.

IX.        ACTIONS SUBSEQUENT TO ISSUING REPORT Nº84/07

137.          On October 16, 2007, at its 130th regular period of sessions, the IACHR adopted Report Nº 84/07, in accordance with Article 50 of the American Convention, on November 19, 2007, so informing the State and setting a period of two months for it to report on compliance with the recommendations the report contained.

138.          On the same date, in accordance with the provisions of Article 43(3) of its Rules of Procedure, the Commission notified the petitioners that it had adopted the report on the merits, which had been forwarded to the State, and requested that they indicate their position regarding referral of the case to the Inter-American Court.  In addition, on December 10, 2007, certain considerations made by the Commission in said report were forwarded to the petitioners, on a confidential basis.

139.          On December 20, 2007, the petitioners forwarded a submission indicating that, as the Commission was aware, Antonio Ferreira Braga had been the victim of constant threats by the accused, especially after Mr. Ferreira Braga formally reported them.  The submission indicates that, fearing for his safety and that his family, Mr. Ferreira Braga and his family had moved to the state of Rondônia, where they were under the protection of an unspecified shelter.  The petitioners indicate that Antonio Ferreira Braga had fled from said shelter and, in recent years, had several times moved from federal state to federal state seeking to protect himself.  The petitioners also state that the last contact with the victim had been in 2003, when the final briefs in this case were prepared.  In 2003, Antonio Ferreira Braga had informed the Center for the Defense and Promotion of Human Rights of the Archdiocese of Fortaleza that he was attempting to return to the state of Ceará.  However, since that time, he had not again contacted said organization, so his whereabouts were unknown.  On December 4, 2007, a search for the victim had begun, but he had not been located.  Therefore, in the same submission of December 20, 2007, the petitioners requested a 30-day extension to submit their position on referring the case to the Court, as well as information on the victim and beneficiaries.  The Commission informed the petitioners that they could submit their position on referring the case to the Inter-American Court for consideration, and the list of the victim’s family members and address, until January 31, 2008.

140.          On January 24, 2008, the State requested a 2-month extension to submit information on compliance with the recommendations of Report Nº 84/07, because “on January 25, [2008], the Federal Government [would] meet with the state authorities responsible, at which time it [would] repeat the request for information on measures taken to comply with the aforesaid recommendations.”  In said submission, the State indicated its understanding that the granting of the extension would suspend the period set forth in Article 51(1) of the American Convention for referral of the case to the Inter-American Court.  However, the State did not submit any information whatsoever on compliance with the recommendations set forth in Report Nº 84/07. That communication was forwarded to the petitioners on January 25, 2008, granting a period of seven days to indicate their position on the request for an extension.  On February 1, 2008, the petitioners forwarded a communication indicating that they supported the request for an extension submitted by the State of Brazil.

141.          On February 8, 2008, the petitioners submitted a communication indicating that they were in favor of referring the case to the Inter-American Court for consideration.  In that connection, the petitioners reiterated the violations of Antonio Ferreira Braga’s human rights, the impunity of the agents responsible for said violations, and the effects that the facts had had on his family. The petitioners also argued that, although torture had been defined as an offence in Law No. 9.455/97, the judicial bodies had refused to implement the provisions of said law, utilizing traditional concepts such as “abuse of authority” and “bodily harm” to characterize actions which, as a result of their characteristics, constituted the crime of torture.  They also noted that the Court would be able to analyze the lawfulness of time-barring the crime of torture, used in the criminal proceedings instituted in connection with the crimes perpetrated against the victim, as well as the current failure to investigate, prosecute, and punish perpetrators in cases of torture in Brazil.

142.          On February 13, 2008, the Commission notified the parties of its decision not to refer the instant case to the Inter-American Court of Human Rights.  On that date, it requested the State to submit, within a period of one month, i.e., by March 13, 2008, a report on the measures taken to comply with the recommendations of Report Nº 84/07.

143.          On June 6, 2008, the petitioners presented their observations on the compliance with the IACHR’s recommendations in this case, remarking that “the failure of the Brazilian State to take a stronger political stance against torture in Brazil has allowed torture to continue, as well as the ineffective application of important instruments like Law No. 9.455/97, which defines torture as a crime.”

144.          On April 1 and June 13, 2008, the State presented its observations on its compliance with the Commission’s recommendations in this case. The Brazilian State indicated that it “has undertaken efforts to fulfill the recommendations of the Inter-American Commission on Human Rights in the case cited. Account should be taken, therefore, of the good faith of the Brazilian State, even if it has not been possible to comply fully with all of the recommendations to date.” The State also mentioned that a meeting had been held on the fulfillment of the recommendations, on January 25, 2008.  Participating in that meeting were the petitioners and representatives of the Special Secretariat for Human Rights of the Office of the President of the Republic, the Ministry of Foreign Affairs, the Secretariat of Justice and Citizenship of Ceará, the State Public Prosecutor’s Office, the Court of Justice of Ceará, and the Office of the Attorney General of the State of Ceará.

X.         EVALUATION OF COMPLIANCE WITH THE RECOMMENDATIONS

A.         Concerning the adoption of necessary measures to give legal effect to the obligation to investigate and punish effectively the parties responsible for the illegal arrest and torture of Antônio Ferreira Braga, and to prevent the statute of limitations from being applied to crimes such as torture

145.          The parties’ remarks indicate that police officers José Sérgio Andrade da Silva and Valderi Almeida da Silva were sentenced to nine months in prison for the crimes of bodily harm and unlawful restraint, on first appeal, on May 12, 1999. However, on June 10 of that same year, the statute of limitations was applied to this case and the punishment of the two convicts was time-barred. The decision on appeal also upheld the acquittal of Police Inspector Francisco Girolando Batalha and District Police Chief Sônia Maria Gurgel Matos. Furthermore, the enactment of Law 9.455/97 after the events in this case occurred increased the punishment indicated for the crime of torture from 2 to 8 years in prison; but it did not remove the applicability of the statute of limitations to the crime of torture in Brazil. To date, therefore, it is still permissible in Brazil to apply the statute of limitations as grounds for time-barring punishment in cases of torture, as happened in the case of the torture of Antônio Ferreira Braga. The Commission concludes, therefore, that the State has failed to comply with this recommendation.

B.         On the civil and administrative investigation of authorities who may have acted negligently, causing the unreasonable delay in the criminal proceedings in this case

146.          As for this recommendation, the petitioners argued that they knew of no initiative on the part of the State to begin proceedings to ascertain responsibility for the delay in the criminal proceedings in this case. The State did not submit information on compliance with this recommendation; rather, it argued that the criminal proceedings had been conducted in a reasonable period of time. Consequently, the IACHR finds that this recommendation remains pending fulfillment.

C.         On adequate compensation to Antônio Ferreira Braga

147.          The petitioners indicated that the Recurso Especial  lodged by the State of Ceará in the context of the action for compensation being considered in the domestic justice system has been in the Superior Court of Justice for nearly two years without procedural action.  They added that the amount of the indemnity, if paid, would be limited to moral damages, since the Judiciary had barred the payment of material damages and lost wages due to lack of evidence. The State, for its part, recognized that a decision in that action is pending, and noted that the State of Ceará will take steps to finalize the civil suit in the Superior Court of Justice and enter into an agreement with Antônio Ferreira Braga. Therefore the Commission finds that the State has not fulfilled its recommendation concerning adequate compensation to the victim. In this respect, the Commission emphasizes the need to provide full compensation (restitutio in integrum) to the torture victim Antônio Ferreira Braga, as recommended by the Commission. Furthermore, this compensation to the victim should not be contingent upon personal efforts on his part to obtain compensation for the human rights violations cited in this report.

D.         On the training of Civilian Police officers in matters of fundamental rights, especially on humane treatment and the prohibition of torture

148.          On this recommendation, the petitioners recognized that the State has taken some limited, though successful measures against the practice of torture in Brazil. They emphasize, however, that institutional torture remains systematic in Brazil and should be fought with a series of government policies and measures. Similarly, the State mentioned that the Secretariat of Public Security and Social Defense of Ceará, in its Civilian Police training courses, includes modules on ethics and citizenship, human rights, human relations, the Statute on Children and Adolescents, the lawful use of force, and Law 9.455/97. The Commission recognizes the State’s efforts in this regard and urges that initiatives such as those mentioned be continued and reinforced, so as to prevent and fight torture countrywide by way of coordinated, ongoing government policies through which the State may, for example, implement fully the Comprehensive Plan of Action to Prevent and Monitor Torture in Brazil.

XI.        CONCLUSIONS AND PUBLICATION

149.          Accordingly, the Commission finds that the Brazilian State has violated the rights of Mr. Antônio Ferreira Braga as enshrined in Articles 5, 7, 8.1, and 25 of the American Convention; and finds, further, that the State failed to fulfill the obligation set forth in Article 1.1 of the Convention and the obligations set forth in Articles 1, 6, 7, and 8 of the Inter-American Convention to Prevent and Punish Torture.  The violation of the rights enshrined in Articles 8.1 and 25 of the American Convention was included by the Commission under the principle iura novit curia.

150.          On March 13, 2008, the Commission adopted Report Nº 1/08 – the text of which is above – under Article 51 of the American Convention. On March 31, 2008, the IACHR transmitted the report to the Brazilian State and to the petitioners, in accordance with Article 51.1 of the American Convention. On the basis of the foregoing analysis, the Commission finds that the State has not complied with its recommendations.

151.          Accordingly, the IACHR has decided to reiterate the recommendations contained in paragraph 136 supra and to publish this report and include it in its Annual Report to the OAS General Assembly. In accordance with its mandate, the Commission will continue to evaluate the measures taken by the Brazilian State until the recommendations have been fulfilled in their entirety.

Done and signed in the city of Washington, D.C., on the 18^th day of the month of July, 2008. (Signed: Paolo G. Carozza, Chairman; Luz Patricia Mejía Guerrero, First Vice-Chairwoman; Felipe González, Second Vice-Chairman; Clare K. Roberts, Florentín, Meléndez, and Víctor E. Abramovich, members of the Commission).