|
|
|
Status of compliance with the recommendations of the IACHR (Continuation)
Case 12.051, Report No. 54/01, Maria da Penha Maia Fernandes (Brazil)
98. In Report No. 54/01 of April 16, 2001, the Commission concluded that (a) the Federative Republic of Brazil was responsible for violating the rights to judicial guarantees and judicial protection, guaranteed by Articles 8 and 25 of the American Convention, in keeping with the general obligation to respect and ensure the rights provided for in Article 1(1) of that instrument, due to the unwarranted delay and negligent processing of this case of domestic violence in Brazil; (b) the State had taken some measures aimed at reducing the scope of domestic violence and state tolerance of it, although those measures have not succeeded in significantly reducing the pattern of state tolerance, in particular in the wake of the ineffectiveness of police and judicial action in Brazil, with respect to violence against women; and (c) the State had violated the rights and failed to carry out its duties as per Article 7 of the Convention of Belém do Pará to the detriment of Ms. Fernandes; and in connection with Articles 8 and 25 of the American Convention and in relation to its Article 1(1) for its own omissions and tolerance for the violence inflicted.
99. The IACHR made 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.
100. The State submitted information regarding implementation of those recommendations of the IACHR on December 22, 2008. To date the petitioners have not presented information on implementation of the IACHR’s recommendations.
101. As regards recommendation No. 1 supra, the State reported that person responsible for the attack on and attempted homicide of the victim has been convicted and served the penalty imposed, therefore, it is considered that it was fully implemented.
102. With respect to recommendation No. 2 supra, the State indicated that the Special Secretariat for Human Rights submitted the matter to the National Judicial Council – the organ entrusted with administrative and financial control of the Judicial branch – which requested information of the state Supreme Court of Ceará. That information was already provided, and the proceeding has been pending a decision as of October 3, 2008. In addition, the State highlighted that reforms were made to the Code of Criminal Procedure, so as to expedite the procedure with regard to the cases under the authority of the Tribunal de Jurados.
103. As regards recommendation No. 3 supra, the State indicated that by a law approved by the Legislative Assembly of the state of Ceará, the payment of R$ 60,000 (sixty thousand reals) was made to the victim as material reparation, on July 7, 2008, during the ceremony paying tribute to the victim for her struggle on behalf of women victims of domestic violence. In addition, the State indicated that during the publication of the “Maria da Penha Law,” symbolic reparation was made to the victim through a tribute rendered by the President of the Republic. Therefore, it considers that this recommendation has been carried out in full.
104. As regards the various points of recommendation No. 4 supra, the State emphasized that the Special Secretariat for Women’s Policies has implemented a series of measures in this respect. The State reported that in 2003, the National Policy for Confronting Violence against Women was implemented, including several measures with respect to fighting domestic violence.
105. In particular, the State notes that on August 7, 2006, Law 11,340 was published (the “Maria da Penha :Law”), which created mechanisms for inhibiting domestic and family violence against women. That law, according to the State, addressed the recommendations of the Committee on the Elimination of All Forms of Discrimination against Women, created by the treaty of the same name, and effectively implemented the Convention of Belém do Pará, ratified by Brazil on November 27, 1995, domestically. The State also indicated that the Maria da Penha Law incorporates major gains in the protection of women: the criminalization of domestic and family violence against women in their various forms of expression; the creation of Courts on Domestic and Family Violence; and the creation of the Offices of Ombudspersons for Women, among other measures.
106. One year after promulgating the law, the State emphasized the following: Society has mobilized broadly around the question of violence against women, and the media have broadly publicized the issue. Fifteen specialized courts have been established and 32 courts have been adapted to provide the assistance needed by women victims of violence. The response of the police commissioners has changed significantly with respect to allegations of violence against women. In this respect, the State indicated that by virtue of the obligation imposed by the law to initiate a police inquiry in cases of domestic violence, from October 2006 to May 2007, 32,360 police inquiries were initiated by the Special Police Stations for Women (DEAM). In addition, those police stations proceeded to ask that the courts issue 16,121 measures of protection for the victims. During that period, the Courts of Domestic and Family Violence filed 10,450 criminal actions against domestic violence, and granted 5,247 measures of protection for the victims. Moreover, the Judicial Branch issued 864 arrest warrants in the act, and 77 orders for pre-trial detention. The attitude of women victims of violence has also changed significantly since the promulgation of the Maria da Penha Law; according to the State, the telephone service created to serve women victims of violence has received 11,100 requests for information from October 2006 to May 2007. That service operates 24 hours a day, and offers legal advice to victims, as well as guidance with respect to the network of assistance for victims of domestic violence.
107. The State also emphasized that the Secretariat for Reform of the Judicial Branch (SRJ) has allocated R$ 11,000,000 (eleven million reals) to the states of the federation for measures to implement the Maria da Penha Law. That investment benefited the creation of specialized courts and/or of Office of Ombudspersons for Women in Bahia, the Federal District, Espírito Santo, Minas Gerais, Rio de Janeiro, Rio Grande do Sul, São Paulo, Alagoas, Ceará, Pará, and Pernambuco.
108. According to the State, on August 17, 2007, the President of the Republic launched the “National Partnership for Confronting Violence against Women” during the opening of the Second National Conference of Policies for Women. That partnership ensured, from 2008 to 2011, investments of R$ 1,000,000,000 (one billion reals) for actions to address violence against women through a concerted action by different ministries and secretariats, under the coordination of the Special Secretariat for Policies for Women. According to the State, the fundamental areas of the pact are: National Policy for Confronting Violence against Women, including implementation of the Maria da Penha Law; promoting the sexual and reproductive rights of women, and addressing the feminization of HIV/AIDS and other sexually transmitted diseases; fighting sexual exploitation and trafficking of women; and promoting the human rights of women deprived of liberty. As regards the assistance-facilitating aspect, the partnership aims at strengthening the network of assistance for victims, by establishing, reforming, and improving 764 institutions, including Special Police Stations for Women, Reference Centers for Assistance for Women in Situations of Violence, Office of Ombudspersons for Women, Women’s Shelters, and Courts of Domestic and Family Violence.
109. Finally, the State reported that in the state of Ceará the State Plan of Actions for implementing the National Pact to Confront Violence against Women was launched, with a view to preventing and combating all forms of violence against women from an integral approach. In pursuing that objective, the plan proposes the creation of three Reference Centers in the municipalities of Maranguape, Limoeiro do Norte, and Iguatú; the creation of two women’s shelters, in Itapipoca and Quixadá; the professional characterization of the women victims of violence; the creation of a data base on violence against women in Ceará; the creation of a unit specialized in implementing the Maria da Penha Law at the Office of Ombudsperson for Women; the creation of a Court of Domestic and Family Violence against Women; the implementation of six Units to Prevent Violence and Promote Health in Sobral, Beberibe, Quixeramobim, Choro, Carnaubal, and Barbalha; the implementation of the model project of assistance for the victims of the trafficking of persons in Fortaleza; the publication of the la Report of the Interdisciplinary Working Group on the Women’s Prison System; and the creation of a state-level organ for carrying out public policies related to women, among other measures.
110. In view of all the foregoing, the Commission concludes that the State has significantly carried out the recommendations outlined, and urges the state to continue implementing public policies so as to prevent, punish, and eradicate violence against women, in particular by effectively implementing the Maria da Penha Law.
Cases
11.286, 11.406, 11.407, 11.412, 11.413, 11.415,
11.416 and 11.417,
111. In Report No. 55/01 of April 16, 2001, the Commission concluded that the Federative Republic of Brazil was responsible for violating the right to life, integrity, and personal security (Article I of the American Declaration), the right to judicial guarantees and protections (Article XVIII of the Declaration, and Articles 8 and 25 of the Convention), and the obligation the state has to ensure and respect the rights (Article 1(1)) recognized in the American Convention on Human Rights, in relation to the homicide of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderley Galati, and in relation to the attacks on and attempted homicide of Claudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira and Carlos Eduardo Gomes Ribeiro, all by military police agents of the state of São Paulo, as well as the failure to investigate and impose an effective sanction on the persons responsible.
112. The IACHR made the following recommendations to the Brazilian State:
1. That it carry out a serious, impartial, and effective investigation into the facts and circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and of the assaults on and attempted homicides of Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that it duly prosecute and punish the persons responsible.
2. That such investigation include the possible omissions, negligence, and obstructions of justice that may have resulted from the failure to convict the persons responsible in a final judgment, including the possible negligence and mistakes of the Public Prosecutor’s Office and of the members of the judiciary who may have decided to waive or reduce the corresponding sentences.
3. That the necessary measures be taken to conclude, as soon as possible and in the most absolute legality, the judicial and administrative proceedings regarding the persons involved in the above-noted violations.
4. That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.
5. That the necessary measures be taken to abolish the jurisdiction of the military justice system over criminal offenses committed by police against civilians, as proposed by the original bill, introduced in due course, to repeal Article 9(f) of the Military Criminal Code, and to approve, to take its place, the single paragraph proposed in that bill 27.
6. That the Brazilian State take measures to establish a system of external and internal supervision of the military police of São Paulo that is independent, impartial, and effective.
7. That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.
113. The State presented information with respect to the implementation of the recommendations mentioned, by the IACHR on December 16, 2008. To date, the petitioners have not submitted information on the recommendations of the IACHR.
114. On a preliminary basis, the IACHR notes that Report on the Merits No. 55/01 refers to several joined cases (11,286, 11,406, 11,407, 11,412, 11,413, 11,415, 11,416 and 11,417), with respect to the violations of human rights by agents of the Military Police of the state of São Paulo against nine victims. In its communication, however, the State only makes reference to case 11,286, in which it refers to two victims: Aluísio Cavalcanti and Cláudio Aparecido Moraes. The information that follows, therefore, refers to implementation with the recommendations of the IACHR only in relation to those two victims. That is, with respect to cases 11,406, 11,407, 11,412, 11,413, 11,415, 11,416 and 11,417, the IACHR does not have information from the parties on the recommendations made.
115. As regards recommendation No. 1 supra, the State reported that the criminal proceeding with regard to the acts perpetrated against Aluísio Cavalcanti and Cláudio Aparecido Moraes (Case No. 993.03.054541-0) continues awaiting a decision on the appeal filed by the Public Ministry.
116. As regards recommendation No. 2 supra, the State reported that the fact that the criminal proceeding continues awaiting a final decision hinders the investigation into the possible omissions, acts of negligence, and obstructions of justice. Nonetheless, the State indicated that it would examine the possibility of the case being analyzed by the National Council of the Public Ministry and by the National Justice Council.
117. As regards recommendation No. 3 supra, on the administrative procedures applicable to military police involved in the facts of case 11,286, the State reported that the eight military police officers were submitted to procedures before the Council of Justification or the Disciplinary Board. In this respect, the State indicated as follows: agents Francisco Carlos Gomes Inocêncio, Dirceu Bartolo, Rubens Antônio Baldasso, and Luiz Fernando Gonçalves were expelled from the Military Police; agent Robson Bianchi had his procedure archived by decision of the Secretary for Public Security of São Paulo; agents João Simplício Filho and Roberto Carlos de Assis also had their procedures archived; and agent José de Carvalho was retired ex officio.
118. As regards recommendation No. 4 supra, the State reported that the federal government has urged the Government of São Paulo to carry out this recommendation.
119. As regards recommendation No. 5 supra, the State argued that its implementation depends on legislative reforms, which have been partially carried out through Law No. 9,299 of 1996 and Constitutional Amendment No. 45, of 2004. In addition, the State indicated that two proposed laws (PL) are before the legislature that refer to that recommendation: PL No. 2014, of 2003, which establishes the jurisdiction of the Tribunal de Jurados to prosecute members of the military in all willful crimes against civilians; and PL No. 1837, of 2003, which establishes that the crimes of homicide and bodily lesions committed by state-level military police against civilians are under the jurisdiction of the regular courts.
120. As regards recommendation No. 6 supra, the State referred to the existing organs of internal oversight, namely, the Corregedoria of the Civilian Police and the Corregedoria of the Military Police. In addition, the State noted that the Ouvidoria (Ombudsman) of the São Paulo Police, created by Decree No. 39,900, of January 1, 1995, is an independent, impartial, and effective external supervisory organ.
121. Based on the foregoing, the Commission concludes that the State has partially carried out the recommendations.
Case 11.517, Report No. 23/02, Diniz Bento da Silva (Brazil)
122. In Report No. 23/02 of February 28, 2002, the Commission concluded that the Federative State of Brazil was responsible for violating the right to life (Article 4) of Mr. Diniz Bento da Silva, which occurred in the state of Paraná on March 8, 1993, and for violating the right to judicial guarantees (Article 8), the right to judicial protection (Article 25), and the right to obtain guarantees and respect for the rights spelled out in the Convention (Article 1(1)).
123. The IACHR made the following recommendations to the Brazilian State:
1. Conduct a serious, effective, and impartial investigation through the ordinary justice system to determine and punish those responsible for the death of Diniz Bento da Silva, punish those responsible for the irregularities in the investigation by the military police, as well as those responsible for the unjustifiable delay in conducting the civil investigation, in accordance with Brazilian law.
2. Take the necessary steps to ensure that the victim’s family receives adequate compensation for the violations established herein.
3. Take steps to prevent a repetition of such events and, in particular, to prevent confrontations with rural workers over land disputes, and to negotiate the peaceful settlement of these disputes.
124. To date, neither the State nor the petitioners submitted information with respect to implementation of those recommendations of the IACHR.
125. Therefore, similar to its conclusion for 2007, the Commission concludes that the recommendations noted are pending implementation.
Case 10.301, Report No. 40/03, Parque São Lucas (Brazil)
126. In Report No. 40/03 of October 8, 2003, the IACHR concluded that the Brazilian State violated the human rights of Arnaldo Alves de Souza, Antonio Permoniam Filho, Amaury Raymundo Bernardo, Tomaz Badovinac, Izac Dias da Silva, Francisco Roberto de Lima, Romualdo de Souza, Wagner Saraiva, Paulo Roberto Jesuíno, 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 Marlon da Silva Barbosa, Luiz de Matos, and Reginaldo Avelino de Araújo, enshrined in Articles I and XVIII of the American Declaration and Articles 8 and 25 of the American Convention, and that it did not carry out the obligations established in Article 1(1) of the same Convention.
127. The IACHR made the following recommendations to the State:
1. 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. 2. That use of the cells designed for solitary confinement (celdas fortes) be discontinued. 3. 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. 4. 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.
128. In the same Report, the Commission stated the extent of compliance with those recommendations at that time in the following terms:
[T]he 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.
129. The State presented information on implementation of the IACHR{s recommendations on December 19, 2008. To date the petitioners have not submitted any information on implementation of the IACHR’s recommendations.
130. On recommendation No. 1 supra, the State indicated that it has been partially implemented through Law No. 9,299, of 1996 and Constitutional Amendment No. 45, of 2004. In addition, the State indicated that two proposed laws (PL) were before the legislature that refer to that recommendation: PL No. 2014, of 2003, which establishes the jurisdiction of the Tribunal de Jurados to try members of the military for all willful crimes against civilians; and PL No. 1837, of 2003, which establishes that the crimes of homicide and bodily lesions committed by state military police against civilians fall under the jurisdiction of the regular courts.
131. As regards recommendation No. 2 supra, the State reported that in the state of São Paulo there are no cells for holding prisoners in solitary confinement. In addition, according to the survey carried out by the National Secretariat of Public Security of the Ministry of Justice, of the 26 states and Federal District, and the responses provided by 15 states, it appears that only in the state of Roraima are there cells for solitary confinement. In this respect, the State reported that it would take steps for the Government of Roraima to stop using those cells.
132. As regards recommendation No. 3 supra, the State reiterated the information provided previously with respect to the criminal and administrative proceedings in relation to the civilian police involved in the events. In this respect, the State reported that agent José Ribeiro was convicted and is currently serving a sentence at Unit II of the Special Prison of the Civilian Police; Civilian Police Chief Carlos Eduardo de Vasconcelos was acquitted by final decision that became res judicata on September 2, 2003; accused Celso José da Cruz was dismissed administratively from the Civilian Police and his criminal proceeding is pending a decision on special appeal by the Superior Court of Justice; agents Terezinha Dantas Padilla and João Evangelista de Assis were acquitted on March 26, 1999, and April 28, 1998, respectively. Nonetheless, with respect to what is noted in paragraph 72(2) of Report on the Merits No. 40/03, the IACHR notes that in relation to the 29 military police officers involved – one official, five sergeants, one corporal, and 21 soldiers – the State did not provide information on compliance with this recommendation.
133. With respect to recommendation No. 4 supra, the State reiterated what was reported above with respect to Decree 42,788/98, authorizing the payment of compensation to the next-of-kin of the victims who died, the creation of a Working Group to identify the beneficiaries and the amount of compensation, and the payment of compensation to the next-of-kin of 8 (eight) of the victims; the next-of-kin of another 7 (seven) victims were not determined, and it was determined that there were no beneficiaries with respect to 2 (two) of the victims (IACHR. Annual Report 2007, Chapter III.D, para. 127). The IACHR, in terms similar to those indicated in its Annual Report for 2007, notes that it recognizes the importance of the payment of compensation by means of adopting administrative measures, but it must note that there are still victims and next-of-kin who have not received compensation, whose rights must be preserved.
134. In view of the foregoing, the IACHR concludes that the State has partially carried out the recommendations indicated.
Case 11.289, Report No. 95/03, José Pereira (Brazil)
135. On October 24, 2003, by Report No. 95/03, the Commission approved a friendly settlement agreement in the case of José Pereira. By means of this agreement, the State recognized its international responsibility in the case, given that “the state organs were not capable of preventing the occurrence of the grave practice of slave labor, nor of punishing the individual actors involved in the violations alleged.”
136. Pursuant to that agreement, the State undertook to:
1. Publicly recognize its responsibility by the solemn act of creating the National Commission for the Eradication of Slave Labor – CONATRAE (created by Presidential Decree of July 31, 2003), which will take place on September 18, 2003.
2. Keep under reserve the identity of the victim at the moment of the solemn act recognizing State responsibility and in public declarations about the case.
3. Continue with the efforts to carry out the judicial arrest warrants against the persons accused of the crimes committed against José Pereira. To this end, the friendly settlement agreement will be forwarded to the Director-General of the Department of the Federal Police.
4. Compensate José Pereira for material and moral damages suffered.
5. Implement the actions and proposals for legislative changes contained in the National Plan for the Eradication of Slave Labor, drawn up by the Special Commission of the Council for the Defense of Human Rights, and initiated by the Government of Brazil on March 11, 2003, in order to improve the National Legislation aimed at prohibiting the practice of slave labor in Brazil.
6. Make every effort to secure the legislative approval (i) of Proposed Law No. 2130-A, of 1996, which includes among the violations of the economic order the use of “unlawful means of reducing production costs such as the non-payment of labor and social taxes, exploitation of child, slave, or semi-slave labor”; and (ii) the version presented by the Deputy Zulaiê Cobra to take the place of the proposed law No. 5,693 of Deputy Nelson Pellegrino, which amends Article 149 of the Brazilian Criminal Code.
7. Defend the establishment of federal jurisdiction over the crime of reduction to conditions analogous to slavery, for the purpose of preventing impunity.
8. Strengthen the Public Ministry of Labor; ensure immediate compliance with the existing legislation, by collecting administrative and judicial fines, investigating and pressing charges against the perpetrators of the practice of slave labor; strengthen the Mobile Group of the MTE; take steps along with the Judiciary and its representative entities to guarantee that the perpetrators of the crimes of slave labor are punished.
9. Revoke, by the end of the year, by means of the appropriate administrative acts, the Cooperation Agreement signed between the owners of estates and authorities of the Ministry of Labor and Public Ministry of Labor, signed in February 2001, and which was denounced in this proceeding on February 28, 2001.
10. Strengthen gradually the Division of Repression of Slave Labor and Security of Dignitaries (STESD), established under the Department of the Federal Police by means of Administrative ruling (Portaria)-MJ No. 1,016, of September 4, 2002, so as to give the Division adequate funds and human resources for the proper performance of the functions of the Federal Police in the actions to investigate reports of slave labor.
11. Take initiatives vis-a-vis the Federal Public Ministry to highlight the importance of Federal Prosecutors according priority to participating in and accompanying the actions to perform inspections for slave labor.
12. Undertake in October 2003 a national campaign to raise awareness of and oppose slave labor with a particular focus on the state of Pará. On this occasion, through the presence of the petitioners, publicity will be given to the terms of this Friendly Settlement Agreement. The campaign will be based on a communication plan that will include the preparation of informational materials geared to workers, inserting the issue in the media through the written press, and through radio and TV spots. In addition, various authorities are to make visits to the targeted areas.
13. Evaluate the possibility of holding seminars on the eradication of slave labor in the state of Pará no later than the first half of 2004, with the presence of the Federal Public Ministry, ensuring that the petitioners are invited to participate.
137. With respect to the recognition of international responsibility (supra item 1), the State reported that this recognition was made during the solemn occasion marking the launching of the National Commission for the Eradication of Slave Labor (CONATRAE), on September 18, 2003, keeping the victim’s identity confidential (supra item 2). Similarly, with respect to the pecuniary measures of reparation (supra item 4), the Commission in the 2006 Annual Report considered that said obligation had been fully discharged. In this respect, the State reported that on August 25, 2003, it made payment of fifty-two thousand reals (R$ 52.000) to the victim, by Law No. 10,706.
138. The State submitted information on the implementation of the friendly settlement agreement on December 5 and December 29, 2008. To date the petitioners have not submitted information on implementation of the agreement.
139. The State did not submit any information on compliance with the judicial arrest warrants against the accused for the crimes committed against José Pereira (supra item 3).
140. With respect to the legislative changes proposed in the National Plan for the Eradication of Slave Labor (supra item 5), specifically on the amendment to Article 149 of the Brazilian Criminal Code (supra item 6.ii), the State reported that on December 11, 2003, the National Congress approved Law No. 10,803, thereby amending that article of the Criminal Code. That law expanded the range of conduct that constitutes the crime of “reduction to a condition analogous to that of a slave,” and added the sanction provided for of two to eight years imprisonment, the penalty of a fine, and the sanction for violence.
141. The State also alluded to various other legislative measures that it said were being promoted. For example, it mentioned Proposed Constitutional Amendment 438, of 2001, on the expropriation of lands on which the practice of slave labor has been verified; Proposed Law (PL) 5,016/2005, on the inclusion of the crime of “reducing to a condition analogous to that of a slave” in the list of hideous crimes; PL 2,022/1996, on the prohibition on contracting and participating in public biddings that attaches to those companies which, directly or indirectly, use slave labor; as well as PLs 3,384/2000, 5,756/2001, 6,038/2001, and 6,039/2002.
142. With respect to the establishment of federal jurisdiction to prosecute the crime of “reduction to a condition analogous to that of a slave” (supra item 7), the State indicated that in 2006 the Federal Supreme Court recognized (Special Appeal RE No. 398041-PA) the jurisdiction of the federal judiciary to try said crime. Accordingly, the State emphasized that Constitutional Amendment No. 45, of 2005, established the possibility of “federalizing” crimes against human rights.
143. With respect to the adoption of immediate measures related to the strengthening of the Public Ministry of Labor and of the Mobile Group of the MTE, as well as initiatives along with the Judicial Branch and its representative entities (supra item 8), the State observed that they were already implemented, and exemplified the foregoing through a series of measures adopted.
144. On revocation by the applicable administrative acts of the Cooperation Agreement signed between estate owners and authorities of the Ministry of Labor and the Public Ministry for Labor (supra item 9), the State reported that even though said cooperation agreement has yet to be revoked, it is not used at all.
145. With respect to items 10 and 11 supra, the State emphasized that it has taken effective measures to implement them. In this respect, it observed that the Federal Police – whenever asked to do so – participates in the oversight actions of the Mobile Group of the MTE, and that federal police officers (Polícia Rodoviária Federal, the federal highway police) have been trained to identify situations involving the irregular transport of workers for slave labor. In addition, it indicated that under the Federal Public Ministry, the Office of the Federal Prosecutor for Citizen Rights assumed the commitment to eradicate slave labor as of 2003, by bringing criminal actions against that crime.
146. Finally, with respect to raising awareness of and opposition to the practice of slave labor, with a specific focus on the state of Pará (supra items 12 and 13), the Government reported that on October 20, 2003, the National Campaign to Eradicate Slave Labor was inaugurated, in order to raise the awareness of rural producers against the use of slave labor, and to inform rural workers of their rights. In addition, a State Campaign to Eradicate Slave Labor was launched in Pará. Finally, the State reported that on September 10, 2008, the Second National Plan to Eradicate Slave Labor was launched. It incorporates the five years of experience implementing the First National Plan, 68.4% of whose objectives were met, according to the International Labor Organization. In that regard, the State notes that from 2003 to 2007, the Mobile Group rescued 19,927 persons subjected to slave labor in Brazil.
147. In view of the foregoing, the IACHR concludes that the State has carried out the friendly settlement agreement in part.
Case 11.556, Report No. 32/04, Corumbiara (Brazil)
148. In Report No. 32/04, of March 11, 2004, the Commission concluded that the Brazilian State was responsible for: (a) violation of the rights to life, humane treatment, judicial protection, and judicial guarantees, enshrined in Articles 4, 5, 25, and 8, respectively, of the American Convention, to the detriment of the landless workers identified in the report due to extrajudicial executions, injury to their personal integrity, and violations of the duty to investigate, the right to an effective remedy, and the right to judicial guarantees, committed to their detriment; (b) the violation of its duty to adopt provisions of domestic law, in the terms of Article 2 of the American Convention, and of the obligation imposed on it by Article 1(1) to respect and ensure the rights enshrined in the Convention; and (c) the violation of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.
149. The Commission made the following recommendations to the State:
1. Conduct a complete, impartial, and effective investigation into the events, by nonmilitary organs, to determine responsibility for the deaths, personal injuries, and other acts that occurred at Santa Elina ranch on August 9, 1995, and to punish all the material and intellectual authors, whether civilian or military.
2. Make adequate reparations to the victims specified in this report or to their next-of-kin, as appropriate, for the human rights violations determined in this report.
3. Adopt the necessary measures to prevent similar events from occurring in the future.
4. Amend Article 9 of the Military Criminal Code, Article 82 of the Code of Military Criminal Procedure, and any other domestic legal provisions that need to be amended in order to abolish the competence of the military police to investigate human rights violations committed by the military, and to transfer that competence to the civilian police.
150. The State submitted information on compliance with those recommendations of the IACHR on January 6, 2009. To date the petitioners have not submitted information on compliance with the recommendations by the IACHR.
151. As regards recommendation No. 1 supra, the State reiterated what is indicated in the 2007 Annual Report of the IACHR, in that 12 members of the military police and two rural workers were tried by the Tribunal de Jurados in relation to the facts of the case, and of these, three military police and the two farmers were convicted and received prison sentences. The State added that those convictions became res judicata in relation to all those convicted, and all are currently serving the sentences. In this vein, the State argues that it has carried out this recommendation.
152. As regards recommendation No. 2 supra, the State reiterated that it has encountered difficulties implementing it, considering the particularities of the case in relation to the number of victims. In this respect, the Commission notes that Report on the Merits No. 32/04 mentions 28 victims, 11 killed and 17 injured (Report on the Merits No. 32/04, para. 306). The State emphasized that the state of Rondônia published a law determining that compensation should be paid only to the next-of-kin of the deceased victims, yet due to the problems alluded to previously, those payments have not been made. The State did not submit any information regarding reparation for the victims identified in relation to violations of Article 5 of the American Convention and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.
153. On recommendation No. 3 supra, regarding measures of non-repetition, the State noted that the 625 families that were at the Santa Elina ranch on the day of the events were settled in the municipalities of Theobroma (535 families) and Cujubim (90 families), in the state of Rondônia. The Santa Elina ranch, the State reported, is in the process of being expropriated, based on the indicia of environmental crimes, and that proceeding is currently under review by the Brazilian Institute on the Environment and Natural Resources (IBAMA) and the Federal Public Ministry. The State also announced investment in infrastructure, sanitation, and health to benefit, in particular, the families affected by the Corumbiara Massacre. It also reported the implementation, in the state of Rondônia of the Balcony of Rights Program, whose objective is to provide legal, social, and psychological assistance to approximately 800 persons, especially those affected by the Corumbiara Massacre. In addition, the government of Rondônia created the Office of Integrated Management (Gabinete de Gestão Integrada – GGI), under the auspices of the State Secretariat for Public Safety, Defense, and Citizenship, seeking solutions to possible foci of violence, which includes agrarian conflicts, in an effort to avoid the recurrence of episodes such as what happened at Corumbiara.
154. The State also argued that it has taken a set of measures to prevent rural violence, such as the creation of the program “Disque Terra e Paz” (“Dial Land and Peace”); the program “Paz no Campo” (“Peace in the Countryside”), of the National Commission to Combat Violence in the Countryside; and the National Plan to Combat Violence in the Countryside. This plan includes 14 measures currently in the implementation stage, including the creation of federal and state courts specialized in agrarian conflicts, specialized prosecutors, specialized ombudsmen, and specialized police commissioners. In addition, the State emphasized the creation of the Ouvidoria Agrária Nacional (OAN: Office of the National Agrarian Ombudsman), in 2004, an organ in charge of preventing, mediating, and curbing agrarian conflicts. In this respect, the State exemplifies various cases in which the action of the OAN succeeded in preventing conflicts, for example, at the Córrego Fundo ranch (Minas Gerais), at the Jacaré-Curiango ranch (Minas Gerais), at the Mário Lago Encampment (Rio de Janeiro), at the Bom Sucesso ranch (Minas Gerais), and at the Campo Santo ranch (Paraná). In conclusion, the State emphasizes that the set of measures mentioned above has succeeded in diminishing the cases of rural violence, with a reduction in the number of homicides related to agrarian conflicts in Brazil, according to the OAN, from 42 in 2003, to two in 2008.
155. As regards recommendation No. 4 supra, the State argued that it has been partially implemented through Law No. 9,299, of 1996, and Constitutional Amendment No. 45, of 2004. In addition, the State indicated that two proposed laws (PLs) are before legislative branch that refer to that recommendation: PL No. 2014, of 2003, which establishes the jurisdiction of the Tribunal de Jurados to sit in judgment of members of the military in all willful crimes against civilians; and PL No. 1837, of 2003, which establishes that the crimes of homicide and bodily injuries committed by state military police against civilians fall under the jurisdiction of the regular courts. In addition, the State reported on the International Seminar on Human Rights and Administration of Military Justice, November 27 to 29, 2007, in Brasília, to foster internal discussion, in Brazil, of the jurisdiction of military courts for sitting in judgment of human rights violations.
156. In view of the foregoing, the IACHR concludes that the State has partially implemented the recommendations noted.
Case 11.634, Report No. 33/04, Jailton Neri da Fonseca (Brazil)
157. In Report No. 33/04 of March 11, 2004, the Commission concluded that: (a) the Brazilian State was responsible for the violation of the rights to personal liberty, humane treatment, life, special measures of protection for children, judicial protection, and judicial guarantees, enshrined, respectively, in Articles 7, 5, 4, and 19, to the detriment of Jailton Neri da Fonseca, and in Articles 25 and 8 of the American Convention in conjunction with Article 1(1) to the detriment of his next-of-kin; and that (b) the State violated its duty to adopt provisions of domestic law, in the terms of Article 2 of the American Convention, and also violated the obligation imposed on him by Article 1(1) to respect and ensure the human rights enshrined in the Convention.
158. The Commission made the following recommendations to the State:
1. That it make full reparations, in consideration of both moral and material damages, to the next-of-kin of Jailton Neri da Fonseca, for the human rights violations determined in this report, and, more specifically, that it do the following:
2. Ensure a full, impartial, and effective investigation into the crime conducted by nonmilitary organs, with a view to establishing responsibility for the acts related to the detention and murder of Jailton Neri da Fonseca and punishing the responsible parties.
3. Pay the next-of-kin of Jailton Neri da Fonseca compensation computed in accordance with international standards, in an amount sufficient to make up for both the material damages and the moral damages suffered on the occasion of his murder. Such compensation, to be paid by the Brazilian State, should be computed in accordance with international standards, and should be in an amount sufficient to make up for both the material damages and the moral damages suffered by the next-of-kin of Jailton Neri da Fonseca on the occasion of his murder and other violations of his human rights referred to in this report.
4. Amend Article 9 of the Military Criminal Code and Article 82 of the Code of Military Criminal Procedure, in addition to any other domestic legal provisions that need to be amended to abolish the competence of the military police to investigate human rights violations committed by members of the military police, and transfer that competence to the civilian police.
5. Adopt and implement measures to educate officers of the justice system and members of the police to prevent acts involving racial discrimination in police operations, and in criminal investigations, proceedings, or sentencing.
6. Adopt and implement immediate measures to ensure observance of the rights established in the American Convention, the Convention on the Rights of the Child, and the other national and international standards on the matter, in order to ensure that the right to special protection of children is enforced in Brazil.
159. The State submitted information on the implementation of the IACHR’s recommendations on December 24, 2008. To date the petitioners have not submitted information on the implementation of the IACHR’s recommendations.
160. The IACHR observes that the State only presented information on the recommendation relating to compensation for the victim’s next-of-kin, in the following terms: “the Procuraduria Geral, the organ that provides legal representation for the state of Rio de Janeiro, is taking steps vis-à-vis the Secretariat for Planning to verify the availability of resources for paying the compensation.”
161. Accordingly, similar to what it expressed in 2007, the IACHR concludes that the recommendations have yet to be carried out.
Cases 12.426 and 12.427, Report No. 43/06, Raniê Silva Cruz, Eduardo Rocha da Silva, and Raimundo Nonato Conceição Filho (Brazil)
162. On March 15, 2006, by Report No. 43/06, the IACHR approved a friendly settlement agreement on the “Castrated Boys of Maranhão.”
163. According to the friendly settlement agreement, the Brazilian State committed to taking the following measures:
1. Recognition of its international responsibility in the instant case. 2. Trial and punishment of those responsible. 3. Make symbolic reparations. 4. Pecuniary compensation. 5. Measures to avoid recurrence.
164. The State submitted information on implementation of the friendly settlement agreement on December 24, 2008, and on January 6, 2009. The petitioners submitted information on the implementation of that agreement on December 15, 2008, through the minutes of the meeting on implementation of the friendly settlement agreement held on October 27, 2008, with the presence of representatives from the State Council for the Defense of Human Rights (CEDDH), the State Council on the Rights of Children and Adolescents, and the victims’ families.
165. First, the IACHR clarifies that the friendly settlement agreement with respect to cases 12,426 and 12,427, in relation to the victims Rainiê Silva Cruz, Eduardo Rocha da Silva, and Raimundo Nonato, also ended up encompassing other boys who were castrated and murdered in the greater São Luís region, over a given time frame, as per the list verified at the meeting of the State Council for the Defense of Human Rights (CEDDH) and the State Council on the Rights of Children and Adolescents (CEDNA) of Maranhão. Consequently, the agreement includes comprehensive reparation for the families of 28 boys who were castrated and murdered.
166. With respect to the recognition of the international responsibility of the State (supra item 1), both parties agree that it was carried out, at a ceremony held December 15, 2005, with the presence of the Special Secretary for Human Rights of the Federal Government, the Governor of the state of Maranhão, and the petitioners and families benefited. On that same occasion, the Integrated Complex for Protection of Children and Adolescents was inaugurated, made up of the Special Police Station for Children and Adolescents, the Office of the Prosecutor for Children and Adolescents, and the Court for Children and Adolescents.
167. As regards prosecuting and punishing the persons responsible, the State reported that on October 23 and 24, 2006, Francisco das Chagas Rodrigues de Brito, who confessed and was accused of being the perpetrator of all the homicides in the case, was tried by the Tribunal de Jurados for the homicide of the adolescent Jonnathan Silva Vieira – one of the 28 boys included in this agreement – and was convicted and sentenced to a prison term of 20 years and 8 months. In addition, the State noted that other criminal proceedings related to the case are continuing to go forward against the same defendant: Proceedings nos. 808/2002, 1560/2004, 456/2002, 1204/2004, and 1206/2004, all scheduled to be heard by the Tribunal de Jurados by August 2009; as well as Proceedings nos. 1432/2004, 1501/2004, 1205/2004, 535/2004, 301/2004, and 246/2004, whose investigative stage has concluded. The petitioners did not contest that information.
168. As regards symbolic reparation, both parties agreed that it was carried out, and that as a result, during the event for the recognition of the international responsibility of the State, held December 15, 2005, a plaque was unveiled paying tribute to the 28 victims covered in the agreement, containing the following words:
To the memory of Alexandre de Lemos Pereira, Antônio Reis Silva, Bernardo da Silva Modesto, Bernardo Rodrigues Costa, Carlos Wagner dos Santos Sousa, Daniel Ferreira Ribeiro, Diego Gomes Araújo, Edivan Pinto Lobato, Eduardo Rocha da Silva, Evanilson Castanhede Costa, Hermógenes Colares, Ivanildo Povoas Ferreira, Jailson Alves Viana, Jonnathan Silva Vieira, Josemar de Jesus Batista, Julio César Pereira Melo, Laércio Silva Martins, Nerivaldo dos Santos Pereira, Nonato Alves da Silva, Rafael Carvalho Carneiro, Raimundo Luiz Sousa Cordeiro, Raimundo Nonato da Conceição, Rainiê Silva Cruz, Welson Frazão Serra, Alexandre dos Santos Gonçalves, Sebastião Ribeiro Borges, Jondelvanes Macedo Escócio, and Emanuel Diego de Jesus Silva: The pain of your losses imposes on us the commitment to guarantee the absolute priority and integral protection of all children and adolescents – International Agreement of the Organization of American States – OAS.
169. First, as regards the various elements included in the agreement with respect to material reparation, the State indicated that only 27 of the 28 families adhered to the terms of reference of this agreement, which was a fundamental condition for benefiting from the aspects related to material reparation. That reparation provided for the inclusion in low-cost housing programs, inclusion in social programs, including revenue transfer programs, and the payment of a special monthly pension, in the nature of compensation, in the amount of R$ 500,00 (five hundred reals) to each of the beneficiary families for a period of 15 years.
170. With respect to inclusion in housing programs, the State indicated that as of December 31, 2006, 21 families received their houses, located in the “Estrela Dalva” residential complex, and after requests from the beneficiaries, those properties underwent repairs to their physical structure. The other six families stated their desire for their houses to be built on their own lots, which the State responded to positively. The petitioners observed that some families have presented additional requests for repairs to the houses.
171. Regarding inclusion in social programs, both parties agreed that the families that presented the necessary requirements were included in the government income transfer program “Bolsa Família.” In addition, both parties agreed that by Law No. 8326, of 2005, as of April 2006, the families of the victims covered in the friendly settlement agreement began to receive a special monthly pension, as compensation, of R$ 500.00 (five hundred reals), for a period of 15 years.
172. As regards the measures of non-repetition listed in Report No. 43/06 (paras. 12-17), the Commission observes as follows: The State reported that the state of Maranhão was included in the Program of Referential Integrated Actions for Combating Sexual Violence against Children and Adolescents in Brazilian Territory (PAIR). In addition, Maranhão has implemented the State System for Fighting Sexual Violence against Children and Adolescents, as well as the Inter-Institutional System for Anti-Drug Actions (SIAD).
173. The State also emphasized that the state of Maranhão included the municipalities of São José de Ribamar, Paço do Lumiar and Raposa in the “Sentinel” Program, currently called Service of Struggle against Abuse and Sexual Exploitation of Children and Adolescents.
174. With respect to the measures of non-repetition listed in paragraphs 15(1), 15(2), 15(3), 15(4), 15(5), and 15(6) of Report No. 43/06, the State reported that they have been carried out. The document submitted by the petitioners also indicated that those measures are being carried out. In addition, as regards the measures of non-repetition listed at paragraphs 16(1) and 16(2) of Report No. 43/06, both parties reported that they are being carried out. On the measures included at paragraphs 16(3) and 16(4) of Report No. 43/06, referring to the construction of a secondary school in the area of Maiobinha, in Paço do Lumiar, and a secondary school and an elementary school in the Ciudad Operária neighborhood, in São Luís, both parties agreed on the following: In the area of Maiobinha, Paço do Lumiar, an already-existing school was expanded, adding a pavilion for secondary education, with 12 classrooms, a computer, science, and math lab, auditorium, and library. In addition, the secondary school has been built in the Ciudad Operária neighborhood, near the Universidade Estadual de Maranhão, with 12 classrooms, a computer and science lab, and a sports field; and the construction of the elementary school is in the tendering process.
175. In view of the foregoing, the Commission concludes that the State has fully carried out the friendly settlement agreement.
Case 12.001, Report No. 66/06, Simone André Diniz (Brazil)
176. In Report No. 66/06 of October 21, 2006, the IACHR concluded that the Brazilian State was responsible for violating the human rights to equality before the law, judicial protection, and judicial guarantees, enshrined, respectively, in Articles 24, 25, and 8 of the American Convention, to the detriment of Simone André Diniz. In addition, the Commission determined that the State had violated the duty to adopt provisions of domestic law, in the terms of Article 2 of the Convention, and also in violation of the obligation imposed by Article 1(1) to respect and ensure the rights enshrined in that instrument.
177. The Commission made the following recommendations to the Brazilian State:
1. Fully compensate the victim, Simone André Diniz, in both moral and material terms for human rights violations as determined in the report on the merits, and in particular,
2. Publicly acknowledge international responsibility for violating the human rights of Simone André Diniz;
3. Grant financial assistance to the victim so that she can begin or complete higher education;
4. Establish a monetary value to be paid to the victim as compensation for moral damages;
5. Make the legislative and administrative changes needed so that the anti-racism law is effective, in order to remedy the limitations indicated in paragraphs 78 and 94 of this report;
6. Conduct a complete, impartial and effective investigation of the facts, in order to establish and sanction responsibility with respect to the events associated with the racial discrimination experienced by Simone André Diniz;
7. Adopt and implement measures to educate court and police officials to avoid actions that involve discrimination in investigations, proceedings or in civil or criminal conviction for complaints of racial discrimination and racism;
8. Support a meeting with organizations representing the Brazilian press, with the participation of the petitioners, in order to draw up an agreement on avoiding the publicizing of complaints of racism, all in accordance with the Declaration of Principles on Freedom of Expression;
9. Organize government seminars with representatives of the judicial branch, the Public Ministry and local Public Safety Secretariats in order to strengthen protection against racial discrimination or racism;
10. Ask state governments to create offices specializing in the investigation of crimes of racism and racial discrimination;
11. Ask Public Ministries at the state level to create Public Prosecutor’s Offices at the state level specializing in combating racism and racial discrimination;
12. Promote awareness campaigns against racial discrimination and racism.
178. To date neither the State nor the petitioners submitted information regarding implementation of those recommendations by the IACHR.
179. Therefore, similar to its conclusion for 2007, the Commission concludes that the recommendations outlined are pending implementation. [TABLE OF CONTENTS | PREVIOUS | NEXT] |
