Case 11.417 (Marcos de Assis Ruben)  

          A.      Summary


          86.     According to the complaint received by the Commission in September 1994, military police agents Orlando Aparecido Garcia, Edison Donizati, and Waldemar José de Oliveira Tenório assassinated student Marcos de Assis Ruben, 23, in March 1988, in the city of São Paulo.


          87.     The petitioners report that the above-noted agents had answered a call to check into the case of a young man who was assaulting a young woman, intending to rape her.  On arriving in the vicinity of the locale indicated, the agents found Marcos with a young woman, and, presuming he was the rapist, detained him.  The victim was taken to a park on the outskirts of São Paulo, and killed with five gunshot wounds to the head.


          88.     In May 1988, the above-mentioned agents were accused of the aggravated homicide of Marcos de Assis Ruben and seven other persons, victims of crimes that occurred in similar circumstances.  At the time the complaint was lodged, the trial was pending a final decision from the Third Instance of Military Justice of São Paulo.


          89.     The victim’s parents initiated an action for compensation against the state, which was declared inadmissible by the Eighth Court (8a. Vara da Fazenda Pública)  of the state of São Paulo, and affirmed on appeal.


          B.       Processing before the Commission


          90.     The complaint in this case was received by the Commission in September 1994.  The Brazilian Government was informed of the same on December 20, 1994, and submitted its answer on June 15, 1995.  After this first response from the Brazilian State, the petitioner again submitted information to which the Government of Brazil, despite repeated requests, failed to respond.  In 1998, at its 98th session, the Commission approved the admissibility report for case 11.417, which was published in the Annual Report for 1997.


          C.      Position of the parties


          91.     On submitting the complaint in September 1994, the petitioner alleged that Marcos had been murdered in cold blood and arbitrarily by military police agents.  The same agents had been accused of the death of Marcos and seven other persons assassinated in very similar circumstances.  Nonetheless, despite the grave acts alleged against the accused, and despite the fact that seven years had elapsed since the date of the offense, the criminal inquiry has yet to conclude.  In this regard, the petitioner asserts violations of Articles XVII and XXIV of the American Declaration and Articles 8 and 25 of the American Convention.  Later, the petitioner alleged that eight years after the facts, the date for putting the accused on trial had not yet been set.


          92.     The Government, for its part, in June 1995 answered that it admitted the criminal inquiry phase had not been carried out, reporting that the date of June 5, 1995, had been set for hearing defense testimony.  At no time, however, did the Government of Brazil deny the facts alleged by the petitioners, nor did it comment on the merits of the case.


         D.      The Commission’s analysis


          1.       Right to life


          93.     Of the evidence collected, the Commission reaches the conclusion that the military police agents accused extrajudicially executed Marcos de Assis Ruben.  The Court of Justice of São Paulo state so indicated, in ruling on the respective action for compensation, when it concluded that the military police agents involved in the death of Marcos had abused their authority.


          94.     In the large number of inquiries initiated against police agents Orlando Aparecido Garcia, Edison Donizeti, and Waldemar José de Oliveira Tenório—in each case concluding that they were guilty in relation to the death of eight persons--various items of evidence were introduced of the excessive violence of their action.  The officials who participated in the investigation and the Public Ministry were fully convinced of the liability of the accused, indeed their abusive acts were even recognized by the Appeals Court of the state of São Paulo, as appears from the ruling in the action for compensation.


          95.     The wounds--five gunshot wounds to the victim’s head--also attest to his execution, with no possibility whatsoever of defending himself.  The witness statements also contribute to this conclusion.


          96.     Of all the evidence presented, the Commission reaches the conclusion that the Brazilian State denied the right to life of Marcos de Assis Ruben, enshrined at Article I of the American Declaration.


          2.       Procedural guarantees and due process of law


          97.     Eight years after the complaint was filed, the criminal proceeding was still awaiting a trial date. In 1995, the Brazilian Government admitted that it had not even concluded the criminal inquiry stage, seven years after the facts.


          98.     The excessive delay in the procedures is contrary to the standards required for effective process.  The time elapsed was unreasonable, failing to respect the procedural guarantees and the principle of due process of law guaranteed in the American Convention.  The Commission considers that the time elapsed without reaching a final decision on the case is excessive.  Therefore, it understands that the Brazilian State is responsible for violating Articles 8 and 25 of the American Convention.



          Case 11.412 (Wanderlei Galati)


          A.      Summary


          99.     According to the complaint presented to the Commission in September 1994, Wanderlei Galati, a mechanic 28 years of age, was killed after being beaten repeatedly with the butt of a revolver by military police agent Ademar Cavalcante Dourado, on August 26, 1983, in the city of São Paulo.


          100.   Mr. Galati was allegedly killed after his car collided with the vehicle of the above-named police agent.  According to the complaint, even though Mr. Galati accepted liability for the accident and agreed to pay compensation for the damages caused, he was assaulted and killed by Ademar Cavalcante Dourado.


          101.   On December 2, 1983, the military police agent was accused before the Military Justice of São Paulo state.  The verdict was handed down on October 15, 1991; Ademar Cavalcante Dourado was acquitted for insufficient evidence.  Later, despite his crime, he was promoted in his police career.


          102.   The victim’s mother filed an action for compensation for moral and material damages against the state of São Paulo; it was the subject of a judgment by the Second Court (2a Vara da Fazenda Pública)  of the state of São Paulo, and affirmed by the Court of Appeals.


          B.       Processing before the Commission


          103.   The complaint was received by the Commission in September 1994 and on December 13, 1994, it was forwarded to the Government of Brazil, which answered in June 1995.  Later, the petitioner and the Government submitted information. On April 25, 1996, the Commission reiterated its request for final observations to the Government.


          104.   On July 30, 1996, the Commission informed the petitioner that with the final statement by the Government, the procedure as per the Regulations was concluded.  In 1998, during its 98th session, the Commission approved the admissibility report in case 11.417, which was published in the Annual Report for 1997.


          C.      Position of the parties


          105.   The petitioner alleged that Wanderlei Galati had been summarily executed by a military police sergeant who was a traffic supervisor, simply for having caused slight damage to his vehicle.  The victim mistakenly entered an avenue heading the wrong way, and scraped the police car that had blocked the road to stop him.  The police agent reacted violently.  The policeman identified himself as such, had Wanderlei get out of his car, and attacked him, beating him in the head repeatedly with the butt of his police-issue weapon, while Wanderlei and those who were with him begged “for the love of God” that he not hit him any more.  Meanwhile, he threatened the persons with him not to get out of the vehicle to assist him. An ambulance passing by picked up the victim, but the policeman who beat him did not allow the driver to take him to the hospital until police reinforcements arrived.  Finally, upon arrival at the hospital, he was pronounced dead.  The complaint presented to the Commission in 1994 argues that five years after the incident, testimony had yet to be taken from the witnesses for the accusing party, as the hearing had been postponed several times and for various reasons, including the promotion of the accused into the officer corps of the police during the period when there were hearings for taking witness testimony.


          106.   According to the petitioner, when a verdict was finally handed down on October 15, 1991, the accused was acquitted for insufficiency of evidence, despite the many eyewitness statements. The acquittal, in turn, was signed and published only three years after it was handed down, which made it impossible for the Public Ministry to file appeals, with the clear intent of evading punishment.  So it took eight years to conclude the first part of the proceeding, and 12 years after the death of Wanderlei Galati, there had been no final decision regarding the circumstances of the case.


          107.   The petitioner argued that the unjustified partiality and sluggishness of justice in the case violated Articles XVIII and XXIV of the American Declaration and Articles 8(1) and 25 of the American Convention.


          108.   In October 1996, the petitioner reported that he could not get information from the military justice.


          109.   In its response, the Brazilian Government reported that proceedings had been opened before the military courts to investigate the death of Wanderlei Galati, in which the accused was military police agent Ademar Cavalcante Dourado.  Later, he reported that the accused in that proceeding had been acquitted unanimously, and that the case is now in the hands of the Public Ministry, to present reasons for an appeal, and that the action for compensation had been the subject of a final judgment, as a monthly pension was awarded Wanderlei’s mother until he would have turned 65 years of age. Nonetheless, the facts narrated in the complaint were not denied nor were the merits of the case contested at any time.


         D.      The Commission’s analysis


          1.       The right to life


          110.   The various witnesses who gave testimony in the proceedings confirm that after the collision Wanderlei offered to pay for the damage caused promptly, without in any way acting aggressively towards the agent accused.  Ademar Cavalcante Dourado, in contrast, beat Wanderlei many times, to the point of causing his death.


          111.   The declarations by the police agent, who was heard during the inquiry and later at trial, suggest how shaky his assertion is. First, he said that the victim injured himself, in an accidental fall upon getting out of his car; then, that the injuries had been the result of the collision.


          112.   The other persons who were in the car are unanimous and offer consistent testimony that the assault on Wanderlei was gratuitous and totally disproportionate.


          113.   In addition is the incontestable fact that Wanderlei’s death was due to contusions on the head made by the police-issue weapon, as shown by the medical examiner’s report. The detailed description of the lesions is totally incompatible with the injuries that normally occur in traffic accidents, and this was stated by the Court of Justice of the state in a civil action for compensation, considering state responsibility to arise from the authority vested in the accused and the nature of the crime.


          114.   In the face of such evidence, the Commission must conclude that Wanderlei Galati was the victim of an intentional homicide, the result of disproportionate acts with no motivation by military police agent Ademar Cavalcante Dourado involving state responsibility, both because of the authority vested in the criminal, his identification as a police agent vis-a-vis the victim and the persons accompanying him at the time of the act, and the orders he gave them and the ambulance driver, using the authority of his status as a police agent, and his police-issue weapon, to beat the victim to death by successive blows to the head.  Accordingly, the Brazilian State has violated the right provided for in Article I of the American Declaration.


          2.       Procedural guarantees and due process of law


          115.   All of the evidence collected during the investigations and in the course of the judicial proceeding sufficed to convince the marshal and the prosecutor who participated in the criminal action, as well as the judge and the court that decided the compensation action.  The Commission also understands that the indicia presented are grounds that show the materiality and perpetrator of the offense committed by Ademar Cavalcante Dourado.


          116.   Yet despite the clear evidence presented at trial, the military courts of the state of São Paulo acquitted Ademar Cavalcante Dourado for insufficient evidence.  Not only that, they also clearly and blatantly delayed the proceeding to the point that it failed to publish the acquittal at trial to prevent it from being appealed, and with the risk that the statute of limitations would run.  And throughout, the criminal was not only free, but was given a promotion by the military police.


          117.   The Commission understands that the statements and expert evidence presented sufficed for a decision on the merits, a decision to which Wanderlei’s family members had a right. In this regard, the Brazilian State did not guarantee the victims access to an effective judicial remedy or to a proceeding with respect for the internationally recognized standards.  Having denied them that right, the Government of Brazil violated Articles 8 and 25 of the American Convention.


          Case 11.415 (Carlos Eduardo Gomes Ribeiro)


          A.      Summary


          118.   According to the complaint presented in September 1994, on May 3, 1989, Carlos Eduardo Gomes Ribeiro, 19, was alleged to have been assaulted and wounded by military police agents Donizetti Aparecido Bezerra da Silva, Dorival Bernardo de Senna, Marcos Aparecido Correa Cesar, and Mauro Garofo.


          119.   According to the complaint, Cláudio was with two other friends when they were approached by military police agents who, under the pretext of searching them, assaulted them physically and psychologically.  It appears in the record that the three youths were forced into a vehicle in which they suffered new acts of brutality and taken to the police station, where they were warned that they should say nothing of what happened.  Carlos Eduardo was the only one who came forth to report what had happened, which he did immediately.


          120.   On July 6, 1990, the police agents were accused by the office of the prosecutor. The hearings were put off time and again, and set for very long afterwards, such that on July 29, 1994, without having resolved the case, the second instance of Military Justice decreed that the statute of limitations had run out on the criminal action by the State, thereby extinguishing all possibility of punishing the accused.


          121.   On April 13, 1994, the victim filed a compensation action against the State, which was referred to the Seventh Court  (7a Vara da Fazenda Pública) of the state of São Paulo.  As of the date of the complaint, the Seventh Court had not even been summoned in that action, and a decision was being awaited as to whether the victim would be afforded free legal assistance.


          B.       Processing before the Commission


          122.   The complaint was received in September 1994. The pertinent parts of the complaint were forwarded to the Brazilian State in December 1994, and it answered in June 1995.  In September and November 1995, and in April and September 1996, the Commission requested additional information from the Government, but received no reply.  The case was later admitted in 1998, as appears in admissibility report 17/98.


          C.      Position of the parties


          123.   The petitioner alleged in the complaint that Carlos Eduardo was arbitrarily attacked and detained by military police agents, and that the statute of limitations had run on the respective criminal proceeding due to the inattention of the authorities acting in the case.  Petitioner asserted that the running of the statute of limitations on criminal proceedings in the military courts is common in similar cases of bodily injury, due to the negligent sluggishness with which they are processed.  Finally, the petitioner declared that the extinction of the criminal action in the case was the responsibility of the military courts, which did not perform their function, thereby guaranteeing impunity for the persons  responsible for violating the victim’s fundamental rights.


          124.   The Government, in its reply, reaffirmed the information on the proceeding presented by the petitioner, and merely confirmed that the criminal action had extinguished with respect to the accused.  Nonetheless, the State at no time addressed the issue of whether a violation of the victims’ physical integrity and the judicial guarantees had been committed, as alleged by petitioners.


          D.      The Commission’s analysis


          1.       Right to physical integrity


          125.   The examination of the corpus delicto confirmed the injuries suffered by the victim. All the witnesses heard in the proceedings who had witnessed the events allege that indeed the accused police agent made excessive and unnecessary use of physical force against the victim, who had not committed nor was about to commit any crime.  The defense did not present a single witness to support the agents’ version as to the motive for approaching them; therefore, detaining the youths was unjustified.


          126.   This information led the Commission to the conclusion that the military police agents of São Paulo state violated the physical and psychological integrity of Carlos Eduardo Gomes Ribeiro, triggering state responsibility for violating Article I of the American Declaration.


          2.       Procedural guarantees and due process of law


          127.   The information presented shows that the judicial process was slow and that this was due to the inefficiency of the Brazilian judiciary.  Contributing to the delay was the repeated postponement of hearings, and the leniency of police witnesses in coming forth to give testimony.  The questioning of the accused did not happen until two years after the facts, and the witnesses were heard four years after the crime.


          128.   These attitudes resulted in the running of the statute of limitations on the criminal action of the State, and the consequent extinction of the possibility of punishing the accused.  This being the case, the victim was denied the right to the trial, judgment, and sentencing of those who offended him.  Carlos Eduardo was not guaranteed a prompt and effective process for determining his rights.  In this regard, the Brazilian State violated Articles 8 and 25 of the American Convention.


          3.       Offer of friendly settlement


          129.   On several occasions, the Commission made itself available to the State and the petitioners in the various cases to initiate the friendly settlement process provided for in Articles 48 and 49 of the American Convention, without having received an affirmative response from the parties. That offer was reiterated in joint admissibility report 17/98, once again granting a period of 30 days, without receiving any response.




          130.   In the cases described above, the petitioners allege violations of Articles I (right to life, liberty, security, and integrity of the person), XVIII (right to justice), and XXIV (right to petition) of the Declaration, and Articles 8 (right to a fair trial) and 25 (judicial protection) of the American Convention, in conjunction with Article 1(1) of the same (obligation to ensure and respect the rights established in the Convention).


          131.   In all the complaints, persons who did not commit nor were involved in committing any crime were found to have been approached aggressively, without any motive, by military police agents.  The information also indicates that those persons were killed or suffered grievous injuries as a result of the actions of those public agents, which were at least disproportionate.


          132.   In its statements, the Government of Brazil did not refute the facts presented by the petitioners.  This being the case, the descriptions presented by the petitioners are considered by the Commission to be true and unchallenged, in addition to coinciding with the rest of the evidence before the Commission, including copies of domestic judicial proceedings.


          133.   All the cases occurred in the city of São Paulo, and involved acts by agents of the Military Police of São Paulo state.  The facts, in addition to denoting the violence with which the agents of that police force act, demonstrate the impunity that stems from the delayed, partial, and ineffective action of the military justice system, which at the time was responsible for investigating, prosecuting, and imposing punishment for the crimes committed by police.


          134.   In the view of the Commission, based on the analysis of the information available on the issues analyzed, one can only reach the conclusions set out below.  As the Commission already indicated in its admissibility reports on these cases,[3] it is competent to hear them because they address alleged violations of the rights recognized in the Declaration, pursuant to Articles 26 and 51 of its Regulations,[4] and with respect to those recognized in the Convention, for violations or the continuing refusal to recognize rights after its ratification by Brazil, in particular Articles 8 and 25 (right to due process of law and judicial guarantees) in relation to Article 1(1) of the Convention.


Responsibility of the State in relation to the acts or omissions of its organs, agents, and member states of the Federation


          135.   Article 1(1) of the Convention clearly establishes the obligation of the state to respect the rights and freedoms recognized in it and to ensure the full exercise thereof, such that any violation of the rights recognized in the Convention that may be attributed, according to the norms of international law, to the act or omission of a public authority, is an act giving rise to state responsibility.[5] The American Declaration sets forth at Article XVIII the right to judicial guarantees for protection against acts of the authority, and indicates in its preamble that the legal and political institutions of the States have as their main purpose the protection of human rights.}


          136.   According to Article 28 of the Convention, when a State party is constituted as a federal state, as is Brazil, the federal government shall answer, internationally, for the acts of the entities that make up the Federation.  The cases considered here involve alleged human rights violations by agents of the military police of the state of São Paulo.


Right to life, liberty, security, and physical integrity (Article I of the Declaration)


          137.   Article I of the Declaration provides:  “Every human being has the right to life, liberty and the security of his person.”  Victims Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, all of them, under 30 years of age at the time of their death, were workers or students who were approached in the course of their routine activities and extrajudicially executed by military police agents.  Cláudio Aparecido de Moraes, Carlos Eduardo Gomes Ribeiro, Celso Bonfim de Lima, and Marcos Almeida Ferreira suffered attacks on their lives causing injury to their personal integrity. Those violations occurred in various incidents from March 1982 to August 1989.


          138.   The Commission must consider whether the action of the public safety officers that cost the life or physical integrity of the victims was taken out of a need to prevent a greater harm, or involved legitimate self-defense.  In so doing, consideration was given[6] to the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the United Nations, which clearly define those cases in which the use of such force is legitimate.[7] Although the State has not invoked this argument in its defense, the Commission understands that it should make reference to it.  


          139.   In none of the eight cases in consideration is there any evidence supporting the acceptability of force in the terms of the principles mentioned, nor any evidence that the youths shot at were armed or constituted a threat of death to the agents or other persons. To the contrary, in the cases in question there is testimony that the victims had not even committed nor were about to commit any illegal act.  This indicates that the police action, more than disproportionate, was unjustified.


          140.   The data provided indicate that in all the cases in which the bodies were not hidden, the police agents simulated direct confrontations between the victims and the police force, even alleging that there had been exchanges of gunfire to cover up their own gratuitous acts of violence. One can observe that in eight cases examined here, five persons were killed and three were injured, a chilling balance even in confrontations, which in these cases did not occur, as has been proven in court.  This number is in agreement with investigations done in Brazil, cited by the Commission in its general reports on Brazil, that indicate that in cases of confrontation between police agents and civilians, the number of deaths is always far greater than the number of wounded, an indication that in general the Brazilian police “shoot to kill,” and not just to subdue suspects.


          141.   The agents accused allege that they had mistaken the victims, in several instances, for persons accused or wanted for committing criminal acts, to justify their own action.  Nonetheless, even were this the case, the evidence shows the most absolute disdain for the presumption of innocence, and that the victims were not even able to defend themselves in any way, nor were they taken to a police station for the appropriate processing; and the testimony and medical examiner’s opinions verify summary executions or summary violations to integrity. 


          142.   The cases examined here are extremely grave, as it was shown that the investigations concluded, as indicated, that there were no confrontations between the youths and the police agents.  The victims were not committing criminal acts, and their deaths occurred for no apparent reason (as in the cases of Clarival and Delton) or for absolutely futile motives (Wanderlei Galati), the victims beings defenseless, under the control and custody of the police.  The evidence presented indicates the arbitrary nature of the approach by the police and of the assaults, whether fatal or non-fatal.


          143.   The circumstances in which the crimes committed by the police occurred indicate a general situation of unsuitable, out-of-control, and undisciplined action on the part of the persons entrusted with maintaining order and security in the state of São Paulo, and the conscious and spontaneous practice of acts of brutality.


          144.   The period covered by the eight cases analyzed here (1982-1989) demonstrates that situation of violence.  It was found that in one of these cases--that of Marcos de Assis Ruben--the police agents accused were alleged at the same time to be responsible for the killings of seven other persons, in similar circumstances.  These data confirm the conclusion that the arbitrary detention and execution by the military police agents was a common practice in the state of São Paulo during that period.


          145.   The Commission has spoken out in previous cases against such practices, which constitute one of the most abominable systematic violations of the right to life and personal integrity, and entails breach by the State of its obligation to ensure the rights of its citizens.  On analyzing these cases, the Commission considered as key grounds for reaching a decision the statements and evidence that came out in the respective judicial proceedings.  The Commission recalls the general situation to make it clear that these are not isolated cases or anomalies, but rather examples of a systematic attitude adopted at the time by certain police agents.[8]


          146.   On the basis of the statements and evidence that appear in the case files and which were described briefly, the Commission considers that there is clear and convincing evidence as a firm basis for concluding that police agents of São Paulo violated the right to life of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, Wanderlei Galati, and Cláudio Aparecido de Moraes, and the right to personal integrity of Carlos Eduardo Gomes Ribeiro, Celso Bonfim de Lima, and Marcos Almeida Ferreira, which constitute violations of Article I of the Declaration by the State.


          Right to a fair trial and judicial protection (Articles 8 and 25)


          147.   Brazil deposited its instrument of accession to the American Convention on September 25, 1992.  The judicial proceedings related to the cases analyzed here took place prior to that date, and make reference to crimes committed in the late 1980s.  Nonetheless, the judicial proceedings continued for several years after entry into force of the Convention for Brazil, and in some cases they still continue.  A situation such as this, that starts out as a violation of Article XVIII of the Declaration, and then fits within the violations that are the subject of Articles 8 and 25 of the Convention, has repeatedly been interpreted by the Commission as a continuing violation.  Based on this understanding, the Commission considers that the guarantees provided for therein apply to the proceedings pending in each member state as of the date of entry into force of the Convention for that member state.  As clarified in its combined admissibility report on the eight cases analyzed here, the Commission is competent, in all of them, to decide on violations of Articles 8 and 25 of the American Convention.[9]


          148.   Article XVIII of the Declaration states that:


Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.


          Along the same lines, Articles 8 and 25 of the Convention give all persons the right to access to judicial remedies when their rights are violated, and to be heard by a competent authority or court. Article 25 of the Convention provides:


Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.


          The jurisdiction of the military justice system


          149.   In all of these cases the military justice system has been involved in the investigation, indictment, and prosecution.  This happens because, as the Commission noted in its 1997 special report:


The state military justice system has the authority to try and judge members of the “military” police accused of committing crimes, defined as military crimes, against the civilian population. This jurisdiction is governed by military criminal law (Military Penal Code, CPM), exclusive to military personnel, which contains substantive penal standards and constitutes “a set of legal provisions to ensure the accomplishment of the main purposes of military institutions, whose primary objective is the defense of the nation.” In this jurisdiction, “rank and discipline prevail.”[10] It is also regulated by the Code of Military Penal Procedure (CPPM), which contains formal or procedural provisions. The new law 9299/96 places under ordinary penal jurisdiction cases of voluntary crimes against life, but maintains intact the rest of the jurisdiction of the military justice system with regard to the police.11]


This is a special legal system, with its own principles and guidelines, in which most of the provisions apply only to military personnel and civilians who commit crimes against military institutions, unlike the ordinary penal system, which is applicable to all citizens.[12]


150.   The same jurisdiction lies with respect to the power to bring a public criminal action and to further the investigation:


As a legacy of its creation under the military regime, the State Military Public Ministry has jurisdiction to file public criminal charges before the military courts, and also has, among others, the power to institute the military police investigation and to exercise external control over the “military” police activity. This represents, in the view of the Commission, a critical breakdown in the system of guarantees of police action, for it wrests from the civilian public ministry common police control activities (entrusted to the “military” police), which are precisely the ones to whom are attributed the largest number of human rights violations.


          151.   The Commission indicated in the same special report that this special jurisdiction for the police came about during the period of military rule in Brazil, in 1977, by a constitutional amendment (Nº 7, of 1977), and in its wake the Federal Supreme Court changed its view and considered that the state-level military justice system had jurisdiction to judge the “military” police.  The Commission then indicated that:


This fundamental change in the jurisprudence of the Federal Supreme Court resulted in an increase in the crimes committed by “military” police with impunity. [Chapter 3, par. 67.]


          152.   As indicated at that time:


Military court cases are often delayed for years,[13] due to the heavy workload,[14] the scarcity of judges and prosecutors, excessive red tape, delays, etc. The Commission has found that the courts tend to be indulgent with police accused of human rights abuses and other criminal offenses, thereby allowing the guilty to go unpunished.


In this climate of impunity,[15] which breeds violence by the “military” police corps,[16] the police officers involved in this type of activity are encouraged to participate in extrajudicial executions, to abuse detainees, and to engage in other types of criminal activity. The violence has even spread to the prosecutors who, when they insist on continuing investigations into the crimes committed by the “military” police, have been threatened and even subjected to death threats. It is also not uncommon for witnesses summoned to testify against police officers on trial to receive intimidating threats.[17]


In a letter addressed to the Commission in 1996, the Santo Dias Center stated, in this regard:


In military investigations (inquiries), officially carried out by the organs of military justice, the bias in favor of incriminated police officers in most cases is so flagrant that it turns the victims into criminals. It is also very common to intimidate witnesses, whose court depositions are taken in the presence of the accused police officers. Under such conditions, it is not surprising that so many investigations are dismissed on grounds of insufficient evidence.... If this stage is completed and charges actually filed or admitted, new difficulties arise in the proceedings, which are deliberately slow and plagued with delays: deferred establishment of the councils, repeated postponements for minor procedural problems, etc.


                   Thus, it is not surprising to find proceedings[18] dragging on for four or five years or indefinitely, allowing enough time for the events to be forgotten by the press and the public. After such a long time, the victims' families lose hope, witnesses move away, and the evidence disappears.[19]


          153.   The Commission reiterates its position that trying common crimes as though they were service-related offenses merely because they were carried out by members of the military violates the guarantee of an independent and impartial court.  In grounding its argument, it invoked a pronouncement by the United Nations Human Rights Committee,[20] the third and fifth Basic Principles on the Independence of the Judiciary of the United Nations; Article 16(4) of the Standard Minimum Rules on Human Rights in States of Emergency (Paris, 1984); and, finally, the doctrine of the Inter-American Commission.[21]  



With respect to the investigation, trial, and punishment in the cases under study


          154.   As the Commission noted earlier, when, as in the cases of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, the victim is not in a position to seek judicial reparation, the right to do so is necessarily transferred to his family.  The Commission concluded that the victims and/or their families have the right to a judicial investigation, under the responsibility of a court of criminal justice, for the purpose of establishing liability and punishing the persons guilty of committing human rights violations.  See, in general, Reports Nº 28/92 (Argentina) and 29/92 (Uruguay), from the Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, doc. 14 corr. 1, of March 12, 1993, pp. 51-53 and 169-174.  That right emanates from the State’s obligation “to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”  Case of Velásquez Rodríguez (Merits), supra, par. 174.[22]


          155.   The Inter-American Court of Human Rights ruled as follows in relation to the state’s obligation to investigate incidents that violate human rights protected by the Convention:


The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[23] [Case of Velásquez Rodríguez (Merits), supra, par. 177.]


          156.   The petitioners reported that the judicial authorities, for lack of diligence, did not take measures to follow through on the prosecution of the above-mentioned crimes, despite the clear evidence in the statements by victims and witnesses and the results of the forensic tests clearly indicated that grave offenses had been committed.


          157.   The proceedings were extremely slow; it was found that hearings were repeatedly suspended and put off, evidence was deemed inadmissible, and several procedural acts were annulled, which led to excessive sluggishness in the procedures.  This meant that in several cases the trial took place several years after the crimes had been committed, and that some of the witnesses testified to events they had witnessed more than five years earlier.  The passage of so much time tends to render judicial protection ineffective.


          158.   Articles 8 and 25 of the American Convention establish that the rights to a fair trial and judicial protection, ensured by the State pursuant to this international instrument, must materialize in a reasonable time.  To determine reasonability,[24] the Commission must proceed to analyze the police investigation in question in light of the totality of circumstances.


          159.   The European Commission on Human Rights and the European Court of Human Rights, like the Inter-American Commission, established a series of criteria or considerations that should be borne in mind when determining what constitutes unwarranted delay in the administration of justice, “which shall not hinder only one of them from having weight, if appropriate.”[25]  These are the criteria established by the doctrine to determine reasonability of the time: 1. The complexity of the case. 2. The conduct of the injured party in terms of his or her cooperation in the development of the proceedings. 3. The manner in which the investigative phase of the proceedings was conducted. 4. The action of the judicial authorities.


          160.   For the purposes of adequately analyzing the complexity of the cases, one must refer to what they are about: violations of the right to life and personal integrity.  Accordingly, one must evaluate objectively the characteristics of the offenses committed and the personal conditions of their alleged perpetrators.  In just one case there are two alleged offenses, homicide and attempted homicide. In all the other cases, the proceedings involved the occurrence of a single criminal act.  In all the cases the offenses were carried out in well-defined and simple circumstances, with testimony from several witnesses and the expert reports from the office of the medical examiner in evidence.  These characteristics indicate that there was no complexity in the cases under consideration.


          161.   According to information the Commission has received, some of the criminal proceedings are still pending a final judicial decision.


          162.   In Brazil, the criminal offenses in the eight cases analyzed here are prosecuted by public criminal actions that can be brought exclusively by the Military Public Ministry; the injured parties have no means of intervening to move the proceedings forward.


          163.   The sluggishness of the investigations and the fact that it is the military police themselves who are entrusted with them suggest irregularities in the pertinent police inquiries and in the investigative stage.


          164.   Finally, the already-mentioned annulment of procedural acts and the repeated suspension of hearings, the delay in publication of the judgments, among other factors, demonstrate the negligence and inefficiency on the development of the criminal procedures by the judicial authorities involved.


          165.   In view of all the foregoing, the Commission considers that the ineffectiveness, negligence, or omission in the development of the investigations and proceedings by the military justice system of São Paulo, which culminated in an unwarranted delay in the conclusion of the proceedings, not only exempts the petitioners from the obligation to exhaust domestic remedies, as appears in the part on admissibility, but is also a violation of Article XVIII of the Declaration and Articles 8 and 25 of the Convention, as it has deprived the victims’ families the right to obtain justice within a reasonable time by means of a simple and prompt remedy.  Article 1(1) of the Convention establishes that the States party undertake to respect the rights and liberties recognized in it, and to ensure their free and full exercise for all persons under their jurisdiction.[26]




          166.   The Commission approved Report Nº 74/00 pertaining to this case on October 3, 2000, at its 108th session.  This report was transmitted to the State on November 1, 2000, and it was granted a period of two months to implement the recommendations made.  The Commission informed the petitioners of the approval of a report in accordance with Article 50 of the Convention.  Inasmuch as the period granted has expired and the Commission has not received a response from the State regarding these recommendations, the IACHR adopts the view that these recommendations have not been implemented.




          167    The Inter-American Commission on Human Rights reiterates to the State the following conclusions:


          1.       The Commission reiterates its conclusion that it is competent to hear this case and that the complaint is admissible pursuant to Articles 46 and 47 of the American Convention.


          2.       Based on the foregoing data and analysis, the Commission reiterates its conclusion that the Federative Republic of Brazil is responsible for violating the right to life and personal security and integrity (Article I of the American Declaration), and the right to a fair trial and to judicial protection (Article XVIII of the Declaration and Articles 8 and 25 of the Convention), and is in breach of the State’s obligation to ensure and respect the rights recognized in the American Convention on Human Rights (Article 1(1)) in relation to the homicide of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and in relation to the assaults and attempted homicides of Cláudio Aparecido de Moraes, Carlos Eduardo Gomes Ribeiro, Celso Bonfim de Lima, and Marcos Almeida Ferreira, all perpetrated by military police agents of the state of São Paulo, as well as the failure to effectively investigate and punish the persons responsible.


          VI.      RECOMMENDATIONS


          168.   The Inter-American Commission on Human Rights recommends to the Brazilian State:


          1.       That it carry out a serious, impartial, and effective investigation into the facts and circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and of the assaults on and attempted homicides of Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that it duly prosecute and punish the persons responsible.


          2.       That such investigation include the possible omissions, negligence, and obstructions of justice that may have resulted from the failure to convict the persons responsible in a final judgment, including the possible negligence and mistakes of the Public Ministry and of the members of the judiciary who may have decided to waive or reduce the corresponding sentences.


          3.       That the necessary measures be taken to conclude, as soon as possible and in the most absolute legality, the judicial and administrative proceedings regarding the persons involved in the above-noted violations.


          4.       That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.


          5.       That the necessary measures be taken to abolish the jurisdiction of the military justice system over criminal offenses committed by police against civilians, as proposed by the original bill, introduced in due course, to repeal Article 9(f) of the Military Criminal Code, and to approve, to take its place, the single paragraph proposed in that bill.[27]


          6.       That the Brazilian State take measures to establish a system of external and internal supervision of the military police of São Paulo that is independent, impartial, and effective.


          7.       That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.




          169.   The Commission transmitted the report adopted pursuant to Article 51 of the American Convention to the State and to the petitioner on March 12th, 2001, and gave the State one month to submit information on the measures adopted to comply with the Commission’s recommendations.  The State failed to present a response within the time limit.


170.   Pursuant to the foregoing considerations, and in conformity with Article 51(3) of the American Convention and Article 48 of its Regulations, the Commission decides to reiterate the precedent conclusions and recommendations, to make this Report public, and to include it in its Annual Report to the General Assembly of the OAS. The Commission, pursuant to its mandate, shall continue evaluating the measures taken by the Brazilian State with respect to the recommendations at issue, until they have been fully fulfilled.


          Approved on April 16, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Robert K.Goldman, Peter Laurie, and Julio Prado Vallejo Commissioners.

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[3] IACHR, Report 17/98, published in its 1997 Annual Report.

[4] See Inter-American Court of Human Rights, Advisory Opinion 10, para. 45, July 14, 1989, “Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights.” See also IACHR, Report 24/98, on continuing violations and the applicability of the American Convention.

[5] Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, par. 164.

[6] Although such principles cannot be taken as a standard contemporaneous with the events, as they are dated 1990, and the violations examined in this report occurred in the late 1980s, they shall be considered in this case as general principles of international law at the time, as they were already generally accepted, and will be used in interpreting and analyzing the eight cases.

[7] United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba,  August 27 to September 7, 1990.  The following clauses apply, among others:

Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

[8] IACHR, Report on the Situation of Human Rights in Brazil. Chapter on Police Violence and Impunity, 1997.

[9] IACHR, Report 60/99, Case 11.516 (Ovelário Tames).

[10] See Vicenzo Manzini, Diritto penale militare, Padua (1932), year X, p. 1 and Idelfonso M. Martínez Muñoz, Derecho Militar y Derecho Disciplinario Militar, Buenos Aires (1977), Nº  20 and 87, pp. 36 and 194, op. cit. by Jorge Alberto Romeiro, Curso de Direito Penal Militar (Parte Geral), p. 1, Ed. Saraiva (1994).

[11] A bill already adopted by the Senate expands the jurisdiction of the regular courts, including other crimes committed by the military police. The bill is not limited to conspiracies or crimes of extortion crimes.

[12] Reinhart Maurach, Deutsches Strafrecht, ein Lehrbuch, Allgemeiner Teil, Karlsruhe (1971), § 8, IV, c, pp. 93‑4, “O direito penal especial de maior importância prática é o direito penal militar” (Das praktisch wichtigste Sonderstrafrecht ist das Wehrstrafrecht) Manzini, Diritto penale militare, cit., p. 2; Guiseppe Ciardi, Istituzioni di diritto penale militare, Rome, n.d., v. 1, p. 12; Rodolfo Venditti, Il diritto penale militare nel sistema penale italiano, Milan (1978), pp. 23‑5; and Heleno Cláudio Fragoso, Lições de direito penal, General Part, Rio de Janeiro, Forense (1980), p. 5; op. cit. Curso de Direito Penal Militar, General Part, Jorge Alberto Romeiro.

[13] It is noted that at year-end 1992, there were 14,000 cases pending in four courts of São Paulo for which there was only one prosecutor.  HUMAN RIGHTS WATCH/AMERICAS, Final Justice, supra note 18, p. 41 (1994).

[14] Embassy of Brazil, Society, Citizenship and Human Rights in Contemporary Brazil, p. 19 (1995).

[15] In March 1982, the Brazilian bar association, Ordem de Advogados do Brasil, São Paulo section, stated that the leading cause of the increase in deaths caused by the military police was the impunity created by the special system of justice used to try such cases.  (Folha de São Paulo, March 7, 1982) Conselho Estadual de Defesa dos  Direitos da Pessoa Humana, “Por Uma Nova Política de Segurança E Cidadania,” Comissão Permanente de Justiça, Segurança e Questão Carcerária, Documents Series 1, p. 14 (1994).

[16] See Country Reports on Human Rights Practices for 1990, Report Submitted to the Committee on Foreign Affairs, House of Representatives, and the Committee on Foreign Relations, U.S. Senate, by the Department of State, p. 332 (1994).

[17] See Human Rights Watch/Americas, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, supra note 18, pp. 41‑42 (1994).

[18] Criminal inquiry (instrução criminal) is understood to be the procedural stage for collecting evidence so that the Council of Justice can form its own view of the facts. It begins by deposing the accused (Article 404 of the Code of Military Criminal Procedure, CPPM) and continues until the final arguments (Article 428 of the same Code).

[19] Letter from the “Santo Dias Center” for Human Rights of the Archdiocese of São Paulo, to the Executive Secretary of the Inter-American Commission on Human Rights (June 29, 1994).

[20] The UN Human Rights Committee, while making its final observations about the periodic report submitted by the Brazilian government in 1996,  has stated that: “The Committee expresses its concern with the Brazilian legal system that allows the military justice to trial military policemen accused of committing human rights violations and  the fact that these cases have not yet been transferred to the civil jurisdiction”. The Report prepared  by Mr. Joinet for the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights, UN, by establishing a set of principles as regard with the administration of justice has stated on its principle 34: “In order to avoid military courts, in those countries where they have not yet been abolished, helping to perpetuate impunity by virtue of lack of independence resulting from the chain of command to which all or some of their members are subject, their jurisdiction must be limited solely to specifically military offenses committed by military personnel, excluding human rights violations constituting serious crimes under international law, which come under the jurisdiction of the ordinary domestic courts or, where necessary, an international court.“ Report n. E/CN.4/Sub.2/1997/20, July 26th, 1997, principle n. 34)

[21] See ICHR, Annual Report 1999, Report n. 34/00, Case 11.291 – Carandiru (Brasil), par. 80; Report 7/00, case 10.337 (Colombia), par. 53 to 58; and Third Report on the situation of human rights in Colombia 1999, par. 175.

[22] Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, par. 77.

[23] “The right to a trial ‘within a reasonable period of time’ provided for under the Inter-American Convention is grounded, inter alia, in the need to avoid undue delays constituting a denial of justice, prejudicial to persons invoking the violation of rights protected by the aforementioned Convention.”  (Report 43/96, Case 11.411, Mexico, para. 30, Annual Report 1996, IACHR).

[24] See, for example, IACHR, Resolution Nº 17/98, Report on Case Nº 10.037 (Mario Eduardo Firmenech). In the Annual Report of the Inter-American Commission 1988-1989, p. 38; European Court of Human Rights: “Konig” Case, Judgment of June 28, 1978, Series A, Nº 27, pp. 34-40, par. 99, 102-105, and 107-111; Guincho Case, Judgment of July 10, 1984, Series A, Nº 81, p. 16, para. 38; Unión Alimentaria Sanders S.A., Judgment of July 7, 1989, Series A, Nº 157, p. 15, par. 40; Buchholz Case, Judgment of May 6, 1981, Series A, Nº 42, p. 16, par. 51, pp. 20-22, par. 61 and 63; Kemmache Case, Judgment of November 27, 1991, Series A, Nº 218, p. 27, par. 60.

[25] IACHR, Annual Report 1997, pp. 655 ff.

[26] That obligation implies, as indicated by the Inter-American Court of Human Rights, “... the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention....” Case of Velásquez Rodríguez (Merits), supra, para. 166.

[27] The text of the proposal before Congress reads: “Officers and rank and file of the military police of the States, in the exercise of their police functions, shall not be considered members of the military for criminal purposes, as jurisdiction shall lie with the regular courts for prosecuting and judging the crimes committed by or against them.”