|
REPORT
Nº 54/01
CASE
12.051
MARIA
DA PENHA MAIA FERNANDES
BRAZIL
April
16, 2001
I.
SUMMARY
1.
On August 20, 1998, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition filed by Mrs.
Maria da Penha Maia Fernandes, the Center for Justice and International
Law (CEJIL), and the Latin American and Caribbean Committee for the
Defense of Women’s Rights (CLADEM) (hereinafter "the
petitioners"), as provided for in Articles 44 and 46 of the American
Convention on Human Rights (hereinafter "the Convention" or
"the American Convention") and Article 12 of the Inter-American
Convention on the Prevention, Punishment, and Eradication of Violence
against Women (Convention of Belém do Pará or CMV).
2.
The petition alleges that the Federative Republic of Brazil
(hereinafter "Brazil" or "the State") condoned, for
years during their marital cohabitation, domestic violence perpetrated in
the city of Fortaleza, Ceará State, by Marco Antônio Heredia Viveiros
against his wife at the time, Maria da Penha Maia Fernandes, culminating
in attempted murder and further aggression in May and June 1983.
As a result of this aggression, Maria da Penha has suffered from
irreversible paraplegia and other ailments since 1983.
The petition maintains that the State has condoned this situation,
since, for more than 15 years, it has failed to take the effective
measures required to prosecute and punish the aggressor, despite repeated
complaints. The petition
alleges violation of Article 1(1) (Obligation to Respect Rights), 8 (a
Fair Trial), 24 (Equal Protection), and 25 (Judicial Protection) of the
American Convention, in relation to Articles II and XVIII of the American
Declaration of the Rights and Duties of Man ("the Declaration"),
as well as Articles 3, 4(a), (b), (c), (d), (e), (f), and (g), and 5 and 7
of the Convention of Belém do Pará. The Commission processed the petition in accordance with the
regulations. In view of the
fact that the State failed to provide comments on the petition despite the
repeated requests of the Commission, the petitioners asked that the events
related in the petition be presumed to be true and that Article 42 of the
Regulations of the Commission be applied.
3.
In this report, the Commission analyzes admissibility requirements
and considers the petition admissible pursuant to Articles 46(2)(c) and 47
of the American Convention, and 12 of the Convention of Belém do Pará.
With respect to the merits of the case, the Commission concludes
that the State violated the right of Mrs. Maria da Penha Maia Fernandes to
a fair trial and judicial protection, guaranteed in Articles 8 and 25 of
the American Convention, in relation to the general obligation to respect
and guarantee rights set forth in Article 1(1) of that instrument and
Articles II and XVIII of the Declaration, as well as Article 7 of the
Convention of Belém do Pará. It
also concludes that this violation forms a pattern of discrimination
evidenced by the condoning of domestic violence against women in Brazil
through ineffective judicial action.
The Commission recommends that the State conduct a serious,
impartial, and exhaustive investigation in order to establish the criminal
liability of the perpetrator for the attempted murder of Mrs. Fernandes
and to determine whether there are any other events or actions of State
agents that have prevented the rapid and effective prosecution of the
perpetrator. It also
recommends prompt and effective compensation for the victim, and the
adoption of measures at the national level to eliminate tolerance by the
State of domestic violence against women.
II.
PROCESSING BY THE COMMISSION AND FRIENDLY SETTLEMENT OFFER
4.
On August 20, 1998, the Inter-American Commission received the
petition related to this case and on September 1 of that year, it
forwarded a communication to the petitioners acknowledging receipt of
their petition and informing them that it had begun to process the case.
On October 19, 1998, the Inter-American Commission forwarded the
petition to the State and requested information from it on the matter.
5.
In light of the failure on the part of the State to respond, on
August 2, 1999, the petitioners requested application of Article 42 of the
Regulations of the Commission, so that the events related in the petition
could be presumed to be true, in view of the fact that more than 250 days
had elapsed since the forwarding of the petition to Brazil and no comments
had been received from the latter on the case.
6.
On August 4, 1999, the Inter-American Commission again asked the
State to submit the information that it deemed pertinent, and warned of
the possible application of Article 42 of its Regulations.
7.
On August 7, 2000, the Commission made itself available to the
parties for 30 days to begin the friendly settlement process pursuant to
Articles 48(1)(f) of the Convention and 45 of the Regulations of the
Commission. To date it has
not received a positive response from either party, and, for this reason,
the Commission holds the view that during this processing phase, the
matter cannot be resolved through these channels.
III. POSITIONS
OF THE PARTIES
A. The
petitioners
8.
The petition states that on May 29, 1983, Mrs. María da Penha Maia
Fernandes, a pharmacist, was the victim of attempted murder by her then
husband, Marco Antônio Heredia Viveiros, an economist, at her home in
Fortaleza, Ceará State. He
shot her while she was asleep, bringing to a climax a series of acts of
aggression carried out over the course of their married life.
As a result of this aggression of her spouse, Mrs. Fernandes
sustained serious injuries, had to undergo numerous operations, and
suffered irreversible paraplegia and other physical and psychological
trauma.
9.
The petitioners state that Mr. Heredia Viveiros was an aggressive
and violent person, and that he would assault his wife and three daughters
during his marriage. According
to the victim, the situation became unbearable but she was too afraid to
take steps to obtain a separation. They
maintain that the husband tried to cover up the attack by reporting it as
an attempted robbery and the work of thieves who had fled.
Two weeks after Mrs. Fernandes returned from the hospital and was
recovering from the attempt on her life on May 29, 1983, Mr. Heredia
Viveiros again attempted to kill her by allegedly trying to electrocute
her while she was bathing. At
that point, she decided to seek a legal separation from him.
10.
They maintain that Mr. Viveiros acted with premeditation, since the
week before the attack he had tried to convince his wife to make him the
beneficiary of a life insurance policy, and five days before attacking
her, he tried to force her to sign a document for the sale of her car that
provided no indication of the name of the purchaser.
They state that Mrs. Fernandes learned subsequently that Mr.
Viveiros had a criminal record, that he was bigamous, and that he had a
child in Colombia, information that he had concealed from her.
11. They
add that because of the resulting paraplegia, the victim had to undergo
extensive physical therapy, and, because of her loss of independence,
required constant assistance from nurses in order to move around.
The ongoing need for medication and physical therapy is expensive
and Mrs. Maria da Penha receives no financial assistance from her
ex-husband to cover her expenses. Also,
he is not paying the alimony stipulated in the separation order.
12. The
petitioners maintain that during the judicial investigation, which was
launched a few days after the June 6, 1983 assault, statements were taken
establishing that Mr. Heredia Viveiros was responsible for the assault,
and that despite this, he maintained that it was the work of thieves who
were trying to enter their home. During
the judicial proceedings, evidence was presented demonstrating that Mr.
Heredia Viveiros intended to kill her, and a rifle owned by him was found
in the house, contradicting his claim that he did not own any firearms.
Subsequent analyses indicated that this was the weapon used in the
assault. Based on all of the
above, the Office of the Public Prosecutor filed charges against Mr.
Heredia Viveiros on September 28, 1984, leading to public criminal
proceedings in the First District Court of Fortaleza, in Ceara State.
13. The
petitioners indicate that despite the clear nature of the charges and
preponderance of the evidence,
the case languished
for eight years before the jury found Mr. Viveiros guilty on May 4, 1991,
sentencing him to 15 years in prison for assault and attempted murder,
which was reduced to ten years because he had no prior convictions.
14. They
state that on that same day, that is, May 4, 1991, the defense filed an
appeal against the decision handed down by the Jury.
According to Article 479 of the Brazilian Code of Criminal
Procedure, this appeal was time-barred, since it could only be filed
during rather than after the proceedings, a matter that has been borne out
repeatedly by Brazilian case law and, in the case at hand, by the Office
of the Public Prosecutor.
15. Another
three years went by. On May
4, 1994, the Appeal Court ruled on the appeal. In that decision, it
accepted the time-barred appeal, and, using as a basis the argument of the
defense that the formulation of questions to the jury was flawed, threw
out its decision.
16.
They allege that at the same time, other legal action was being
taken to appeal the indictment [pronuncia] (first judicial decision by means of which the judge
identifies signs pointing to a perpetrator that warrant a trial by jury).
This appeal was also time-barred and the judge handed down a ruling
to that effect. That decision
was also appealed in the Ceará State court, which agreed to hear the
appeal and issued an unfavorable ruling, upholding the indictment on April
3, 1995, maintaining once more that there was sufficient evidence pointing
to a perpetrator.
17. In
the petition providing an account of legal ineptitude and delays, it is
further stated that two years after the guilty sentence of the first jury
was thrown out, a second trial by jury took place on March 15, 1996, in
which Mr. Viveiros was condemned to ten years and six months in prison.
18. The
petitioners claim that the Court again agreed to hear a second appeal
filed by the defense, in which it was maintained that the accused was
convicted without consideration being given to the evidence contained in
the court file. Since April
22, 1997, a decision has been pending in the second instance appeal to the
Ceará State Court. As of the
date of submission of the petition to the Commission, no decision had been
handed down regarding the appeal.
19. The
petitioners maintain that as of the date of the petition, the Brazilian
justice system had dragged its feet for more than 15 years without handing
down a final ruling against the ex-husband of Mrs. Fernandes, who has been
free during that entire period, despite the serious nature of the charges,
the mountain of evidence against him, and the serious nature of the crime
committed against Mrs. Fernandes. The
judicial system of Ceará and the Brazilian State have thus been
ineffective, as seen in their failure to conduct proceedings in a prompt
and efficient manner, thereby creating a great risk of impunity, since
punishment in this case will be barred by the statute of limitations
twenty years after the occurrence of these events, a date that is
approaching. They maintain
that the primary aim of the Brazilian State ought to have been to ensure
compensation for the suffering of Maria da Penha, by guaranteeing her a
fair trial within a reasonable time period.
20.
They maintain that this complaint does not represent an isolated
situation in Brazil; rather, it is an example of a pattern of impunity in
cases of domestic violence against women in Brazil, since the majority of
complaints filed do not lead to criminal prosecution and in the few cases
where they do, the perpetrators are convicted in only a small number of
cases. We note the comments
of this Commission in its report on Brazil:
The
crimes which fall within the heading of violence against women constitute
human rights violations under the American Convention, as well as under
the more specific terms of the Convention of Belém do Pará. When
committed by state agents, the use of violence against the physical and/or
mental integrity of an individual gives rise to the direct responsibility
of the State. Additionally, the State has an obligation under Article 1(1)
of the American Convention and Article 7.b of the Convention of Belém do
Pará to exercise due diligence to prevent human rights violations. This
means that, even where conduct may not initially be directly imputable to
a state (for example, because the actor is unidentified or not a state
agent), a violative act may lead to state responsibility "not because
of the act itself, but because of the lack of due diligence to prevent the
violation or respond to it as the Convention requires.
21. They
allege that the State has not taken effective measures to prevent and
punish, from a legal standpoint, domestic violence in Brazil, despite its
international obligation to prevent and sanction this violence.
They also note that statistics on homicide and sexual violence
against women show that in most instances, these acts are perpetrated by
their companions or persons whom they know.
22. They
maintain that the State of Brazil should take preventive action, in
accordance with its international commitments, to reduce the incidence of
domestic violence, and to investigate, prosecute, and punish the
aggressors within a reasonable time period, in compliance with its
obligations assumed internationally to protect human rights, something
that it has failed to do. In
the case of Mrs. Fernandes, the primary aim of action by the Brazilian
Government should have been to ensure compensation for the wrongs suffered
and the guarantee of fair proceedings against the aggressor within a
reasonable time period.
23. In
their view, it has been demonstrated that domestic resources have not been
effective in providing redress for the human rights violations suffered by
Maria da Penha Maia Fernandes, and this situation is further aggravated by
the fact that the delay on the part of the Brazilian justice system in
handing down a final decision may lead, in 2002, to the barring of the
punishment of the offense by the statute of limitations, inasmuch as 20
years would have elapsed since its commission, thereby preventing the
State from exercising jus punendi
and the accused from being held accountable for the crime committed.
This inaction of the State is also leading to the inability on the
part of the victim to obtain appropriate civil reparations.
24. Finally,
the petitioners are seeking application of Article 42 of the Regulations
of the Commission so that the acts alleged in the petition may be presumed
to be true, since the State has failed to respond, despite the fact that
more than 250 days have elapsed since the forwarding of the petition to
Brazil.
B.
The State
25.
The Brazilian State has not provided the Commission with a response
regarding the admissibility or the merits of the petition, despite the
requests of the Commission to the State on October 19, 1998, August 4,
1999, and August 7, 2000.
IV.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A.
Competence of the Commission
26.
The petitioners maintain that the State has violated the rights of
the victims pursuant to Articles 1(1), 8, 24 (in relation to Articles II
and XVIII of the American Declaration), and Article 25 of the American
Convention (ratified by Brazil on November 25, 1992), and Articles 3, 4,
5, and 7 of the Convention of Belém do Pará (ratified on November 27,
1995), as a result of the events that occurred from May 29, 1983, on an
ongoing basis, to the present. They
maintain that the lack of effective action and the tolerant attitude of
the State continued after the entry into force of these two inter-American
Conventions.
27.
In the view of the Commission, it has ratione
materiae, ratione loci, and ratione
temporis competence since the petition pertains to rights originally
protected by the American Declaration on the Rights and Duties of Man; and
by the American Convention and the Convention of Belém do Pará when they
became binding with respect to the Federative Republic of Brazil.
Despite the fact that the original assault occurred in 1983, while
the American Declaration was in effect, the Commission holds the view,
with regard to the alleged failure to guarantee due process that, inasmuch
as it is an ongoing violation, it would also be covered under the American
Convention and the Convention of Belém do Pará, which took effect later
on, since the alleged tolerant attitude of the State constituted an
ongoing denial of justice, to the detriment of Mrs. Fernandes, which could
make it impossible to convict the perpetrator and compensate the victim.
Consequently, the State allegedly tolerated a situation of impunity
and defenselessness, the effects of which were felt even after the date on
which Brazil acceded to the American Convention and the Convention of Belém
do Pará.
28.
The Commission has general competence with respect to application
of the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women (Convention of Belém do Pará or
CMV), since it is an inter-American human rights instrument, and because
of the competence assigned to it specifically by States in Article 12 of
the Convention, which stipulates:
Any
person or group of persons, or any non-governmental entity legally
recognized in one or more member states of the Organization, may lodge
petitions with the Inter-American Commission on Human Rights containing
denunciations or complaints of violations of Article 7 of this
Convention by a State Party, and the Commission shall consider such
claims in accordance with the norms and procedures established by the
American Convention on Human Rights and the Statutes and Regulations of
the Inter-American Commission on Human Rights for lodging and
considering petitions.
29.
With respect to ratione personae competence, the petition was filed jointly by Mrs.
Maria da Penha Maia Fernandes, the Center for Justice and International
Law (CEJIL), and the Latin American and Caribbean Committee for the
Defense of Women’s Rights (CLADEM), all of whom have legal authority to
file a petition with the Commission pursuant to Article 44 of the American
Convention. In addition,
insofar as the State is concerned, Article 28 of the American Convention
states that when a federative State is involved, as is the case with
Brazil, the national Government is answerable in the international sphere
for its own acts and for those taken by the agents of the entities that
compose the Federation.
B.
Requirement for admissibility of a petition
a.
Exhaustion of domestic remedies
30.
Article 46(1)(a) of the Convention states that domestic remedies
must be exhausted if a petition is to be considered admissible by the
Commission. However, Article
46(2)(c) also states that where there has been unwarranted delay in
obtaining a decision in the domestic sphere, that provision shall not
apply. As the Inter-American
Court has stated, this is a rule which, when cited, may be explicitly or
implicitly waived by the State, and, to be timely, must be invoked during
the initial stages of proceedings, failing which the State in question
will be considered to have tacitly waived its right in this regard.
31.
The Brazilian State has not responded to numerous communications
forwarded with this petition; consequently, it has not raised this
objection. It is the view of
the Commission in this case that the silence of the State constitutes
tacit waiver of the right to invoke this requirement, and, for this
reason, the Commission is not required to consider fulfillment thereof
later on.
32.
Furthermore, the Commission considers it necessary to point to the
uncontested fact that after 15 years, the Brazilian justice system has not
handed down a final ruling in this case, and, since 1997, a decision has
been pending at the second instance level of appeal in the Ceará State
Court. The Commission also
thinks that there has been an unwarranted delay in the processing of the
complaint, which is exacerbated by the fact that this delay can lead to
barring of the offense by the statute of limitations and, as a result,
definitive impunity of the perpetrator and the inability of the victim to
receive compensation. Consequently,
the exception provided for in Article 46(2)(c) of the Convention can also
be applied.
b.
Time period for submission
33.
In accordance with Article 46(1)(b) of the American Convention,
acceptance of a petition is subject to the submission thereof in a timely
manner, within six months of the date of notification of the petitioner of
the final ruling in the domestic sphere.
Since there has not been a final ruling, the Commission holds the
view that the petition was submitted within a reasonable time frame, based
on analysis of the information submitted by the petitioners, and that the
exception with regard to the six-month period set forth in Article
46(2)(c) and Article 37(2) (c) of the Regulations of the Commission is
applicable. The Commission
notes that it holds the same view regarding its competence with respect to
the Convention of Belém do Pará, as stipulated in the final part of
Article 12 thereof.
c.
Duplication of proceedings
34.
With regard to the duplication of proceedings, it does not seem
that this case has been referred to another entity and the State has not
made any claim to that effect. Consequently,
the Commission considers the petition admissible pursuant to Article 46(c)
and 47(d) of the American Convention.
d.
Conclusions related to competence and admissibility
35.
In light of the foregoing, the Commission considers itself
competent to make a decision on the case, and holds the view that this
petition fulfills the requirements of admissibility set forth in the
American Convention on Human Rights and the Convention of Belém do Pará.
V.
ANALYSIS OF THE MERITS OF THE CASE
36.
The silence of the State with respect to the case outlined in this
petition is at odds with its obligation assumed upon ratification of the
American Convention, pertaining to the authority of the Commission "to
act on petitions and other communications, pursuant to the provisions of
Articles 44 to 51 of the Convention."
The Commission has analyzed the case on the basis of the documents
provided by the petitioners and other materials obtained, taking into
account Article 42 of its Regulations.
The documents reviewed include:
-
The book published by the victim entitled: "Sobreviví
Posso Contar".
-
The police station report on robberies and thefts, with respect to
its investigation.
-
The medical reports on the treatment required by the victim, Maria
da Penha.
-
Newspaper articles on the case and on domestic violence against
women in general in Brazil.
-
The complaint against Heredia Viveiros filed by the Office of the
Public Prosecutor.
-
The report filed by the Technical Police Institute and the Police
Station on robberies and thefts of October 8, 1983, both of which deal
with the crime scene and discovery of a weapon.
-
The statements of the domestic employees of January 5, 1984.
-
The request for background information on Marco Antonio Heredia
Viveiros of February 9, 1984.
-
The report on the state of health of the victim of February 10,
1984.
-
The indictment declared as a result of the complaint by the First
Division Judge, dated October 31, 1986.
-
The conviction by a jury of May 4, 1991.
-
The arguments of the Office of the Attorney General seeking denial
of the appeal on December 12, 1991.
-
The overturning by the State Court of the conviction by the
original jury on May 4, 1994.
-
The decision by the State Court of April 3, 1995, agreeing to hear
the appeal against the indictment decision, but refusing to grant it and
ordering the accused to a new trial by jury.
-
The decision of March 15, 1996 of the second jury convicting the
accused.
In the view of the Commission, an analysis of all the evidence
available does not lead to conclusions that are different from those
presented below, with respect to the matters analyzed.
The Commission will analyze first the right to justice in
accordance with the Declaration and the American Convention, and then
complete the analysis by applying the Convention of Belém do Pará.
A.
Right to Justice (Article XVIII of the Declaration); and to a Fair
Trial (Article 8) and Judicial Protection (Article 25), in relation to the
Obligation to Respect and Guarantee Rights (Article 1(1) of the Convention
37.
Articles XVIII of the Declaration and 8 and 25 of the American
Convention on Human Rights stipulate that all persons are entitled to
access to judicial remedies and to be heard by a competent authority or
court when they think that their rights have been violated, which is
reaffirmed in Article XVIII (right to justice) of the Declaration, all in
relation to the obligation set forth in Article 1(1) of the Convention.
Article 25(1) of the Convention states:
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.
38.
More than 17 years have elapsed since the launching of the
investigation into the attack on the victim Maria da Penha Maia Fernandes
and to date, based on the information received, the case against the
accused remains open, a final ruling has not been handed down, and
remedies have not been provided for the consequences of the attempted
murderer of Mrs. Fernandes./
The Inter-American Court of Human Rights has stated that the term
"reasonable time" established in Article 8(1) of the Convention
is not a concept that can be defined easily and has referred to the
decisions of the European Court of Human Rights for guidance in this
regard. These decisions state
that the following elements must be evaluated in determining whether the
time period within which proceedings take place is reasonable: the complexity of the case, the procedural activity of the
interested party, and the conduct of the judicial authorities.
39. In
that regard, the determination of the meaning of the term "within a
reasonable time" must be made taking into account the specific facts
surrounding each case. In
this case, the Commission took into account the claims of the petitioners
and the silence of the State.
The Commission concludes that the police investigation completed in
1984 provided clear and decisive evidence for concluding the trial and
that the proceedings were delayed time and time again by long waits for
decisions, acceptance of appeals that were time-barred, and unwarranted
delays. Moreover, in the view
of the Commission, the victim/petitioner in this case has fulfilled the
requirement related to procedural activity with respect to the Brazilian
courts, which is being handled by the Office of the Public Prosecutor and
the pertinent courts, with which the victim/complainant has cooperated at
all times. In the view of the
Commission therefore, the characteristics of the case, the personal
situation of persons involved in the proceedings, the level of complexity,
and the procedural action of the interested party cannot explain the
unwarranted delay in the administration of justice in this case.
40.
Eight years elapsed between the time that Mrs. Fernandes was the
victim of attempted murder in 1983, allegedly by her then husband, and the
launching of the appropriate investigations, given the fact that the first
trial of the accused did not take place until 1991. The defendants filed a
time-barred appeal that was accepted despite its procedural irregularity
and, after more than three years, the court decided to declare the
proceedings and conviction null and void.
41.
The new proceedings were delayed by a special appeal against the
1985 indictment (an appeal that was also alleged to be time-barred), and a
decision was handed down recently, after a long delay, on April 3, 1995.
The Ceará State Court upheld, ten years later, the 1985 decision
of the court that there were signs pointing to commission of the crime by
the accused. One year later, on March 15, 1996, another jury condemned Mr.
Viveiros to ten years, six months in prison, that is, five years after a
ruling was first handed down with respect to this case. Finally, proceedings have not yet ended inasmuch as an appeal
against this conviction has been pending since April 22, 1997.
In that regard, the Inter-American Commission notes that the
judicial delay and long wait for decisions on appeals reveal conduct on
the part of the judicial authorities that violates the right to the prompt
and effective remedies provided for in the Declaration and the Convention.
Throughout these 17-year proceedings, the individual accused of
attempting to kill his wife on two occasions has been and continues to be
free.
42.
As the Inter-American Court of Human Rights has stated:
What
is decisive is whether a violation of the rights recognized by the
Convention has occurred with the support or the acquiescence of the
government, or whether the State has allowed the act to take place without
taking measures to prevent it or to punish those responsible. Thus, the
Court's task is to determine whether the violation is the result of a
State's failure to fulfill its duty to respect and guarantee those rights,
as required by Article 1(1) of the Convention.
Also,
the Court has stated the following:
The
State is obligated to investigate every situation involving a violation of
the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim's full enjoyment of such rights is not restored
as soon as possible, the State has failed to comply with its duty to
ensure the free and full exercise of those rights to the persons within
its jurisdiction. The same is
true when the State allows private persons or groups to act freely and
with impunity to the detriment of the rights recognized by the Convention.
43.
With regard to the obligations of the State in situations where
action has not been taken to guarantee the victim the ability to exercise
his rights, the Inter-American Court has stated the following:
The
second obligation of the States Parties is to "ensure" the free
and full exercise of the rights recognized by the Convention to every
person subject to its jurisdiction. This obligation implies 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 and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting from
the violation.
44.
In this case, the Brazilian courts have failed to hand down a final
ruling after seventeen years and this delay is leading to the distinct
possibility of definitive impunity because of barring of the offense by
the statute of limitations, thereby precluding receipt of compensation
which, in any event, would be very late. The Commission holds the view that the domestic judicial
decisions in this case reveal inefficiency, negligence, and failure to act
on the part of the Brazilian judicial authorities and unjustified delay in
the prosecution of the accused. These
decisions are standing in the way of punishment of the accused and are
raising the specter of impunity and failure to compensate the victim as a
result of barring of the offense by the statute of limitations. They demonstrate that the State has not been capable of
organizing its entities in a manner that guarantees those rights. As a
whole, this situation represents a separate violation of Articles 8 and 25
of the American Convention on Human Rights in relation to Article 1(1)
thereof and the corresponding Articles of the Declaration.
B. Equality before the Law (Article
24 of the Convention) and Articles II and XVIII of the Declaration
45.
The petitioners also allege violation of Article 24 of the American
Convention in relation to the right to equality before the law and the
right to justice enshrined in the American Declaration on the Rights and
Duties of Man (Articles II and XVIII).
46.
In that regard, the Inter-American Commission notes that it has
followed with special interest developments related to respect for the
rights of women, particularly those related to domestic violence.
The Commission has received information on the high number of
domestic attacks of women in Brazil.
In Ceará alone (the place where the events related to this case
took place), there were 1,183 death threats reported to special police
stations handling women's affairs in 1993, out of a total of 4,755
complaints.
47.
Compared to men, women are the victims of domestic violence in
disproportionate numbers. A
study done by the National Movement for Human Rights in Brazil compares
the incidence of domestic violence against women and men and shows that in
terms of murders, women are 30 times more likely to be killed by their
husbands than husbands by their wives.
In its special report on Brazil in 1997, the Commission found that
there was clear discrimination against women who were attacked, resulting
from the inefficiency of the Brazilian judicial system and inadequate
application of national and international rules, including those arising
from the case law of the Brazilian Supreme Court.
In its 1997 Report on the Situation of Human Rights, the Commission
stated:
Moreover,
even where these specialized stations exist, it remains frequently the
case that complaints are not fully investigated or prosecuted. In some
cases, resource limitations hinder efforts to respond to these crimes. In
other cases, women refrain from pressing formal charges. In practice,
legal and other limitations often expose women to situations where they
feel constrained to act. By law, women have to register their complaint at
a police station, and explain what happened so the delegate can write up
an "incident report." Delegates who have not received sufficient
training may be unable to provide the required services, and some
reportedly continue to respond to victims in ways that make them feel
shame and humiliation. For certain crimes, such as rape, victims must
present themselves at an Institute of Forensic Medicine (Instituto Médico
Legal), which has the exclusive competence to perform the
examinations required by law to process a charge. Some women are not aware
of this requirement, or do not have access to such a facility in the
timely manner necessary to obtain the required evidence. These Institutes
tend to be located in urban areas, and, where available, are often
understaffed. Moreover, even when women take the steps necessary to
denounce the use of criminal violence, there is no guarantee that the
crime will be investigated and prosecuted.
Although
the Supreme Court of Brazil struck down the archaic "honor
defense" as a justification for wife-killing in 1991, many courts
remain reluctant to prosecute and punish the perpetrators of domestic
violence. In some areas of the country, use of the "honor
defense" persists, and in some areas the conduct of the victim
continues to be a focal point within the judicial process to prosecute a
sexual crime. Rather than focusing on the existence of the legal
elements of the crime in question, the practices of some defense
lawyers–sustained in turn by some courts–have the effect of
requiring the victim to demonstrate the sanctity of her reputation and
her moral blamelessness in order to exercise the remedies legally
required to be available to her. The initiatives taken by the public and
private sector to confront violence against women have begun to combat
the silence which customarily has concealed it, but have yet to surmount
the social, legal and other barriers which contribute to the impunity in
which these crimes too often languish.
48.
That report also makes reference to various studies that
demonstrate that in cases where statistics have been kept, they have shown
that only one percent of the offenses reported to specialized stations are
actually investigated. (Unido
de Mulheres de Sao Paulo, A Violencia Contra a Mulher e a Impunidade:
Una Questão Política (1995).
In 1994, of 86,815 complaints filed by women who were assaulted in
the home, only 24,103 led to police investigations, according to that
report.
49.
Other reports indicate that 70% of the criminal complaints
pertaining to domestic violence are put on hold without any conclusion
being reached. Only 2% of the
criminal complaints for domestic violence against women lead to conviction
of the aggressor. (Report of
the San Pablo Catholic University, 1998).
50.
In this analysis examining the pattern shown by the State in
responding to this kind of violation, the Commission also notes that
positive measures have been taken in the legislative, judicial, and
administrative spheres./
The Commission points to three initiatives that are directly
related to the situation seen in this case: (1) the establishment of
special police stations to handle reports on violence against women; (2)
the establishment of shelters for battered women; and (3) the 1991
decision of the Supreme Court to strike down the archaic concept of
"honor defense " as a justification for crimes against wives.
These positive and other similar initiatives have been implemented
on a limited basis in relation to the scope and urgency of the problem, as
indicated earlier. In this
case, which stands as a symbol, these initiatives have not had any effect
whatsoever.
C.
Article 7 of the Convention of Belém do Pará
51.
On November 27, 1995, Brazil deposited its ratification of the
Convention of Belém do Pará, the inter-American instrument by means of
which American States acknowledge the extent of this problem, establish
guidelines to be followed, make commitments to address it, and establish
the possibility for any individual or organization to file petitions and
take action on a matter before the Inter-American Commission on Human
Rights and through its proceedings. The
petitioners are seeking a finding of violation by the State of Articles 3,
4, 5, and 7 of this Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women, and are alleging
that this case must be analyzed in a context of gender-based
discrimination by Brazilian State organs, which serves to reinforce the
systematic pattern of violence against women and impunity in Brazil.
52.
As indicated earlier, the Commission has ratione
materiae and ratione temporis
competence to hear the case pursuant to the provisions of the Convention
of Belém do Pará with respect to acts that occurred subsequent to
ratification thereof by Brazil, that is, the alleged ongoing violation of
the right to effective legal procedures, and, consequently, the tolerance
that this would imply of violence against women.
53.
The Convention of Belém do Pará is an essential instrument that
reflects the great effort made to identify specific measures to protect
the right of women to a life free of aggression and violence, both outside
and within the family circle. The CVM provides the following definition of violence against
women:
Article
2
Violence
against women shall be understood to include physical, sexual, and
psychological violence:
a.
that occurs within the family or domestic unit or within any other
interpersonal relationship, whether or not the perpetrator shares or has
shared the same residence with the woman, including, among others, rape,
battery and sexual abuse;
b.
that occurs in the community and is perpetrated by any person,
including, among others, rape, sexual abuse, torture, trafficking in
persons, forced prostitution, kidnapping and sexual harassment in the
workplace, as well as in educational institutions, health facilities or
any other place; and
c.
that is perpetrated or condoned by the state or its agents
regardless of where it occurs.
54.
Within the scope of application of the CMV, reference is made to
situations defined by two conditions: first, violence against women as
described in sections (a) and (b); and, second, violence perpetrated or
condoned by the State. The
CMV protects, inter alia, the
following rights of women when they have been violated by acts of
violence: the right to a life free of violence (Article 3), the right
to have her life, her physical, mental, and moral integrity, her personal
safety, and personal dignity respected, to equal protection before and of
the law; and to simple and prompt recourse to a competent court for
protection against acts that violate her rights (Articles 4 (a), (b), (c),
(d), (e), (f), and (g), and the resulting duty of the State set forth in
Article 7 of that instrument. Article
7 of the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women states:
DUTIES
OF THE STATES
Article
7
The
States Parties condemn all forms of violence against women and agree to
pursue, by all appropriate means and without delay, policies to prevent,
punish and eradicate such violence and undertake to:
a.
refrain from engaging in any act or practice of violence against
women and to ensure that their authorities, officials, personnel, agents,
and institutions act in conformity with this obligation;
b.
apply due diligence to prevent, investigate and impose penalties
for violence against women;
c.
include in their domestic legislation penal, civil, administrative
and any other type of provisions that may be needed to prevent, punish and
eradicate violence against women and to adopt appropriate administrative
measures where necessary;
d.
adopt legal measures to require the perpetrator to refrain from
harassing, intimidating or threatening the woman or using any method that
harms or endangers her life or integrity, or damages her property;
e.
take all appropriate measures, including legislative measures, to
amend or repeal existing laws and regulations or to modify legal or
customary practices which sustain the persistence and tolerance of
violence against women;
f.
establish fair and effective legal procedures for women who have
been subjected to violence which include, among others, protective
measures, a timely hearing and effective access to such procedures;
g.
establish the necessary legal and administrative mechanisms to
ensure that women subjected to violence have effective access to
restitution, reparations or other just and effective remedies; and
h.
adopt such legislative or other measures as may be necessary to
give effect to this Convention.
55.
The impunity that the ex-husband of Mrs. Fernandes has enjoyed and
continues to enjoy is at odds with the international commitment
voluntarily assumed by the State when it ratified the Convention of Belém
do Pará. The failure to
prosecute and convict the perpetrator under these circumstances is an
indication that the State condones the violence suffered by Maria da Penha,
and this failure by the Brazilian courts to take action is exacerbating
the direct consequences of the aggression by her ex-husband.
Furthermore, as has been demonstrated earlier, that tolerance by
the State organs is not limited to this case; rather, it is a pattern.
The condoning of this situation by the entire system only serves to
perpetuate the psychological, social, and historical roots and factors
that sustain and encourage violence against women.
56.
Given the fact that the violence suffered by Maria da Penha is part
of a general pattern of negligence and lack of effective action by the
State in prosecuting and convicting aggressors, it is the view of the
Commission that this case involves not only failure to fulfill the
obligation with respect to prosecute and convict, but also the obligation
to prevent these degrading practices.
That general and discriminatory judicial ineffectiveness also
creates a climate that is conducive to domestic violence, since society
sees no evidence of willingness by the State, as the representative of the
society, to take effective action to sanction such acts.
57.
The Commission must consider, in relation to Articles 7(c) and (h),
the measures taken by the State to eliminate the condoning of domestic
violence. The Commission
notes the positive measures taken by the current administration towards
that objective, in particular the establishment of special police
stations, shelters for battered women, and others.
However, in this case, which represents the tip of the iceberg,
ineffective judicial action, impunity, and the inability of victims
to obtain compensation provide an example of the lack of commitment to
take appropriate action to address domestic violence.
Article 7 of the Convention of Belém do Pará seems to represent a
list of commitments that the Brazilian State has failed to meet in such
cases.
58.
In light of the foregoing, the Commission holds the view that this
case meets the conditions for domestic violence and tolerance on the part
of the State, defined in the Convention of Belém do Pará, and that the
State is liable for failing to perform its duties set forth in Articles
7(b), (d), (e), (f), and (g) of that Convention in relation to rights
protected therein, among them, the right to a life free of violence
(Article 3), the right of a woman to have her life, her physical, mental,
and moral integrity, her personal safety, and personal dignity respected,
to equal protection before and of the law, and to simple and prompt
recourse to a competent court for protection against acts that violate her
rights (Articles 4(a), (b), (c), (d), (e), (f), and (g).
|
