On November 22, 1999, Mrs. Irene Ximenes Lopes Miranda submitted
to the Inter-American Commission on Human Rights (hereinafter “the
Commission” or “the IACHR”) a petition against the Federative
Republic of Brazil (hereinafter “Brazil,” “the State,” or “the
Brazilian State”). That petition alleged violations of Articles 4, 5,
11, and 25 of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”), on the right to
life, the right to humane treatment, the right to privacy, and the right
to judicial protection, all in connection with the generic duty of the
State to respect and ensure the rights enshrined in the American
Convention, as provided for in Article 1(1), to the detriment of Mr.
Damião Ximenes Lopes, her brother, who died while at the Guararapes
Rest Home (hereinafter “Casa de Repouso Guararapes” or “Casa
de Repouso”), in Sobral, Ceará, after he was admitted there to
receive psychiatric treatment.
The petitioner alleged that the Brazilian State is responsible
for the death of her brother, Damião Ximenes Lopes, at the Casa de
Repouso Guararapes, on October 4, 1999. According to the petitioner,
her brother was admitted to said Casa de Repouso to receive
psychiatric treatment as he suffered from a mental illness, and two days
after being admitted, his mother went to visit him and found him with
visible signs of torture, his hands tied, nose bleeding, face and
abdomen swollen; he asked her to call the police. Hours later, after
receiving medication, he died.
The petitioner alleged that, despite the situation described in
the previous paragraph, the result of the autopsy performed on her
brother’s corpse only mentioned the apparent lesions, and was silent
as to the cause of his death, reporting in its conclusion, “in view of
what is set forth above, we infer that it is an actual death of
undetermined cause.” According
to the petitioner, the above-noted Casa de Repouso is known for
the inhumane treatment meted out to its patients. To this end, the
petitioner cited statements made by former patients and newspaper
The State failed to respond to the Commission’s request for
The Commission, in keeping with the provisions of Articles 46 and
47 of the American Convention, decided to admit the petition, with
respect to the possible violations of Articles 4, 5, 11, and 25, all in
relation to Article 1(1) of the Convention.
The Commission decided to notify the parties of this decision, to
publish it, and to include it in its Annual Report to the OAS General
PROCESSING BEFORE THE COMMISSION
On November 22, 1999, the Commission acknowledged receipt of a
complaint lodged by Mrs. Irene Ximenes Lopes Miranda. On December 14,
1999, the IACHR forwarded to the State the petition that is the subject
of this report, and gave it 90 days to respond. On February 14, 2000,
the Commission received a petition from the complainant in which she
reported that as of that date, the local authorities had not taken any
measure on the case, and reporting that another patient
had been a victim of torture at that same Casa de Repouso.
On February 17, the IACHR acknowledged receipt of the additional
information from the petitioner, dated January 31, 2000, in which she
added information and introduced new documents.
On that same date, the Commission forwarded to the Brazilian
State the additional information received, and gave it 60 days to
provide the information it considered necessary within 30 days, lest it
apply the provision of Article 42 of the Commission’s Regulations, in
force at that time. As of
the analysis set forth in this Report, the State had not provided any
information on the violations alleged here.
THE POSITIONS OF THE PARTIES
The petitioner alleged before this Commission that her brother,
Mr. Damião Ximenes Lopes, 30 years old, who had a mental illness, was
killed on October 4, 1999, at the Casa de Repouso Guararapes, while there for medical treatment.
According to the complaint, Mr. Damião Ximenes suffered abuse
and torture, and was cared for in an inexpert and negligent manner by
the physicians and nurses of said Casa de Repouso, which caused
his premature death.
According to the statement made by Damião Ximenes’s mother,
Mrs. Albertina Ximenes, to the Federal Public Ministry, at her hearing
as part of the administrative proceeding opened to investigate the
allegations made here, she reported that she had her son hospitalized on
Friday, October 1, 1999, and when she went to visit him the following
Monday, the guard at said Casa de Repouso informed her that her
son was not in a condition to receive visitors.
Not satisfied, Mrs. Albertina entered the institution calling her
son by his name, and then “he came to her, collapsing, and with his
hand tied behind his back, with a bloody nose, his head swollen and his
Mr. Damião’s mother recounted that after asking that they
bathe her son, she went to find a physician, and, finding one on a
mezzanine, she asked him to provide assistance to her son, for otherwise
he would die. The physician, according to the petitioner, was Mr. Francisco
Ivo de Vasconcelos, director of the Casa de Repouso, and medical
examiner at the Instituto Médico Legal of Sobral, who allegedly
answered, “Let him die, for whoever is born, it is to die,” and said
that she should stop crying because he hated to see people cry.
Right where he was, and without examining the patient, the
physician prescribed drugs for him.
After the aforementioned events transpired, Mrs. Albertina went
to look for her son. On the way, she encountered a “cleaning woman”
who told her that “the son of the deponent had struggled a great deal
with the nurses and had lost a lot of blood.”
Immediately thereafter, she found her son “lying on the floor
in one of the rooms, completely naked, his hands still tied behind him,
that at that moment the nurse said that he had calmed down, that one
shouldn’t try to deal with him, since he was now calming down....”.
According to the petitioner, after he left her son alive at the Casa
de Repouso, and shortly after arriving home, there was already a
message waiting for her from the same Casa de Repouso informing
her that he had died. On
that same day, the physician Francisco Ivo de Vasconcelos left a signed
medical certificate at the Casa de Repouso indicating that the
cause of death had been cardiorespiratory failure. The physicians of the
Casa de Repouso were silent as to the torture and abuse suffered
by Mr. Damião, and also as to the drugs taken.
She adduced that Damião’s family members, not trusting in the
medical examiner’s report that could be produced at the IML of Sobral,
since the director of that Institute was also the director of the Casa
de Repouso, Mr. Ivo de Vasconcelos, took his corpse to the capital
city for an autopsy. To the
surprise and desperation of everyone, and in the face of all the
physical evidence of torture, the autopsy report did not indicate the
cause of death of petitioner’s brother, concluding only that “in the
face of what is set forth above, we infer that it is an actual death of
The petitioner alleged that in the petition that reported the
case to the competent authorities, she requested that the Civilian
Police initiate an inquiry, and that the Federal Public Ministry
initiate an administrative proceeding.
She referred to several statements made by victims of said Casa
de Repouso, and she attached the Report prepared by the Group
for Monitoring and Evaluation of Hospital Psychiatric
The Group for Monitoring and Evaluation of Hospital Psychiatric
The “Damião Case” evidences the precarious medical care, abusive treatment, various shortcomings listed in this report, which should be denounced to the various councils related to psychiatric care, and to the Public Ministry, for it to take the appropriate measures.
The report by the group of specialists in psychiatry and signed
by Dr. Raimundo Alonso Batista de Aquino, Coordinator of Mental Health
Care for the state of Ceará, concluded what was explained by the
petitioner, i.e. that said Casa de Repouso was inadequate for the
purposes to which it was earmarked:
The clinic does not have the conditions for operating, based on all the comments referred to above. Based on its strategic location, we suggest it be intervened, or that a similar measure be adopted, changing its management or having its license stripped by the Single Health System. Measures to be adopted by the municipal government of Sobral or in conjunction with the SESA.
Even though the petitioner had demonstrated the existence of a
police inquiry and an administrative proceeding, there is nothing in the
record about what happened in these procedures.
Furthermore, the State has not provided the Commission any
information as to the development and results of those procedures.
The petitioner alleged that the State is not fulfilling its
obligation to carry out the judicial investigation in order to determine
the responsibility for her brother’s death, and she alleged State
responsibility, as the State allowed and allows–as it continues to
operate–the operation of said Casa de Repouso, which, through
its staff of physicians, nurses, and monitors, dispenses cruel and
inhuman treatment to its patients, treatment that caused the death of
her brother Damião Ximenes Lopes.
The State’s position
The Commission, as per its Regulations, notified the Brazilian
State, asking that it provide any information it deemed pertinent to the
complaint; it then did so again on three more occasions. Nonetheless,
the State let the time periods run, and as of the analysis of this
Report, it did not present any response to the facts alleged by the
petitioner, nor did it call into question the admissibility of the
petition that is the subject of this Report.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission ratione
personae, ratione materiae, ratione temporis, and ratione loci
In keeping with Article 44 of the American Convention and Article
23 of the Rules of Procedure, the petitioner has standing to present
petitions to the Commission referring to alleged violations of the human
rights established in the American Convention. As for the State, Brazil
is a party to the American Convention. The petitioner states as the
alleged victim her brother, Damião Ximenes Lopes, whose rights as
stated in the Convention the Brazilian State undertook to respect and
ensure. Accordingly, the
Commission is competent ratione personae to examine the complaint. Moreover, from an
examination of the documents attached by the petitioner, one notes that
the Casa de Repouso was a private entity licensed by the Federal
Government’s Single Health System, and, as such, could have provided
care to Mr. Damião. Nonetheless,
the IACHR shall decide on the alleged responsibility of the State for
the acts alleged in the report on the merits.
The Commission is competent ratione
materiae, for the petition refers to alleged violations of human
rights protected by the American Convention at Articles 4, 5(1) and (2),
11, and 25, to the detriment of Damião Ximenes Lopes.
The Commission is competent ratione
temporis insofar as the facts alleged occurred when the obligation
to respect and guarantee the rights established by the Convention was
already in force for the State, as it ratified the Convention on
September 25, 1992.
The Commission is competent ratione
loci because the facts alleged occurred in the territory of the
Federative Republic of Brazil, which has ratified the American
Exhaustion of domestic remedies
In the present case, the State did not allege failure to exhaust
domestic remedies, and therefore one may presume a tacit waiver of the
right to invoke the objection of failure to exhaust domestic remedies.
In this respect, the Inter-American Court has indicated that
“the objection asserting the non-exhaustion of domestic remedies, to
be timely, must be made at an early stage of the proceedings by the
State entitled to make it, lest a waiver of the requirement be
IACHR is of the view that the State tacitly waived this objection.
Time period for submission
In the complaint that is the subject of this report, the
Commission determined that the Brazilian State tacitly waived its right
to invoke the objection of failure to exhaust domestic remedies.
As the Convention requirements of exhaustion of domestic remedies
and submission within six months of the judgment that exhausts the
domestic jurisdiction are independent, the Inter-American Commission
must determine whether the petition under study was submitted within a
reasonable time. This is because, on having determined that the State
tacitly waived the requirement of prior exhaustion of domestic remedies,
there is no date certain from which to count the six-month period. The
lack of a date certain does not relieve the petitioner of the timely
submission requirement. In this regard, the Commission, in view of the
particular circumstances of this petition, considers that this complaint
was submitted within a reasonable period.
Duplication of procedure and res
The Commission does not see any indication in the record that the
complaint brought before this Commission is pending before any other
international procedure, and it did not receive any information
indicating the existence of such a situation; likewise, there is no
indication that it reproduces any petition or communication previously
examined by the IACHR. Accordingly, the Commission understands that the
requirement of Articles 46(1)(c) and 47(d) have been met.
Characterization of the violations
The Commission considers that prima
facie the facts alleged by the petitioner tend to establish
violations of the American Convention at Articles 4, 5, 11, and 25, for
possible violations of the right to life, the right to humane treatment,
the right to privacy, and the right to judicial protection, all in
connection with the State’s generic obligation to respect and ensure
the rights as established in Article 1(1) of the American Convention, to
the detriment of Mr. Damião Ximenes Lopes.
The Commission concludes that it is competent to take cognizance
of this case, and that the petition meets the admissibility
requirements, as per Articles 46 and 47 of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare, without pre-judging on the merits of this case, that
the instant petition is admissible with respect to the facts alleged in
relation to Articles 4 (right to life), 5 (right to humane treatment),
11 (right to privacy), and 25 (right to judicial protection), in
conjunction with Article 1(1) (obligation to respect the rights
contained in the Convention).
To transmit this report to the State and the petitioner.
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
Done and signed at the headquarters of the
Inter-American Commission on Human Rights, in the city of Washington,
D.C., the 9th day of October 2002. (Signed):
Juan Méndez; President, Marta Altolaguirre; First
Vice-President, Robert K. Goldman, Julio Prado Vallejo, and Clare K.
Roberts, Commission members.
This was Mr. Adauto, a patient who was cited in the Incident Report
of the Casa de Repouso (Boletim de Ocorrência da Casa de Repouso)
as having been the victim of an assault by nurses of that Casa de
petitioner did not introduce any information to identify the victim
other than his first name.
According to the report attached by the petitioner, by the GAPH
(Group for Monitoring and Evaluation of Hospital Psychiatric Care),
the Casa de Repouso Guararapes was, at the time, licensed
under the Single Health System, a system maintained by the Federal
Government. It appears
from the record that Mr. Damião Ximenes Lopes could have been
admitted to said Casa de Repouso through the Single Health
Administrative Proceeding no. 08105.001068/99-62.
Statements made in Inquiry no. 404/99.
Report dated December 2, 1999.
Inter-American Court of Human Rights, Velásquez
Rodríguez Case, Preliminary Objections, Judgment of June 26,
1987, para. 88.