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REPORT
Nº 34/00 I.
SUMMARY
1.
The present petition concerns events that took place on October 10, 1992
at the Carandirú detention center in São Paulo, and was filed by Americas
Watch, CEJIL, and the Teotonio Vilela Commission against the Federative Republic
of Brazil (hereinafter called the State or Brazil).
It relates to a prison riot in which 111 prisoners (84 of whom had not
been sentenced) were killed and others seriously wounded in actions allegedly
committed by the São Paulo military police on October 2, 1992.
It is requested that the State be sanctioned for violations of Articles
4, 5, 8, 25, and 1(1) of the American Convention on Human Rights ("the
Convention") for violations of the right to life and personal integrity,
due process, and judicial protection, all in keeping with the State's obligation
to respect and ensure enjoyment of such rights (Article 1(1)).
According to the original complaint, the investigation was still bogged
down 16 months after the events occurred and proceedings had not been instituted
against those allegedly responsible; in fact some of the officers involved had
been promoted.
In later submissions, complaints were lodged over the persisting impunity
and the absence of compensation for the victims.
2.
The State, for its part, while generally acknowledging that violations of
the right to life and personal integrity occurred during the riot, maintains
that it has taken serious and significant steps to improve prisons conditions in
the state of São Paulo.
Also, proceedings had been instituted to prosecute the agents responsible
and to seek compensation and continue in different jurisdictions in accordance
with procedural guarantees.
It further asserts that the cases of voluntary manslaughter by members of
the police were transferred to the civil courts in accordance with Law 9299-96
(Bicudo Act).
Consequently, domestic remedies have not been exhausted and the petition
does not satisfy the conditions of admissibility.
The attempt to seek a friendly solution proposed by the Commission to
both parties on various occasions has not been successful.
3.
The Commission concludes that the petition is admissible.
After analyzing the facts and the law, the Commission finds that what
took place was a massacre in which the State violated the rights to life, and
personal integrity, and in subsequent proceedings violated the rights to due
process and judicial protection (Articles 4, 5, 8, and 25) with respect to
Article 1 of the Convention.
Also, it recommends that the events be investigated, those responsible
punished, the victims given compensation, and steps be taken at the national and
state level to avoid a repetition of violations of this kind.
II.
PROCEEDINGS BEFORE THE COMMISSION
4.
On February 22, 1994, the petition was filed with the Commission, which
forwarded it to the State on May 11, 1994, with a request for the latter's
comments.
Additional information was received from the petitioner on September 16,
1994.
The State initially responded on August 8, 1994, with information on the
progress of the legal proceedings, with a request for an extension in order to
answer more fully.
An extension to November 4, 1994, was granted.
The petitioner replied to the State's response on August 14, 1995.
5.
Throughout this period, both parties furnished additional information on
the progress of the domestic remedies.
The petitioner responded on October 3 and 10, 1995, and on January 15,
1996.
The State provided fresh information on September 7, 1995.
In addition, during its on-site visit to Brazil in December 1995, the
Commission obtained information on the case from the military courts of the
state.
The State provided new information on the implementation of the prison
reform in São Paulo on August 4, 1999.
6.
Hearings for the case were held on four occasions -- September 8, 1995,
February 23, 1996, October 7, 1996, and October 8, 1997.
In the first hearing, the Commission made itself available to the parties
in seeking a friendly solution.
This proposal was reiterated unsuccessfully on other occasions, including
during the visit to Brazil in July 1997 by the Commission's Rapporteur for
matters in Brazil.
7.
The State presented a report at the hearing of October 7, 1996, on the
steps that were being effectively taken to close down the Carandirú prison
complex.
At the hearing, the Commission "decided to suspend consideration of
the case until such time as the Supreme Court ruled on the conflict of
jurisdictions[1]",
clarifying that the case was not being dismissed but would continue its normal
course as soon the Supreme Court's decision was known.
On December 13, 1996, the State reported that the Supreme Court had
decided that the proceedings be transferred to the jurisdiction of the civil
criminal courts of the state of São Paulo, which had already been done and it
was expected that the proceedings would be concluded shortly and that a jury
trial would take place.
8.
On April 10, 1997, the petitioner asked the Commission to intervene with
the State to set up a Special Commission composed of non-governmental agencies
and the State, to monitor the closing down of the Carandirú correctional
facility.
This proposal was sent to, and rejected by, the State.
On October 7, 1997, the petitioner requested that the State take various
measures and that the Commission reopen the proceedings in view of the delay by
the civil courts in prosecuting the proceedings and provided new information on
the problems that persisted at the Carandirú facility, including more riots and
repression. 9.
At that same hearing the State reported that it had been decided by the
courts to compensate some of the victims' families and that additional steps
were being taken to resolve the case.
The petitioner responded that such steps were ineffective and incomplete
and again requested that the Commission act on the petition.
In view of the fact that the grounds for suspending consideration of the
case were removed through the transfer of the proceedings to the civil criminal
courts, the Commission decided to reopen consideration of the matter.
III.
POSITIONS OF THE PARTIES
A.
The petitioner
The events of October 2, 1992 10.
The petitioner alleges[2]
that on the date of the riot there were 2,069 inmates in Block 9 of the Carandirú
complex, a number in excess of the facility's capacity, that these inmates were
in the charge of just 15 prison guards, and that conditions in the detention
center were against the regulations and abusive; and that as a result of the
tensions and ill-feelings that existed, what started out as a minor altercation
between inmates was mishandled by the guards and degenerated into a full-scale
protest.
The petitioner specifies that two prisoners began to fight over a trivial
matter at 2:00 p.m. that day.
When the fight was over, the guards shut off access to the corridor,
crowding and confining the prisoners together on the second floor of the
cellblock.
In desperation, the prisoners managed to break the lock and the uprising
commenced.
11.
When the riot broke out, the guards decided to withdraw from the building
and the Warden called on the military police for assistance.
Approximately 350 agents of the military police arrived on the scene at
2:45 p.m. from various barracks, including shock troops and the ROTA special
group.
At the same time, the Warden requested that magistrates with jurisdiction
in the matter (i.e. the juiz da vara de
execuções criminais and the juiz
corregedor da policía)[3].
Upon their arrival, the magistrates were discouraged from intervening by
members of the military police of São Paulo (PM) and were told that they could
not enter block 9 on grounds that the prisoners were armed.
This brief effort at negotiation that the judges were about to attempt
was thus thwarted, and at 4:00 p.m. the military police began their take over of
cellblock 9.
Eleven hours later, some time after midnight, when the military police
withdrew from the prison and returned to their barracks, the prison guards
confirmed that the action had claimed 111 lives and left about 35 prisoners
wounded[4].
No members of the police were killed.
12.
The petitioner also maintains that the deaths were summary executions of
the inmates, who were murdered after they had surrendered and that wounded
inmates who had surrendered were subsequently executed.
The petitioner goes on to say that according to police experts bullet
holes in the cell walls corroborate the version that they had been summarily
executed.
The petitioner reports that an expert, Osvaldo Negrini Neto, author of
the work on the massacre, disclosed in an interview for Folha
de São Paulo that military police units had probably stormed cell block
9, had prior information of the location of the ring leaders, went directly to
that spot, and murdered them in their cells[5].
According to the expert:
We
found evidence that a hail of machine gun bullets had been fired about 50
centimeters above ground level, indicating that the prisoners had been shot
while on their knees.
The marks indicate that the bullets had been fired in a single direction.
There were no holes in the opposite wall, indicating that no shots had
been fired at the police.[6]
13.
The petitioner further states that immediately after the massacre
military police destroyed any evidence that could have been used to determine
individual responsibility for the murders, and that the three magistrates
present had done nothing to prevent this from happening.
The main pieces of evidence that would have made it easier to establish
the identity of those responsible disappeared.
14.
The petitioner affirms that the subsequent behavior of the authorities
was as shameful as the massacre itself.
The relatives of the victims were not given any information until the
afternoon of the following day.
The official list of victims was not released until October 8, six days
after the massacre.
Reporters were initially prevented from disclosing any information about
the matter, and two news photographers were held at the police station for
photographing the removal of the bodies.
15.
The petitioner also indicated that many of the inmates who had been
wounded in the action, most of them seriously, had to wait several days before
being treated and that the families of the victims were subjected to inhumane
treatment, by being kept waiting at length exposed to the elements and
threatened by police dogs.
16.
The petitioner notes that the riot and the subsequent massacre occurred
following a decade during which the military police of São Paulo had earned a
reputation for resorting frequently to the use of deadly force as reflected by
the fact that 25% of all violent deaths in 1991 in the state of São Paulo had
been caused by the police.
The petitioner maintains that government data show that 14 of the senior
police officers who commanded the operations at the detention center on October
2, 1992, were being tried by military courts for 148 other counts of homicide or
attempted homicide.
17.
The petitioner maintains that in the past massacres had taken place in
operations to quell prison riots in São Paulo but none of the magnitude of the
one of October 2.
Notwithstanding these previous incidents of police violence, the
Secretary of Public Security for São Paulo gave the military police absolute
authority to put down the riot.
The petitioner subsequently indicated that the problem had persisted over
the years since then, because on several occasions, including in 1997, riots
continued to break out at Carandirú.
18.
The petitioner reports that in October 1997, despite the body of evidence
that had accumulated since the events, the Government had not issued an official
version of the facts acknowledging the massacre or the responsibility of the
agents of the State.
It is also noted that the victims' next of kin had not been paid
compensation. The petitioner clarifies that although the Prosecutor's Office had
initiated legal proceedings for compensation in 59 cases, with a ruling in favor
for 13 of the victims, even these few compensation awards had not been effected,
as confirmed in newspaper reports indicating that compensation could not be paid
unless the State allocated special funds to the budget, in other words
compensation could only be paid if funds were appropriated by the Legislature as
late as 1999.
Five years after the events, a ruling of the lower court was still
pending in 20 other actions for civil damages arising from these events, an
indication of the failure of the State to fulfill its international obligation
to compensate the victims for these violations.
19.
In its submissions, the petitioner also reported that after the events
had taken place, and pursuant to the Officer Promotion Act (Executive Order
13,654/54), senior and middle ranking officers in charge of putting down the
riot and who had been charged with, amongst other things, voluntary manslaughter
of the victims, had been promoted.
One of the officers promoted, Lt. Col. Armando Rafael Araujo, who
had been made Commander of the 9th of July Cavalry Regiment, was charged with
injuring 87 prisoners.[7]
It further reports that the names of members of a group of military
police officers under the command of Major Rail de Mendoça, that included four
plainclothesmen, all of whom had taken part in the assault to crush the Carandirú
riot, do not appear on the list of the accused and are still active members of
the police force.
Law
20.
The petitioner recalls that the Court established the obligations of the
States parties with respect to individuals in its custody:
In
the terms of Article 5(2) of the Convention, every person deprived of her or his
liberty has the right to live in detention conditions compatible with her or his
personal dignity, and the State must guarantee to that person the right to life
and to humane treatment.
Consequently, since the State is the institution responsible for
detention establishments, it is the guarantor of these rights of the prisoners.[8]
21.
The petitioner maintains that the judicial authorities and the prosecutor
have confirmed that agents of the State had entered the prison and opened fire
on defenseless inmates, and that the details of these events submitted to the
Commission were never denied by the State.
Even the State's own investigations established that violations to the
right to life and integrity of the person had occurred (Articles 4 and 5 of the
Convention) and that failure to elucidate the case and take effective legal
action to bring those responsible to justice are violations of Articles 8 and 25
(judicial guarantees) of the Convention.
22.
As to compensation to the victims' families, the petitioner refers to the
established precedent of the Inter-American Court of Human Rights concerning the
obligation of the State to provide adequate compensation to the victims and
their families.[9]
Legal remedies and judicial guarantees
23.
The petitioner notes in its submission of January 15, 1996, that
after processing the case for 3 years the military courts decided to transfer it
to the civil courts.
Thus, on February 13, 1996, the Special Council of Military Justice
decided unanimously to transfer the case to the civil courts on grounds that
"there was proof of involvement in the case by the then duly established
civil authorities" presumably in reference to the alleged responsibilities
of former governor Luis Antonio Fleury Filho and the former Secretary of
Security Pedro Franco de Campos[10].
It is maintained that if the civil courts do not agree to take over the
case[11],
there will be a conflict of jurisdictions on which the Federal Supreme Court
would have to rule.
The petitioner points out the delay and complexity that this means since
after three years during which a vast body of evidence had been accumulated and
the testimony of 253 witnesses, filling 26 volumes and 7,651 pages, only now was
jurisdiction passing to the civil courts and in accordance with the new jury
legislation.
In light of the fact that this new court will use only the technical
evidence -- ballistic evidence, expert testimony, etc. -- the accused will
request that the testimony of the witnesses be reexamined, with the additional
delay that this implies.
24.
The petitioner maintains that this not only violates due process to which
the victims are entitled but is also a manoeuvre to add to the unwarranted delay
that has already occurred in the military courts.
Subsequently, the petitioner reported that there was a lengthy additional
delay, noting that only 14 months later in April 1997, the Supreme Court
confirmed the decision for transfer of the case to the civil courts.
The petitioner again reiterates that the proceedings are lengthy since
this decision took more than one year and was in fact redundant since such a
transfer should automatically have been done pursuant to the Bicudo Act adopted
seven months earlier on August 6, 1996.
25.
On October 8, 1997, the petitioner reports provision had not yet been
made for the case to be tried by the jury, and that the main proceedings had
been split up in order to separate from the case the only officer charged, Col.
Ubiratan Guimaraes, now retired who commanded the operation and had been elected
to the state Legislature in January 1997.
In that capacity, he enjoyed parliamentary immunity, which can only be
withdrawn by the Legislative Assembly of São Paulo and this had not been done. 26.
The petitioner further reports that in another example of impunity in
case Nº 266-93 before the 5th criminal court of Santana Edson Faroro (military
officer) and Ismael Pedrosa (Warden of Carandirú at the time of the riot) were
found not guilty of abuse of authority in September 1997.
In efforts to maintain this impunity, on September 10, 1997, the Attorney
General requested that proceedings against seven of the military policemen
charged with seriously injuring an inmate be suspended in accordance with
Article 89 of law 9099/95, which allows conditional suspension for felonies with
a minimum sentence of a year in jail. It
is recalled that the police officers had been charged with seriously injuring
the prisoner when he had surrendered and was unarmed.
The petitioner indicates that as a result of this suspension requested by
the Prosecutor through a motion that seeks to benefit the principals charged, no
reference to the criminal charges even appears in the defendants' record.
Thus, the petitioner maintains the State is failing to fulfill its
international commitment to punish those responsible for violations of human
rights.
Admissibility
27.
The petitioner maintains that, given the nature of the alleged
violations, the Commission is fully competent to hear the case.
With respect to the requisite that domestic remedies be exhausted, such
remedies have been shown to be ineffectual and unwarranted delay has resulted in
the military and civil courts.
The petitioner mentions that three years after the proceedings were
initiated the military courts decided to transfer the case to the competence of
the civil courts, reopening proof despite the mountain of accumulated evidence.
The petitioner notes that as recently as 1997 no sentences had been
passed and no compensation had been paid, and requests that the exception
granted pursuant to Article 46(2)(c) of the Convention be applied.
B.
The State
The events in the prison and the response of the State institutions
28.
With respect to objective responsibility of the State for homicide and
the attacks on the personal integrity of the inmates, the Government
acknowledges the serious nature of the situation and the events reported
although it maintains that it has taken steps to provide adequate compensation
and has initiated the legal proceedings provided for in Brazilian law.[12]
Hence, as later indicated with respect to each action, it contends that:
(a) all of the families that have demonstrated their kinship with the
victims have been awarded compensation in civil proceedings; (b) a Secretary of
State has been established within the government of the state of São Paulo
solely to handle correctional facility matters; and (c) a plan has been
initiated to close down the Carandirú correctional facility and to build modern
facilities.
29.
As to the events of October 2, the State indicated on August 8, 1994,
that "the government and courts of Brazil are determined to press ahead
with the proceedings in this sad episode, and to elucidate the facts with a view
to determining responsibility".
It reported that 120 police officers had been charged, including Military
Police Colonel, Ubiratan Guimaraes, who together with Lt. Col. Edson Faroro, had
transferred to the reserve.
It reports that civil proceedings had commenced to compensate the
victims.
30.
It further reports that immediately after the riot steps were taken to
set up a Secretary for Prison Administration in São Paulo and that a course in
human rights had become a compulsory part of police officer training in that
state. 31.
On October 15, 1996, the State reported that an agreement had been
reached between the Federative Republic of Brazil and the state of São Paulo to
close down the Carandirú prison complex as an initial step to fulfilling one of
the long-term objectives of the National Human Rights Program, which provides
that "the São Paulo Detention Center (Carandirú) and other correctional
facilities that failed to meet the minimum international prison standards be
closed down."[13]
In addition, a significant number of new prisons and associated
facilities will be built with the ultimate objective of rehabilitating the
inmates.
The program acknowledges that at the time (1996) Carandirú housed almost
double its regulation inmate capacity.
These assertions on the implementation of the penitentiary reform were
broadened on August 4, 1999, noting that Carandirú had been closed down
completely and other preventive measures implemented.
32.
The State reports that on November 27, 1996, the Supreme Court confirmed
the competence of the civil courts to hear the case concerning the massacre of
111 prisoners, expressing the view that "the crime may be considered a
matter for the civil courts although it had been committed by military personnel
on duty using military weapons and that the Military Code of Justice is clear in
this respect.
In a subsequent communication, the government maintained that the
decision was based on the entry into force of the Bicudo Act (Law 9,299/96),
which transferred to the civil courts the prosecution of the crimes of voluntary
manslaughter committed by military personnel. 33.
On April 6, 1996, the State officially forwarded to the Commission a
notice placed on the internet indicating that the "government of Brazil
accepts responsibility for Carandirú".
The notice states that the government of the state of São Paulo with the
support of José Gregori, National Human Rights Commissioner, was studying a
solution to the case, whereby compensation would be paid to the victims'
families. The notice also states
that the Governor of the state, Mario Covas, maintained that legal proceedings
for compensation needed to be followed, and that any decision taken should be
consistent with others being processed in other cases.
Admissibility
34.
It is maintained that domestic remedies have not been exhausted in the
proceedings of the military police officers charged with voluntary manslaughter
and in the cases of compensation, all of which are being carried out in
accordance with the guarantees and procedures provided in Brazilian law.
IV.
ANALYSIS OF JURISDICTION AND ADMISSIBILITY
A.
Jurisdiction
35.
The Commission is competent prima
facie to examine this case, given that the alleged facts affected people
under the jurisdiction of the State when the obligation to respect and guarantee
rights recognized in the Convention was in full force.[14]
36.
As to competence ratione personae,
Article 1(1) of the Convention clearly establishes the obligation of the State
to respect the rights and freedoms recognized by the Convention as well as to
ensure the free and full exercise of such rights so that any violation of the
rights recognized under the Convention that may be attributable, in accordance
with the standards of international law, to an action or omission by any public
authority is the responsibility of the State.
Pursuant to Article 28 of the Convention, in the case of a federative
State like Brazil, the national government answers internationally for the acts
committed by the federation's constituent units. 37.
The present case deals not only with alleged violations committed during
the violent suppression of the Carandirú riot but also alleged violations of
the rights to a fair trial, due process and judicial guarantees recognized under
the Convention. These violations are attributable to state officials (senior
authorities of the state of São Paulo, authorities in the prison system, state
military police, officials at the Attorney General's Office and judicial
officers).
38.
The present petition therefore meets the formal requisites for
admissibility provided for in Articles 46(1)(c) and 46(1)(d) of the Convention
and in Article 32 of the Regulations of the Commission. The Commission is not
aware of the subject of this petition being pending for settlement or of a
ruling having been issued in another international proceeding. Exhaustion
of domestic remedies and period for presentation
39.
The Commission now turns to the formal aspects of the admissibility of
the complaint.
Pursuant to Article 46(1)(a) of the Convention for a petition to be
admissible by the Commission all remedies available under domestic jurisdiction
must have been exhausted, in accordance with the principles of international
law.
Article 46(2) establishes, however, that the provisions for exhaustion of
remedies available under domestic jurisdiction are not fulfilled when:
a.
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly
been violated;
b.
the party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them; or
c.
there has been unwarranted delay in rendering a final judgement under the
aforementioned remedies.
40.
The petitioners alleged that the proceedings were delayed on numerous
occasions and held up in the various courts, with the result that five years
after the events occurred none of those responsible have been punished and no
compensation has been paid to the victims or their families.
The State on several occasions during the proceedings before the IACHR
alleged that the judicial remedies were in progress and had not been exhausted.
41.
The State pressed ahead with various proceedings based on the events in
question in the criminal and civil courts.
Some of the actions had become statute barred before the proceedings were
completed, other proceedings were completed with a verdict, and others are in
progress.
According to the information at the Commission's disposal, a guilty
verdict has not been returned in any of the cases, and those still in progress,
seven years after the riot, have not been concluded.
42.
Amongst those for which judicial remedies have been exhausted are the
proceedings against 8 policemen charged by the Attorney General of injuring the
inmates.
The charges were filed on March 8, 1993, and lapsed two years later, in
1995, without a verdict.
In another case of civil liability for abuse of authority against Col.
Faroro, one of the officers commanding the forces used to suppress the riot, and
the Warden of the Prison, the defendants were acquitted.
43.
The main criminal proceedings against 119 policemen charged with
aggravated manslaughter was initiated before the Military Court of São Paulo on
June 23, 1993 (case 78/93) and was seriously delayed.
Three years after the case was opened, during which period numerous
judicial proceedings took place, it was transferred by the Special Council of
Military Justice to the jurisdiction of the civil courts on February 13, 1996,
because of evidence of responsibility on the part of duly elected civil
authorities.
Such evidence against civil authorities (the Governor and the Secretary
of Public Security) were known when the charges were filed in 1993.
Consequently, the three-year delay in transferring the case appears to be
unwarranted to the Commission.
In addition, the transfer further delayed the handling of the case since
under procedural law only the testimony of technical experts and documentary
evidence is still admissible in civil proceedings but the testimony of witnesses
would need to be repeated when 253 sworn declarations had already been taken.
44.
This decision of the Council of Military Justice was reviewed by the
Federal Supreme Court, which took fourteen months to uphold it, in April 1997.
Since then the case continues to be heard in the civil courts for a
decision by the jury.
45.
In case 78/93, charges were filed against the only officer accused, Col.
Ubiratan Guimaraes, who commanded the forces that suppressed the riot.
He was charged with manslaughter as well as other counts.
When Col. Ubiratan was elected to the state Legislature in January
1997, the proceedings came to standstill, and this will continue as long as he
has parliamentary immunity, without the Legislative Assembly initiating
proceedings against him at the political level to remove the privilege, despite
the enormity of the charge and requests from various representatives and civil
organizations.
His term of office ended the first semester of 1999, thereby ending his
parliamentary immunity.
46.
As to compensation, the Commission confirms that of the 59 trials
initiated by the State for satisfaction, the families of the victims were
identified in only 13, although compensation was determined, it was never paid
because funds had not been allocated for this purpose in the state budget.
47.
The exemptions provided in Article 46(2) of the Convention seek to ensure
that international action will be taken when the remedies under domestic
jurisdiction and the judicial system itself are not effective in guaranteeing
respect for the victims' human rights.
Hence, the formal requirement regarding the nonexistence of domestic
remedies that safeguard the principle of due process (Article 46(2)(a) of the
Convention) refer not only to the absence of formal remedies under domestic
jurisdiction but also to the case in which they prove ineffective.
The denial of access to judicial remedies (Article 46(2)(b) of the
Convention), and unwarranted delay in rendering judgement (Article 46(2)(c) of
the Convention) are also linked to the effectiveness of such remedies.[15]
48.
The Court has maintained on this point that the generally recognized
principles of international law mean that domestic remedies must formally exist
and that they be suitable for addressing the infringed legal right and effective
in producing the result for which they were designed.[16]
That is why exhaustion of such remedies should not be understood to
require mechanical attempts at formal procedures, but rather to require a
case-by-case analysis of the reasonable possibility of obtaining a remedy.[17]
In this same vein, the right to furnish proof that domestic remedies have
been exhausted as grounds for declaring a petition inadmissible does not mean
that it may "lead to a halt or delay that would render international action
in support of the defenseless victim ineffective.".[18]
49.
In other words, if processing of domestic remedies is subject to
unwarranted delay[19],
it can be inferred that they have ceased to be effective in producing the result
for which they were intended, thus rendering "the victim helpless".[20]
It is at that point that the mechanisms of international protection including
the exceptions provided for in Article 46(2) of the Convention must be applied.
50.
At the writing of this report, more than seven years have elapsed since
the events in question occurred.
Yet, domestic judicial remedies have failed to punish even one of those
responsible because of acquittal, or the lapse of statutory periods, or
unwarranted delay; nor has compensation been paid to the victims and/or their
families.
51.
Accordingly, the Commission can confirm that domestic remedies have been
exhausted or have been delayed unjustifiably.
Moreover, in their failure to provide for punishment because of
prescription or to pay compensation to the victims, domestic remedies have not
proven effective or at least up to the standard required for a decision of
admissibility or inadmissibility.
In view of the foregoing, the Commission is of the view that in the
present case the exception for unwarranted delay provided in Article 46(2) of
the Convention applies to criminal proceedings.
52.
As to the requirement that the petition be submitted within six months
(Article 46(1)(b) of the Convention), in the Commission's judgment, the
exception provided in Article 46(2)(c) of the Convention and Article 37(2)(c) of
the Regulations of the Commission apply because there has been unjustified delay
in the serving of justice.
In this regard, Article 38(2) of the Regulations states:
In the circumstances set forth in Article 37(2) of these Regulations, the
deadline for presentation of a petition to the Commission shall be within a
reasonable period of time, in the Commission's judgment, as from the date on
which the alleged violation of rights has occurred, considering the
circumstances of each specific case.
53.
Since the complaint was filed sixteen months after the alleged violation
of the rights and repeated in subsequent years, in confirming that the judicial
delays increased in frequency throughout this period, the Commission considers
that the petition was submitted within a reasonable period of time in accordance
with Article 38(2).
Consequently, in lights of Articles 46 and 47 of the Convention, the
terms for declaring the petition admissible in the present case have been
fulfilled.
The Commission now examines the facts.
The Commission considers that it is competent to review the complaint
presented by the petitioners and declares that the present case is admissible in
accordance with the requirements provided in Articles 46 and 47 of the American
Convention.
V.
ANALYSIS ON THE MERITS
A.
The facts
The prison situation and security
54.
The Commission considers it necessary to examine the prison situation
that developed in the state of São Paulo, living conditions of the inmates, the
background to the riots at that particular facility, and the chain of command
and decision-making in circumstances such as a riot, and the pattern for the use
of extreme force by the São Paulo military police.
The basic requirements for inmates in prisons at the time of the riot 55.
In September 1992, the Carandirú prison wing in which the riot and its
subsequent suppression occurred housed more than twice its permitted capacity,
as acknowledged by the Government in its prison reform plan.
Such overcrowding leads to friction amongst the inmates and between
inmates and prison guards.
A total of 7,257 prisoners were housed together in the facility.
Of this number, 2,706 were imprisoned in Cell Block 9, the scene of the
uprising.
The prisoners in this wing were "first offenders" (those
imprisoned for the first time), many of whom had not been sentenced and were
under "amparo" on presumption of innocence.
Most of the inmates ranged in age from 18 to 25.
They were housed in 248 cells, or about eight per cell, in conditions of
physical overcrowding without sufficient space for relaxation or work.
In fact, as the Commission confirmed on its on-site visit in 1995, there
was barely enough room to stand or sit side by side.
The institutional control of the prison
56.
When Fleury Filho, the former Secretary of Public Security, became
Governor in March 1991, he transferred administrative jurisdiction for state
prisons from the Secretariat of Justice to the Secretariat of Public Security.
This move was criticized by the São Paulo Bar Association since the
prisons were placed under the same authority as the Police and Prison Guards.
When riots take place in prisons, the monitoring magistrate
(juiz corrigedor da policía) and the sentencing magistrate (juiz
da vara execuções criminais) were called in to guarantee the safety of the
prisoners and decide on the actions to be taken to quell the disturbances.
In earlier incidents, the Secretary of Justice himself had been present
or actively involved in the negotiations.[21] 57.
On October 2, therefore, administrative responsibility for Carandirú
correctional and police services was centralized in the São Paulo Secretariat
of Public Security. Police
officials reporting to this Secretariat removed the potential for negotiations
by the judges who arrived at the prison, indicating to them that they should not
enter because the situation was extremely dangerous and hard to control.
58.
The Commission calls attention to the fact that a study conducted in 1988
on riots in São Paulo found that eleven uprisings had occurred between
September 1986 and April 1988; in the six occurrences in which a negotiation
strategy was used there were no deaths, whereas there were 47 (inmates and
policemen) in those in which force was used to suppress the riot.[22]
The São Paulo military police's pattern of violence
59.
At the time of the riot, the São Paulo military police had a record of
using extreme force in their fight against crime.
In 1991, 25% (1,140) of all violent deaths in São Paulo were at the
hands of the police.
During Antonio Fleury Filho's administration (1991‑1992), the
military police killed on average one person every six hours, compared with an
average of one every 17 hours during the two previous administrations
(1982‑1991) and one every 30 hours in the 1978‑1982 administration.
A Federal Commission of Inquiry of the Legislature found that 14 of the
senior officers commanding the assault on October 2 had been charged with 148
counts of homicide or attempted homicide by military courts.[23]
The State's response to the riot The
State's responsibility for guaranteeing the integrity of the inmates and
preventing outbursts of violence
60.
As the Court has stated:
"In terms of Article 5(2) of the Convention, every person deprived
of her or his liberty has the right to live in detention conditions compatible
with her of his dignity, and the State must guarantee the right to life and to
humane treatment."[24]
Consequently, the State, as the party responsible for establishments of
detention is the guarantor of these rights of detainees.
The living conditions of the inmates in the facility, which did not
conform to international standards due to overcrowding and lack of recreational
activities, created the conditions for an outbreak of friction between the
inmates that could easily escalate into acts of general rebellion with an
ensuing backlash of disproportionate force by agents of the State to bring the
violence under control. 61.
The illegal conditions in which the inmates lived, the previous riots at
Carandirú, and the lack of any strategy to prevent or avoid the escalation of
friction, as well as the absence of any negotiating capacity by the State which
could have avoided or lessened the violence of the riot are themselves
violations on the part of the State to honor its obligation to guarantee the
life and personal integrity of individuals in its care.
Furthermore, in violation of national and international law, most of the
inmates at Carandirú at the time had not been sentenced (and must therefore be
presumed innocent) and were compelled to live in highly dangerous conditions
side by side with condemned convicts.
The riot and its suppression
The State's obligation to control the riot and the proportionality of
required force
62.
That the State has the right and the duty to put down a prison riot was
maintained by the Court in the Neira Alegría case[25].
The riot must be suppressed through such strategies and actions as are
needed to bring it under control with minimal harm to the life and physical
integrity of the inmates and minimal risk to law enforcement officials.
63.
The repression by the police, as described in the petition and confirmed
by the official investigation and the opinion of experts, was conducted with
absolute disregard for the life of the inmates, demonstrating a retaliatory and
punitive attitude, wholly at variance with the guarantees that the police should
offer.
The Commission notes that the deaths did not take place in situations of
self-defense or to disarm the inmates since the prisoners' weapons were of the
homemade variety and had been thrown down on to the patio when the police
entered.
No firearms were found in the possession of the rioters nor had any shots
been fired against the police.
Their initially violent attitude was quickly overcome by the entry en
masse of the heavily armed police. The
action of the civil authorities and the magistrates supervising the prison
during the uprising
64.
According to facts furnished by the petitioners and not denied by the
State, the supervisory magistrates were notified by the Warden of the Prison as
soon as the alarm was sounded at 2:15 p.m. at which time the police authorities
were called in.
At 2:30 p.m. Commander Ubiratan Guimaraes, Chief of the Metropolitan São
Paulo police department, arrived with three battalions of shock troops,
including dogs and a heavily armed unit, and the ROTA Battalion, which
specializes in armed assaults.
The Secretary of Security transferred authority over the prison to
Commander Guimaraes.
According to testimony given before the Legislature, such a transfer of
command was done without consulting the supervisory magistrates.
There were no instructions either as to the avoidance, if possible, of
the use of deadly force.
The Governor was then away from the city and apparently was not informed
of the riot until 5:35 p.m.
65.
The Warden of the Prison declared before the Legislature that he was
prepared to negotiate with the rioters and with this in mind had approached Cell
Block 9 with a loud speaker but the police physically prevented him from
negotiating and he was pushed to one side as the police stampeded into the cell
block.
Much the same thing happened to the magistrates, who had arrived at the
prison at 3:45 p.m. and were told by the military police that there were no
conditions to negotiate.
About 5:00 p.m., the magistrates were informed that the riot was over,
but that civilians could not enter the cellblock.
They were not authorized to enter until 7:00 p.m.
In their testimony before the Legislature, the magistrates indicated that
they had seen pipes, knives, pieces of wood, chains, and stones thrown out on to
the ground as well as "many naked prisoners sitting on the ground with
their hands on their heads".
The magistrates did not ask to inspect all of the sections and cells and
after visiting the first floor of the cell block, without visiting the others
floors, they went to the Warden's offices without questioning any of the
inmates.
They left the prison at 10:30 p.m. after being informed by Lt. Col. Edson
Faroro that there were more than 50 dead.
They did not open any proceeding or investigation at that time.
The next day, they were advised that 111 inmates had died.[26]
66.
The Commission is of the view that the civil authorities of the state of
São Paulo failed to comply with their lawful responsibilities in dealing with
the riot, particularly the authorities of the Secretariat of Public Security
which, aware of the military police's violent attitude and disregard for the
right to life, sanctioned an invasion of the cell block without attempting to
isolate and pacify the rioters.
The magistrates, too, made no attempt to assert their authority since
they accepted a role wholly subordinate to the orders of the military even after
the riot had been put down, when they could have initiated an investigation in
order to preserve the evidence.
Probably, their presence alone would have prevented suffering and death;
nor did they then take any steps to control the fate of the inmates who had
survived the initial massacre, many of whom were killed in its aftermath.
The action by the police to suppress the riot
67.
It has been fully confirmed that as a result of the police action 111
inmates were killed and approximately 35 wounded.
The petition also indicates that many of the victims were killed while
they were unarmed and defenseless, and this is not denied by the State and was
corroborated in the Legislative inquiry and by independent experts.
Governor Fleury himself declared that the situation got out of hand and
widespread killing began of those who may have been leaders or participants in
the riot as well as others who happened to witness the indiscriminate slaughter
when a number of inmates attacked the police and Commander Guimaraes was injured
when a television camera exploded.
It also emerges from the expert report that the shots fired in the cells
came from the police and were fired in a single direction about fifty
centimeters above ground level, indicating that the victims were on their knees
at the time.
The investigations and testimony of survivors also indicate that many of
the inmates were killed after they had surrendered, had their hands up and were
naked for the most part.
The nature of these violations of the rights to life and personal
integrity were further exacerbated by the savage methods used to suppress the
rioters who had surrendered through the execution of inmates who had been forced
to take part in the illegal removal of bodies, the attacks against the survivors
and the beating of their wounds, the delay in providing medical care, and the
murder of wounded inmates on their way to hospitals.
Of all of the cases of massacres heard by the Commission through the
years there have been few to equal the savagery and brutality that afternoon at
Carandirú.
Actions to destroy the evidence and to prevent action by the newsmen
68.
It also emerges that some of the inmates were murdered after carrying out
orders to remove the corpses from where they had originally fallen, as part of a
systematic effort to destroy any evidence that could be used to identify the
individual police officers responsible for each death and to cloud the evidence
and the circumstances.
These actions to conceal what had happened began when the magistrates
present in the prison were prevented from entering the cell blocks at the time
of the surrender, continuing with the execution of witnesses and numerous other
actions carried out systematically to elude investigation, confuse public
opinion, and ensure impunity.
These actions documented in the parliamentary investigation include
washing away the blood from the scene of the massacre, prohibiting photographs
from being taken after the inmates had surrendered, offering conflicting reports
on police casualties and inflating the number, producing thirteen firearms
attributed to the inmates from which none of the shots fired was found to have
come, and which because of their rusty condition and the way in which they
turned up had been blatantly "planted" after the event.[27]
69.
The Director of Prison Discipline testified to Amnesty International that
he had requested that each wounded inmate removed from the prison be accompanied
by correctional services personnel.
The police denied this request and according to the deposition the first
eight inmates taken away, slightly wounded, to the Santana Hospital died before
or soon after arriving at the hospital, apparently executed on the way.[28]
70.
The purpose of some of these maneuvers was to elude and confuse
reporters. For instance, photographers were not permitted to enter even when the
uprising was already under control, and from taking photographs of the dead and
wounded that were being taken away.
One reporter, Caco Barcellos, who had investigated police conduct in the
past, was harassed, through interference with his reports and threatened to the
point that he was forced to flee the country.
Although the number of dead was known to the civil and military
authorities at 8:00 a.m. on October 3, the figures were not released to the
press until 4:30 p.m., one half hour after the polls for the municipal election
being held that day had closed.
The press was informed on the night of October 2 that "eight
prisoners had been killed in a fracas between rival bands during the riot",
when in fact the eight prisoners in question were the ones who had been slightly
wounded and taken away and killed in police custody on their way to the
hospital. |