REPORT Nº 55/01*

CASES 11.286 (ALUÍSIO CAVALCANTI ET AL),

11.407 (CLARIVAL XAVIER COUTRIM), 11.406 (CELSO BONFIM DE LIMA),

11.416 (MARCOS ALMEIDA FERREIRA), 11.413 (DELTON GOMES DA MOTA),

11.417 (MARCOS DE ASSIS RUBEN), 11.412 (WANDERLEI GALATI),

and 11.415 (CARLOS EDUARDO GOMES RIBEIRO)

BRAZIL

April 16, 2001

          I.        SUMMARY

            A.      Background

          1.       From February to September 1994, the Inter-American Commission on Human Rights (the “Commission”) received from the “Santos Dias” Center for Human Rights of the Archdiocese of São Paulo nine complaints against the Federative Republic of Brazil (“Brazil,” the “Brazilian State,” or the “Government of Brazil”) for violations perpetrated by state agents of the Military Police of São Paulo state.  It is alleged in the complaints that the crimes committed constitute violations of Articles I (right to life, liberty, security and integrity of the person), XVIII (right to justice), and XXIV (right to petition) of the American Declaration on the Rights and Duties of Man (the “Declaration”), and of Articles 8 (right to a fair trial) and 25 (judicial protection) of the American Convention on Human Rights (the “Convention”), in conjunction with Article 1(1) of the same (obligation to ensure and respect the rights established in the Convention).  As appears in the Admissibility Report (Report 17/98), these cases were initially processed independently; the Commission then decided to join them in order to draw up a single admissibility report.  The same will be done in relation to this report on the merits, which joins cases 11.286, 11.407, 11.406, 11.416, 11.413, 11.417, 11.412, and 11.415.  In that joint admissibility report, the Commission placed itself at the disposal of the parties to pursue a friendly settlement, and on not receiving an affirmative response in the period set, it considered that such a solution was not viable at that stage of the procedure.^[1]

          B.       Joint admissibility report 17/98, and reasons for combining the cases

          2.       In its joint admissibility report on these cases^[2] the Commission considered that it was competent to analyze possible violations of human rights protected by the Declaration and the Convention, in keeping with Articles 1(2)(b) and 20 of its Statute.  It also indicated, in the same report, that the fact that Brazil had ratified the Convention on September 25, 1992, does not exempt it from responsibility for violations of rights that occurred prior to that ratification that are guaranteed by the Declaration, which is binding.  It recalled in this regard recognition of the binding nature of the Declaration by the Inter-American Court of Human Rights.

          3.       That same admissibility report set forth the legal bases for joining the cases.  It states that Article 40 of the Commission’s Regulations sets forth criteria for separating and combining cases: (1) Any petition that states different facts that concern more than one person, and that could constitute various violations that are unrelated in time and place shall be separated and processed as separate cases, provided the requirements set forth in Article 32 are met.  (2) When two petitions deal with the same facts and persons, they shall be combined and processed in a single file.  In this respect, the Commission has interpreted Article 40 quite broadly.  The Commission has not interpreted Article 40(1) of the Regulations as requiring that the facts, victims, and violations presented in a petition must coincide strictly in time and place, for them to be processed as a single case.

          4.       The Commission then clarified that it had previously processed individual cases related to numerous victims who have alleged human rights violations that occurred at different times and places, so long as they argued that the violations originated in the same treatment.  From this it is inferred that the Commission may process, as a single case, the claims of several victims who allege violations resulting from the application of legal standards or of a scheme or practice in which they have been subjected to similar treatment.  The Commission has not only refused to separate the processing of those cases; it has also combined separate cases that meet those characteristics, so as to process them in a single case.

          5.       The Commission explained in that admissibility report that the cases presented were processed independently. The Commission considers that the accusations contained in the complaints have similar characteristics and refer to a single context.  The alleged violations were perpetrated by military police from the same São Paulo state, allegedly acting illegally, against defenseless and unarmed civilians (except for one case) and, the perpetrators have enjoyed impunity because of the sluggishness and partiality displayed by the military justice system in the processing and judging of these cases. The Commission decided, for reasons of procedural economy, to combine the cases for the purpose of preparing a single report.

          6.       Finally, in that same admissibility report the Commission  considered that it had jurisdiction to hear these cases; and that they were admissible, pursuant to the requirements established in Articles 46 and 47 of the American Convention.  It then decided to declare the admissibility of the cases presented; to send that admissibility report to the Government of the Federative Republic of Brazil and the petitioners; to place itself at the disposal of the parties for the purpose of pursuing a settlement based on respect for the rights protected in the American Convention, and to invite the parties to state within 30 days their position as to the possibility of a friendly settlement; to continue to examine the merits issues; and to publish that report in its Annual Report to the OAS.

          C.      Conclusions of this report

          7.       The Commission reaches the conclusion in this report that police agents of the State summarily executed Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati; and that state agents also gravely injured Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that the State did not comply with its commitments under Articles I and XVIII of the Declaration and Articles 8 and 25 of the Convention, nor did it offer the proper guarantees for preventing, investigating, and prosecuting those grave violations.  The Commission recommends that the persons responsible for the various violations be prosecuted and punished, and that reparation be made to the victims or their families.

           II.       ANALYSIS ON THE MERITS OF EACH CASE

         Case 11.286 (Aluísio Cavalcanti and one other person)

          A.      Summary

          8.       In February 1994, the Commission received a complaint according to which Aluísio Cavalcanti Júnior had been killed and Cláudio Aparecido de Moraes had been the victim of attempted homicide, both of which crimes having occurred March 4, 1987, in the neighborhood of Jardim Camargo Velho, in the city of São Paulo, and allegedly committed by members of the Military Police of São Paulo state José Carvalho, Robson Bianchi, Luis Fernando Gonçalves, Francisco Carlos Gomes Inocencio, Rubens Antonio Baldasso, and Dirceu Bartolo.

          9.       Aluísio Cavalcanti Júnior had been accused verbally by one of the assailant police officers of having murdered his son.  The youths were interrogated and threatened until one of them confirmed that the other was the murderer, which is why the police decided to kill them.  Both were shot in the head and their bodies taken to a thicket, where they were left.  Thwarting the will of the police, Cláudio Aparecido de Moraes survived the gunshot wounds.

          10.     On November 9, 1987, the military justice prosecutor indicted José Carvalho, Robson Bianchi, Luis Fernando Gonçalves, Francisco Carlos Gomes Inocencio, Rubens Antonio Baldasso, and Dirceu Bartolo before the Third Military Court of the state of Sao Paulo, for the homicide of Aluísio and for the attempted homicide of Cláudio.  Sergeant João Simplício Filho and soldier Roberto Carlos de Assis, who witnessed the events but did not participate directly and effectively in the crimes, were denounced for omissive conduct.

          11.     Since there has been no conviction of the accused to date, it is not possible to begin a civil action for compensation.

          B.       Processing before the Commission

          12.     This complaint was received by the Commission in February 1994.  From that date to April 1996, several statements were collected from both parties verifying the status of the judicial proceedings instituted in relation to the facts alleged.  During its 98th session, the Commission adopted admissibility report 17/98 in relation to this case, which was included in its 1997 annual report.

          C.      Positions of the parties

          13.     In the complaint it is affirmed that the domestic remedies, apart from excessive delays, have proven ineffective, as none of the accused was imprisoned or convicted as of seven years after the date of the events in question.  Later, the petitioner affirmed that the proceedings has already taken eight years, and demonstrated that certain procedural matters would lead to the exclusion of the evidence and the need to reconstruct it, which would result in an even greater delay in bringing to justice the persons responsible for the attacks on Aluísio and Cláudio.  The petitioner requested not only reparation for the unjustified death of Aluísio and for the attempted homicide of Cláudio, but also a condemnation of the Brazilian State for not having investigated, prosecuted, and punished the persons responsible for those crimes.  It also requested that it be declared that the Brazilian Government had not abided by its international obligations, in breach of Articles I, XXV, and XXVI of the American Declaration and Articles 8(1) and 25(1) of the American Convention.

          14.     The Brazilian Government argued that all the disciplinary measures had been adopted and that the corresponding judicial proceeding was under way.  It reported that agents Francisco Carlos Gomes Inocencio and Dirceu Bartolo had been expelled from the police force by administrative decision of the General Commander of the Military Police of São Paulo state, and on several occasions it provided information on the status of the respective criminal actions.  The Brazilian State, however, did not respond to the Commission’s repeated requests for its position on the merits issues, answering the facts set forth in the complaint.

          D.      Analysis by the Commission

          1.       Right to life and physical integrity

          15.     In relation to the alleged violation of the right to life and physical integrity of Aluísio Cavalcanti Júnior and Cláudio Aparecido de Moraes, the Commission reached the conclusion that there were sufficient indicia to lead to the conclusion that the two youths had been arbitrarily wounded by state agents.

          16.     The first and most important evidence supporting this conclusion is the statement by Cláudio Aparecido de Moraes himself.  According to his testimony, after his arbitrary detention the agents threatened him and Aluísio on several occasions, such that they had been subject to physical and psychological torture before being impacted by the bullets.  Cláudio even stated that one of the police agents had left only one bullet in the revolver and pulled the trigger twice with the gun on his head, in the style of “Russian roulette.”  Finally, the victim confirmed that one of the police agents had ordered him to lie down on the floor, put his hands between his legs, close his eyes, and when he did so, “he heard two shots and felt a blow in the chest and his head burning,” as he was grievously injured.

          17.     In their statements, all the police agents involved confirmed that the youths had been detained and taken to an uninhabited locale.  They also confirmed that Lt. Carvalho clearly expressed the desire to kill Aluísio, as he was convinced that he had killed his son. Although none of the agents who made statements confirmed that they had witnessed the execution, several said they had seen Carvalho move away from the others, and return only after some shots were heard, whereupon he was heard to have said that the youths had been “judged and convicted.”

          18.     Also important is the conclusion of the police-military inquiry and the administrative procedures undertaken against the police agents.  In these cases, after an analysis of the evidence collected, the veracity of the facts was confirmed and it was concluded that the prisoners were guilty.

          19.     Accordingly, although the respective criminal proceeding has yet to conclude, there is ample evidence that points to the materiality of the facts (the death of Aluísio and the grave lesions to Cláudio) and these having been the work of agents of the Military Police for São Paulo state.  Consequently, the Brazilian State is responsible for the violations these two youths suffered, in violation of Article I of the American Declaration. 

          2.       Judicial guarantees and due process of law

          20.     It is found in the documents and in the information presented by the Government and the petitioners that the judicial proceedings related to the crimes committed against Aluísio and Cláudio were extremely slow.

          21.     Information drawn from the proceedings indicates that on several occasions hearings failed to take place, and were rescheduled, since defense counsel was not present.  The evidence obtained was voided on formalistic grounds, undercutting the effectiveness of the process.  These facts indicate that a dilatory strategy was adopted by defense counsel, indeed accepted by the prosecutor and the military justice system, which ended up prejudicing the normal course of the proceedings, causing a great delay, to the detriment of justice and of the victim’s rights.

          22.     Furthermore, the petitioners showed that the requests by the prosecutor that the proceedings be converted into an investigative procedure were justified and requested in the interest of the proceedings, as it was intended to produce additional evidence to present at trial.

          23.     Given all this information, the Commission understands that although there are judicial remedies to which the victims of human rights violations have access in the case analyzed here, those remedies were neither prompt nor effective.  There was excessive delay on the part of the State in prosecuting the accused for the violations, and more than eight years after the fact, the persons responsible had yet to be convicted.  Accordingly, the Brazilian State violated Articles 8 and 25 of the American Convention.

          Case 11.407 (Clarival Xavier Coutrim)

          A.      Summary

          24.     On September 6, 1994, the Commission received a complaint according to which Clarival Xavier Coutrim, 22 years old, had been killed on April 20, 1982, in eastern zone of the city of São Paulo by bullet wounds allegedly fired by military police agents Júlio César Passos da Silva, Nelson de Freitas Nascimento Filho, Rodolfo Cosin Filho, Hermes Simplício da Silva, Celso de Castilho, and Miguel Portos Neto.

          25.     The victim was alleged to have been detained by the agents and then taken to an uninhabited locale, where he was executed.

          26.     A military police inquiry was opened.  There, it was concluded that although there was an indication that the agents had committed the offense, there was also evidence that ruled out illegal conduct, based on the consideration that they were performing their duty and acting in legitimate self-defense.  The inquiry was archived and later re-opened upon the presentation of new evidence, whereupon it was decided that the accused should be held in preventive detention.  A criminal suit was brought before the 3^rd Military Court of the state of Sao Paulo.

          27.     The respective action for compensation was not allowed to go forward by the Sixth Court (6a. Vara da Fazenda Pública) of the state of São Paulo.

          B.       Processing before the Commission

          28.     The complaint was received by the Commission in September 1994; the pertinent parts were forwarded to the Government on November 28, 1994.  On May 25, 1995, the Government answered the Commission’s request for information. On August 10, 1995, the Commission received information from the petitioner on the prosecution of the accused. The last statement by the Brazilian government is dated November 15, 1995. The case was considered admissible by the Commission, which approved publication of Admissibility Report 17/98 during its 98th session, and its inclusion in the Annual Report for 1997.

          C.      Position of the parties

          29.     The complaint alleges that the victim was detained for no apparent reason, there being testimony by police agents who were present who state that they have discussed with the agents who took Clarival that he was not the suspect they were looking for.  Nonetheless, Clarival was taken and later executed. His body was transported to the hospital, where the agents declared that the victim had been shot during an exchange of fire with “bandits.”

          30.     Petitioners also allege in the complaint that the proceedings had been prolonged, and that more than 12 years after the events in question the matter had not been the subject of a judicial decision.  The petitioner reports that the proceedings were subject to excessive delay and that on June 20, 1995, the accused were placed on trial.  On that date, four of the agents denounced were convicted to 12 years in prison, and the other two were acquitted for insufficient evidence.   Of the ones convicted, three were given the benefit of release pending appeal, while the fourth was a fugitive.

          31.     According to the petitioners, the judgment handed down in the criminal proceedings recognizes that the military police agents accused shot the victim, who had not committed nor was about to commit any unlawful act, was unarmed and defenseless, and put up no resistance to the police authorities.  Nonetheless, more than 13 years after the fact, the case was still pending a final decision, and the police agents were free.  Similarly, the action for compensation sought by the victim’s mother was not subject to a judicial decision, on the basis that the police had not been proven guilty.

          32.     In terms of the answer to the complaint submitted in September 1994, the Brazilian Government merely reported on the status of the judicial proceedings related to Clarival’s death.  The State later presented new information on the proceedings.  Nonetheless, at no time did it contest the facts set forth in the complaint, and did not state its position on the merits.

          D.      The Commission’s analysis

          1.       The right to life

          33.     Based on the analysis of the documents and the information provided by the parties, the Commission concluded that Clarival Xavier Coutrim was summarily executed by agents of the Military Police of São Paulo state.

          34.     The agents involved took Clarival’s corpse to the hospital and said he had died in an exchange of gunfire.  In effect, the first version they gave of the facts indicates that they had sighted suspicious-looking persons who were in a lot in the São Paulo neighborhood of São Mateus.  On attempting to verify who they were, the agents were shot at, sparking a confrontation in which Clarival was killed. But this version found no support in the statements by witnesses who were heard during the proceedings.  One of them, who knew Clarival, said that she had seen them taking him in a vehicle, though she hadn’t witnessed his detention.  Another witness observed Clarival conversing with police agents and entering a vehicle; it was later found out that he had been killed that day. These facts were witnessed by the victim’s brother.  All these witnesses state that Clarival was shirtless, talking with police agents, which would have made it impossible for him to conceal a weapon.

          35.     Furthermore, one must also consider that the description of the facts by the accused is plagued by contradictions.

          36.     Finally, the Commission understands that the conclusions of the medical examiner’s opinion are important; they reveal that the six bullets that impacted Clarival, given where they were lodged in his body, could not have been shot at the victim in flight, in the midst of an exchange of gunfire. It was verified that none of the bullets penetrated him from the side; they all entered the victim from the front. The wounds indicate that the victim was killed without defending himself at all, i.e. summarily executed.  Therefore, the Government of Brazil violated Article I of the American Declaration.

          2.       Judicial guarantees and due process of law

          37.     Several hearings were suspended and rescheduled for dates far into the future, which resulted in excessive delay in the conclusion of the criminal proceedings.  Because of this delay, the judgment of the accused came many years after the facts, and even after the guilty verdict in the trial court, the accused are still free.

          38.     More than 13 years after the murder of Clarival, there had yet to be a final judgment, conviction, and sentencing of the persons responsible for his death.  That temporary lapse is an assault on the validity of the judicial remedy begun, and the Commission considers that the domestic remedies were not effective in the case in question.

          39.     Apart from that, the proceedings against the treasury of São Paulo state brought by the victim’s parents, seeking to hold the state liable for the conduct of its agents, and compensation for Clarival’s death, were not allowed to go forward. That was due to the fact that the judge understood there to be a lack of evidence of liability on the part of the police agents.

          40.     The Commission understands that the failure of the criminal proceedings to draw to a conclusion within a reasonable time had a notable effect on the compensation action.  And although it is possible to pursue a new action for compensation after the criminal conviction, the effectiveness of this judicial remedy will also be gravely affected by the enormous time that has lapsed between Clarival’s death and reparations therefore by the state of São Paulo.

          41.     In view of the foregoing, the Commission concluded that the Brazilian State violated Articles 8 and 25 of the American Convention. 

        Case 11.406 (Celso Bonfim de Lima)

          A.      Summary

          42.     In September 1994, the Commission received a complaint reporting that Celso Bonfim de Lima, 18 years old, restaurant employee, had been hit by a bullet shot by military police agent Aurino Tavares da Silva, and that the wound suffered left him paralyzed.

          43.     According to the complaint, on February 26, 1983, Celso had worked in the restaurant until 11:00 p.m. and then, in view of the late hour, had been authorized to spend the night in the restaurant.  The military police agents received information that there were strange movements in the locale, and they decided to check what was happening.  Once they reached the place, they saw Celso sleeping, shouted at him to get up and open the door, and, when he obeyed their request, was shot by the above-named agent.

          44.     On March 13, 1984, military police agent Aurino Tavares da Silva was charged with attempt of aggravated homicide before the Third Military Court of the state of São Paulo. He was tried 10 years after the fact, whereupon he was convicted of grievous bodily injury and sentenced to two years imprisonment, with the right to seek a suspended sentence. The victim filed an action for compensation before the Seventh Court (7a. Vara da Fazenda Pública) of the state of São Paulo, which was ruled admissible in the first instance, and affirmed by the appellate court. 

          B.       Processing before the Commission

          45.     The complaint was received in September 1994 and forwarded to the Government of Brazil on May 30, 1995.  On February 20, 1996, the petitioner was sent the Government’s final arguments, and that same day was informed that the procedure provided for in the regulations had concluded. On April 19, 1996, final information was received from the petitioner.

          46.     In June 1996, the Commission sent a note to the Government of Brazil and to the petitioner placing itself at the parties’ disposal to pursue a friendly settlement. Nonetheless, no answer was received within the pre-established time frame. In the 98th session, the Commission approved publication of Admissibility Report 17/98 and its inclusion in the Annual Report for 1997.

          C.      Position of the parties

          47.     The petitioners alleged that the criminal action instituted by the military courts was slow, that the penalty imposed was too light in relation to the crime committed, and that the agent was not detained for even one day, which led them to demand that the Brazilian State be found responsible for violations of Articles 4, 5, and 8 of the American Convention and Articles XVII  and XXIV of the Declaration.  The petitioner also reported that the appeal that questioned the insufficiency of the penalty imposed on the accused was dismissed, as the Tribunal immediately declared that the punishability of the agent was extinguished.  Finally, the petitioner clarifies that the agent continued to be a member of the police force of the state of São Paulo.

          48.     In its answer, the Brazilian State reported that the police agent had been convicted and that the State proposed to pay compensation to the victim, and the respective judgment on compensation is now in the execution stage.  The Brazilian State did not challenge the facts described in the complaint, alleging only that the judicial proceeding follow the parameters and procedures established in the Military Criminal Code.  It clarified that the penalty was reduced because it was considered that agent Aurino fit under the consideration of voluntary abstention, pursuant to Article 31 of the Military Criminal Code, as he himself shot Celso Bonfim de Lima, though the revolver was loaded with several bullets.  At no time did the Brazilian Government allege that it had not violated the victim’s right to physical integrity and to the guarantees of due process.

          D.      The Commission’s analysis

          1.       Right to physical integrity (Article I of the Declaration)

          49.     A first point that appears to indicate the arbitrariness of the police action that resulted in the victim’s invalidity in this case is the effort by the agents accused to create a situation of confrontation.  Apart from alleging that the victim was not alone in the interior of the establishment and that his accomplices had fled, they stated falsely that Celso was armed and had shot them.

          50.     It was found in the investigations, however, that it had not been possible for someone else to be in the interior of the locale and to flee, since the examination of the locale showed that the doors were locked from inside and that only one had been violently opened from outside, for the agents to enter the locale.  Apart from this, it was found that the victim was unarmed and that the revolver that the agents alleged  had been used against them was, in reality, his employer’s property.

          51.     Based on the victim’s statements, he was sleeping in the establishment when the agents awoke him and told him to open the door.  While he was obeying, he was hit by a bullet.

          52.     The circumstances at the crime scene support this description of the facts, as they show that there was no exchange of gunfire or assault by Celso, who was there merely because he was an employee and had worked late, which was confirmed by the owners.

          53.     In the proceedings before the military criminal court, it was concluded that the identity of the perpetrator of the crime was “unquestionable.”  The evidence indicates that Celso was defenseless and did nothing that could have motivated the police conduct.

          54.     Having established the foregoing, the Commission observes that the grave harm that Celso suffered was the result of the unsuitability and disdain for human life of the police agents involved, who approached Celso violently, did not give him a chance to explain why he was at that commercial establishment, and immediately shot him without having to do so. It should be added that given the location of the wound, the fact that the victim survived had nothing to do with the police.

          55.     Accordingly, the right to physical integrity of Celso Bonfim de Lima was not respected by agents of the São Paulo state police; accordingly, the Government of Brazil is responsible for violating Article I of the American Declaration.

          2.       Judicial guarantees and due process of law

          56.     The Commission understands that the criminal proceedings in which the accused was judged came no less than ten years after the facts and were too slow. In addition, the remedy sought by the accusing party to question the light sentence imposed was dismissed.  That delay ended up giving way to the statute of limitations on the State’s criminal claim.

          57.     The Commission concludes that the State failed to uphold its obligation to ensure Celso’s right to judicial protection and due process of law.  The police agent responsible for the violent crime against an innocent person who was paralyzed as a result did not serve even one day in prison, and the punishability of the crime was extinguished.  Moreover, the criminal police agent continued to perform his normal activities as a member of the military police. The judicial remedy offered by the State was not effective, and so it is responsible for breaching Articles 8 and 25 of the American Convention.

          Case 11.416 (Marcos Almeida Ferreira)

          A.      Summary

          58.     In September 1994, the Commission received a complaint that Marcos de Almeida Ferreira, 18 years of age, suffered a gunshot wound, leaving him paralyzed, and it was fired by military police agent Elcio Vitoriano on August 31, 1989, as the victim was going to a bakery in the eastern zone of São Paulo.

          59.     Marcos had been mistaken for a suspect who was being pursued by the military police agent, and, not having reacted, suffered a gunshot wound in the lumbar region.

          60.     The police agent was accused of committing the crime of grievous bodily injury, with treachery, by the Fourth Military Court of the state of São Paulo.  The prosecution of the accused was initially set for March 1995, but due to several dilatory procedures, it did not happen.  An action for compensation was brought before the Ninth Court (9a. Vara da Fazenda Pública) of the State of São Paulo which was declared partially admissible in the first instance.

          B.       Processing before the Commission

          61.     The report was received in September 1994, and forwarded to the Government of Brazil in December that same year.  The Government presented its answer in July 1995.  As of February 1996, the Government stopped answering the Commission’s requests for information.  Admissibility Report 17/98 was approved and published in the Commission’s Annual Report for 1997.

          C.      Position of the parties

          62.     The complaint stated that police agent Elcio Vitoriano had been informed of an attempted robbery, which is why he undertook the pursuit of a person he mistook for the culprit. Nonetheless, at no time did he attempt to find out the facts and the responsibilities.  After the pursuit, Marcos was shot in the lumbar region. Later, the agent attempted falsely to establish that the victim had put up resistance, for which the victim Marcos Almeida Ferreira was tried for those acts before the regular courts.  At trial, Marcos was acquitted; the judgment was clear that he had been the victim of the stubborn determination of an agent “without preparation to use the uniform,” with a “homicidal” and “truly criminal” state of mind.

          63.     The petitioner also alleged that six years elapsed from the time of the underlying facts until the police agent accused was convicted, and that one year after conviction at trial, a final decision had yet to be reached in the case, and the police agent continued at liberty, thus the petitioners feared that the case would remain in impunity, for at the time of the complaint it was likely that the statute of limitations on the State’s punitive claim would run.

          64.     The Government of Brazil presented its answer on June 15, 1995, when it reported that the accused had been judged on March 27, 1995, and sentenced to three years imprisonment; the proceeding was then referred to the instance in charge of executing the judgment.  The Brazilian State merely reported on the conclusion of the proceeding and at no time denied the facts presented by the petitioners, nor did it address the merits of the case.

        D.      The Commission’s analysis

          1.       Right to physical integrity

          65.     The version of events described by the victim is fully supported by all the evidence collected in the first two judicial proceedings related to the facts. The situation of resistance, affirmed by police agent Elcio, was not supported, not even by the prosecution witnesses heard in the first judicial proceeding against Marcos. Indeed in this proceeding, the Public Ministry itself called for the acquittal of the accused, Marcos, because the evidence collected during the judicial inquiry had made it clear that what happened in fact was an “aggressive and abusive action on the part of military police agent Elcio Vitorino”; and it even called for the agent to be held liable for the very grave consequences of his acts. It was proven that Marcos was unarmed, that he committed no crime, and that he put up no opposition to the police action.

          66.     In effect, Marcos was acquitted of the crime of resistance, and a copy of the proceedings was sent back to the Public Ministry, which, also convinced of Elcio Vitorino’s guilt, charged him with grave bodily assault.

          67.     In the face of all this evidence, the Commission understands that the petitioners proved that an agent of the São Paulo state security force had violated the right to physical integrity of Marcos Almeida Ferreira; accordingly the Brazilian State has violated Article I of the American Declaration.

          2.       Procedural guarantees and due process of law

          68.     The abusive and violent attitude of military police agent Elcio Vitorino had very grave and permanent consequences for the victim, who has lost his mobility forever.

          69.     Such consequences should be attenuated in the best possible manner to make reparation, albeit partial, for the harm suffered by the victim.  In this regard, the Public Treasury of São Paulo state ruled that the compensation act brought by Marcos was partially admissible, ruling that he has the right to a lifetime pension and compensation for the moral damages suffered.

          70.     Nonetheless, part of the reparation to which the victim has a right in these cases is the prosecution and punishment of the persons responsible for the criminal act committed against him.  The Commission understands that on this point the Brazilian State did not guarantee Marcos his rights to due process of law and judicial guarantees.  Although a criminal action was begun in the prosecution of Elcio Vitorino, that proceeding ended in conviction of the accused only six years after the crime was committed, and afforded him the benefit of release pending appeal.  In this way, the verdict was not effectively enforced, and, due to the short penalty imposed and the delay in processing the appeals, there is a risk that the statute of limitations on the State’s criminal action will run in relation to this crime.

          71.     Accordingly, the Commission understands that the domestic remedies were not effective because of the delay, and so Marcos Almeida Ferreira was not guaranteed his right to due process of law or his right to the guarantee of seeing the person responsible for the grave violations of which he was the victim brought to trial, prosecuted, and punished. In this regard, the Brazilian State has violated Articles 8 and 25 of the American Convention. 

          Case 11.413 (Delton Gomes da Mota)

          A.      Summary

          72.     The Commission received a complaint in September 1994 according to which Delton Gomes da Mota, 20 years old, had been killed by military police agents Gilson Lopes da Silva and Maurício Correa da Silva on March 14, 1985.

          73.     It appears in the complaint that the victim was with some friends on a street in northern São Paulo when they were approached by police agents who were looking for a drug trafficker believed to be in the region. The agents began to shoot at the group, which dispersed.  Fleeing, Delton had thrown himself into a stream and then went to a thicket, where he was hit by four bullets from a firearm.

          74.     In October 1985, military police agents were accused before the Third Military Court of the state of São Paulo for the aggravated homicide of Delton Gomes da Mota.  His parents filed an action aimed at declaring state responsibility for the death of their son; in 1997 the action had been at a standstill for more than three years, awaiting the conclusion of the criminal proceedings.

B.       Processing before the Commission

          75.     The Commission received the complaint on September 15, 1994, and forwarded the pertinent parts to the Government of Brazil on December 13, 1994.  On June 15, 1995, the Government of Brazil presented its answer, reporting on the status of the proceedings.  Later, and on several occasions, the parties informed the Commission as to the development of the criminal proceedings related to the crime in question.  Nonetheless, as of April 25, 1996, the Brazilian State ceased responding to the requests for information from the Commission.  During its 98th session, the Commission approved Report 17/98, in which it considered this complaint admissible; that report was published in the Annual Report of the Commission for 1997.

          C.      Position of the parties

          76.     In the complaint submitted in September 1994, the petitioner alleges that Delton Gomes da Mota had been arbitrarily attacked by police agents who were looking for a drug trafficker from the region, while talking with friends.  Immediately thereafter, the agent had summarily executed the victim, with no apparent motive.

          77.     The petitioners also state that nine years have elapsed since the facts, without the accused having been judged responsible for Delton’s death.  In a later statement, the petitioner reported that the date of the judgment was postponed nine times, and that ten years had gone by with no final decision in the case.

          78.     In its answer, the Government of Brazil alleged that the process of investigation in the death of Delton Gomes da Mota was still before the Third Military Court of the state of São Paulo.  It asserted that the accused, Maurício Correa do Nascimento, had been sentenced to 24 years of penitentiary, but that information was refuted by the petitioners, who alleged that the sentence referred to another crime committed by the same agent.  The Brazilian State did not contest the truthfulness or accuracy of the facts and circumstances of the crime, as described by petitioners, nor did it make any statement as to the merits.

          D.      The Commission’s analysis

          1.       Right to life

          79.     It is clear from the statements taken from persons who witnessed the facts and the victim’s family that the approach to and execution of the victim was arbitrary.

          80.     The file shows the lack of suitability and disdain for human life of the agents involved, who approached the youths in a totally irregular fashion.  They assumed that they were drug traffickers, without any prior verification of their identity.

          81.     In addition, the wounds suffered by the victim indicate extreme violence in the arrest.  If the agents’ objective had really been to keep the youth from fleeing, or hold him for questioning, it would have sufficed to immobilize him.  Nonetheless, the shots entered Delton in vital regions (the chest and head), which indicates the crime of homicide.  For these reasons, the Commission understands that the Brazilian State, through the action of police agents Gilson Lopes da Silva and Maurício Correa da Silva, violated the right to life of Delton Gomes da Mota, provided for in Article I of the American Declaration.

          2.       Procedural guarantees and due legal process

          82.     The judicial proceeding for inquiring into the responsibilities for the death of Delton was extremely slow and at times appeared to reflect a lack of interest on the part of the military judicial authorities in promptly and effectively concluding the case.

          83.     This is the Commission’s understanding considering, for example, that the trial of the accused failed to start on the dates set eight times.  In addition, the time between the rescheduled hearings was sometimes excessive, reaching the extreme of 14 months in one case.

          84.     This delay, in addition to setting back the judicial action to which Delton’s family members have a right, in order to see the assassins of their son put on trial, also kept them from receiving timely compensation for the tragic incident, as the action for declaring the state’s responsibility for Delton’s death was at a standstill, awaiting a decision in the criminal proceedings.

          85.     In view of the foregoing, the Brazilian State violated Articles 8 and 25 of the American Convention, as due process of law and the procedural guarantees to which the victim’s family members have a right were not observed in the procedures cited.