REPORT Nº 35/08[1]

CASE 12.019

ADMISSIBILITY AND MERITS

(PUBLICATION)

ANTONIO FERREIRA BRAGA

BRAZIL

July 18, 2008 

I.          SUMMARY

1.        On June 11, 1998, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition that the Centro de Defesa e Promoção dos Direitos Humanos [Center for the Defense and Promotion of Human Rights] of the Archdiocese of Fortaleza, the Centro de Defesa da Vida Herbert de Sousa [Herbert de Sousa Center for the Protection of Life], the Center for Justice and International Law (CEJIL) and Antonio Ferreira Braga (hereinafter “the petitioners”) lodged against the Federative Republic of Brazil (hereinafter “the State,” “the Brazilian State” or “Brazil”) alleging the latter’s responsibility for violation, to the detriment of Antonio Ferreira Braga (hereinafter “the alleged victim”), of the rights recognized in Articles I, II, V, IX, XXV, and XXXIII of the American Declaration of the Rights and Duties of Man (hereinafter the American Declaration), Articles 4, 5, 7 and 11 of the American Convention on Human Rights (hereinafter “the American Convention”) and Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture (hereinafter the “Inter-American Convention against Torture”). 

2.          The petition states that the alleged victim and co-petitioner, Antonio Ferreira Braga, was unlawfully arrested by civilian police on April 11, 1993.  The following day he was tortured at the Fortaleza Headquarters of the Ceará State Police’s Robbery and Theft Division to force him to confess to the theft of a television set.  As for the facts alleged, two of the police officers involved were convicted and sentenced to a total of 6 (six) months in prison due to aggravating circumstances.  However, the Police Commissioner in charge of the station where the torture allegedly occurred and the Police Inspector were acquitted.  The sentence was ultimately confirmed and became final on May 12, 1999.  However, on June 10, 1999, the same judge who confirmed the sentence then issued another decision in which she declared that enforcement of the sentence delivered in the case was time-barred by the statute of limitations because of the time elapsed between the date the complaint was entered and the date of the conviction.  The petitioners therefore assert that the State is responsible for violations of the human rights protected under articles I, II, V, IX, XXV and XXXIII of the American Declaration of the Rights and Duties of Man and articles 4, 5, 7 and 11 of the American Convention.

3.         The State did not answer the complaint, even though on June 25, 1998 it was given an extension for purposes of providing information on the petition.

4.         In this report the Commission analyzes the admissibility requirements and finds that the petition is admissible in respect to Articles 5, 7, 8(1) and 25 of the American Convention, in relation to Article 1(1) thereof, and pursuant to its Articles 46(2)(c) and 47.  It is also admissible with respect to alleged violations of Articles 1, 6, 7 and 8 of the Inter-American Convention to prevent and Punish Torture.  The supposed violation of articles 8.1 and 25 of the American Convention were included by the Commission by virtue of the iura novit curia principle.  Further, the Commission also finds that the petition is inadmissible in regard to Articles I, II, V, IX, XXV and XXXIII of the American Declaration and Article 4 and 11 of the American Convention.

5.         Pursuant to Article 37(3) of its Rules of Procedure, the Commission will also examine the merits of the case.  On the question of the merits in this report, prepared pursuant to Article 50 of the American Convention, the Commission finds that the State violated, to the detriment of Mr. Antonio Ferreira Braga, the rights to humane treatment, personal liberty, judicial guarantees and judicial protection, recognized in Articles 5, 7, 8(1) and 25 of the American Convention, all in relation to the obligations erga omnes undertaken with Articles 1(1) thereof.  The Commission also finds that the State failed to comply with its obligation to prevent and punish torture committed within its territory, as required under Articles 1, 6, 7, and 8 of the Inter-American Convention to Prevent and Punish Torture.  The Commission then makes the pertinent recommendations to the Brazilian State.

II.         PROCESSING WITH THE COMMISSION

6.          The petition was received at the Executive Secretariat on June 11, 1998.  On June 25, 1998, the petitioners were advised that the petition had been received.  On that same date, the relevant parts of the petition were forwarded to the State, with the request that it submit information on the matter within 90 (ninety) days.

7.           On September 22, 1998, the State requested a 90 (ninety) day extension for submitting the requested information.  That extension was granted on September 24, 1998, and the State was so advised.

8.           Since no reply from the State was forthcoming, on August 31, 1999 the Commission advised it that if the requested responsive information was not supplied within 30 (thirty) days, the facts alleged in the petition could be presumed to be true pursuant to then Article 42 of the Commission’s Rules of Procedure, as long as other evidence did not lead to a different conclusion.

9.            On November 21, 2002, when the State had still not submitted information on the case, the Commission decided to apply the provisions of Article 37(3) of its Rules of Procedure and to treat the petition’s admissibility and merits at the same time.  Under Article 38(1) of the Rules of Procedure, both parties were given 2 (two) months to submit observations on the merits.

10.          The petitioners submitted information on the merits of the case on February 19, 2003.  Receipt was acknowledged on March 17, 2003 and, that same day, the information was forwarded to the State, which was given 60 (sixty) days in which to submit additional observations on the matter.  No further information relevant to the case has been received since.

III.        POSITION OF THE PETITIONERS

11.       The petitioners contend that on April 12, 1993, members of the Ceará State Legislative Assembly’s Human Rights Commission, the Fortaleza Municipal Government, its Office for the Defense of Human Rights and the Bar Association caught police officers José Sergio Andrade da Silva, Valderi Almeida da Silva and Valdir de Oliveira Silva Junior (deceased) by surprise in the act of torturing Antonio Ferreira Braga, on the very premises of the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza.

12.        The petitioners state that the alleged victim was inside a room measuring 10 square meters, with his hands tied behind his back.  He was lying face down on the floor, wrapped in a rug.  When he saw people walk into the room, forcing the door open, he screamed: “You saved my life; they were going to kill me.”  Even after being discovered, the alleged victim purportedly had to spend two more hours tied up and rolled in the rug, waiting for the examiner from the Institute of Criminology to arrive.

13.        The petitioners state that once the matter had been verified, the Ceará State Secretary for Public Security ordered the individual transferred to the Institute of Legal Medicine, where he was examined.  The examination confirmed that he had been tortured.  The means used were electric shock, beating with a cane and semi-asphyxiation using a water-filled rubber inner tube, all was reported in the media.

14.         The petitioners allege that the medical examination[2] found symmetrical lesions on Antonio Ferreira Braga’s wrists, caused by having his hands tied behind his back.  The alleged victim had bruises and scrapes on the neck, arms, shoulders, head and legs.  After his experience the alleged victim was afraid, and asked where he could be hidden, fearing reprisals from the police officers who had tortured him.  The petitioners allege further that he was not properly fed at the police station; when he was found, he had not been given anything to eat or drink for over 24 (twenty-four) hours.

15.          The petitioners assert that the alleged victim was not detained either by a court order or in flagrante; instead, he was taken into custody on suspicion of having stolen a television set.  The petitioners allege that at the time of his arrest, which was 8:00 a.m. on April 11, 1993, the subject was sitting in a bar near his home.  The police officers took him back to his house to look for the television set they had accused him of stealing.  According to the petitioners, by this time they were already hitting him, trying to force him to confess the crime.  When the television in question was not found, they took him to the Headquarters of the Robbery and Theft Division, where he was tortured until representatives of human rights organizations intervened.

16.         The petitioners contend that the Police Commissioner in charge of the Robbery and Theft Division, Sonia Maria Gurgel Matos, did not deny the accusation.  Indeed, in statements made to the press on April 13, 1993, she said that the report of the alleged torture had come from someone inside the police station.  She said she found it odd that representatives from civil society agencies should go to the precise place where the police and prisoner were.  She also admitted that she was aware of what was happening and had acquiesced to the events that occurred at the police station.  In that same statement to the press she stated that she was the one who had ordered the detainee questioned.

17.         The petitioners contend that in statements made to the press on April 14, 2003, even the Ceará Secretary for Public Security, Francisco Crisóstomo, defended the use of violence in police work.  The petitioners assert that this official even went so far as to say that the complaint was the result of a “scheme”, and the surprise visit to the station had been too coincidental.

18.         The petitioners transcribe a series of news reports on the use of violence by elements in the Ceará state police force, the sense of shared self-interest among members of the police force, the connivance of the authorities, and the tumult the news created within the public.  The Commissioner of the Robbery and Theft Division, Sonia Maria Gurgel, was removed and transferred.

19.         According to information that the petitioners reported, a police investigation of the facts was opened as case No. 011/93 on April 13, 1993 and concluded on May 6, 1993.  On May 23, 1993, the petitioners allege that the Public Prosecutor’s Office brought a complaint against the 3 (three) police officers who committed the torture, and against the Commissioner of the Ceará State Police’s Robbery and Theft Division in Fortaleza, Sonia Gurgel, and Police Inspector Francisco Girolando Batalha.  The petitioners allege further that as of June 17, 1993, Antonio Ferreira Braga, the alleged victim, had still not made his pre-trial statement before the judicial authority, despite the requests made to the judge to expedite the hearing because of the threats being made against Mr. Ferreira Braga[3].  Four months after the events in question occurred, on August 25, 1993, Mr. Ferreira Braga purportedly made his pre-trial statement before the judicial authority.

20.         The petitioners contend that the proceedings in the case moved very slowly; that the examining phase allegedly continued until April 1996 and that the final sentence of conviction was delivered on July 29, 1996, sentencing Valderi Almeida da Silva and José Sergio Andrade da Silva to 3 (three) months’ prison time.  That sentence was increased by six months based on aggravating circumstances.  The petitioners assert that both Sonia Gurgel and Francisco Girolando Batalha were acquitted on the grounds that they did not participate in the criminal act with which they were charged.  But the 9 (nine) month sentence given to the two convicted men was not confirmed until May 12, 1999, which meant that the original 3 (three) months sentence became 9 (nine) months’ prison time.  The petitioners allege that the same judge then ruled that the enforcement of the sentence was time-barred by the statute of limitations.

21.        The petitioners also contend that an internal disciplinary inquiry was instituted with the Office of the Attorney General of the State, which concluded on November 29, 1994.  It ordered that officers Valderi Almeida da Silva and José Sergio Andrade da Silva be dismissed for having engaged in torture.  The petitioners further allege that Francisco Girolando Batalha was convicted and suspended from the force for 60 (sixty) days for an abuse of power committed by arresting the alleged victim without a court order.  Commissioner Sonia Maria Gurgel was acquitted since the inquiry’s finding was that she did not participate.

22.          The petitioners conclude by asserting that there was no effective punishment for the crimes committed.  They contend that the State is responsible in respect of the violation of Articles I, II, V, IX, XXV and XXXIII of the American Declaration, Articles 4, 5, 7 and 11 and Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture.

IV.        POSITION OF THE STATE

23.       The State did not respond to the petition, even though it was duly notified of it on June 25, 1998.  Given the State’s failure to reply, and pursuant to Article 38(1) of the Commission’s Rules of Procedure, on November 21, 2002 the State was given 2 (two) months to submit its observations on the merits of the case, to which the State did not reply either.
 

V.         ANALYSIS ON COMPETENCE AND ADMISSIBILITY

A.       Preliminary considerations

24.       The Commission regrets that the State of Brazil did not exercise its right to send information, make observations, challenge the admissibility or inadmissibility of the complaint filed by the petitioners, or challenge the merits of the case within the procedural opportunities provided for in Article 48 of the American Convention and Articles 30 and 38 of the Commission’s Rules of Procedure.  It thus did not avail itself of the powers that the inter-American human rights system gives to it.  The Commission therefore considers that the State has tacitly waived its right to dispute or challenge whether the requirements for the petition’s admissibility have been met.

25.        The Commission is duly authorized to request information from the elements involved in a case, to conduct in loco investigations with regard to matters brought to its attention, and to gather the evidence that it deems relevant.  However, the State, for its part, not only bears the burden of proving the facts upon which it rests its defense but must also cooperate with the case, which includes providing the information that the Commission requests of it and all the facilities necessary for the investigation that this Commission orders[4].  The jurisprudence of the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) is that “in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.  The State controls the means to verify acts occurring within its territory.  Although the Commission has investigatory powers, it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State”^[5].

B.      Competence of the Commission ratione personae, ratione loci, ratione temporis and ratione materiae

26.       Under Article 44 of the Convention, the petitioners have standing to lodge petitions with the IACHR.  The petition names Antonio Ferreira Braga, a Brazilian citizen, as the alleged victim.  The Commission is therefore competent ratione personae to examine the petition.  The State ratified the American Convention on September 25, 1992, and the Inter-American Convention to Prevent and Punish Torture on July 20, 1989.

27.       The Commission is competent ratione loci to take up the petition because it alleges violations of rights protected under the American Convention, and the Inter- American Convention to Prevent and Punish Torture, violations said to have occurred within the territory of a State party to those instruments.

28.        The Commission is competent ratione temporis inasmuch as the obligation to respect and ensure the rights protected under the American Convention and the Inter-American Convention to Prevent and Punish Torture was already in effect for the State on the date the facts alleged in the petition were said to have occurred.

29.        The petitioners are claiming violations of the alleged victim’s right under Articles I, II, V, IX, XXV and XXXIII of the American Declaration.  The Commission notes that the petitioners themselves claim in the introduction to the petition filed with the IACHR that the facts alleged therein occurred on April 12, 1993.  Brazil deposited its instrument of ratification of the American Convention on September 25, 1992.

30.        The Commission has established that "once the American Convention entered into force (…) the Convention, and not the Declaration, became the source of legal norms for application by the Commission insofar as the petition alleges violations of substantially identical rights set forth in both instruments and those claimed violations do not involve a continuing situation”[6].

31.        According to the chronology of the facts as explained by the petitioners, all the alleged violations of the purported victim’s rights occurred subsequent to the date on which Brazil deposited its instrument of ratification of the American Convention.  Therefore according to the case law cited above, the applicable source of law in this case is the American Convention.  Thus the petition should be declared inadmissible as regards the alleged violations of the rights recognized in Articles I, II, V, IX, XXV and XXXIII of the American Declaration.

32.       Having thus resolved the matter referenced in the preceding paragraph, the Commission is competent rationae materiae, because the petition alleges violations of human rights protected by the American Convention and by the Inter-American Convention to Prevent and Punish Torture.

C.         Admissibility requirements

1.         Exhaustion of domestic remedies

33.        The petitioners allege that the remedies provided under domestic law have been pursued and exhausted.

34.         On the issue of exhaustion of local remedies, the State has not replied to any of the Commission’s requests seeking information on the matter.  The rule requiring that domestic remedies be exhausted is intended to allow the State to resolve the problem under its domestic law before having to face international proceedings[7].

35.              On this point the Inter-American Court has held that “the objection asserting the non-exhaustion of domestic remedies, to be timely, must be made at an early stage of the proceedings by the State entitled to make it, lest a waiver of the requirement be presumed”[8].  Therefore, as the State has not answered any of the Commission’s requests seeking information, the latter concludes that the State has tacitly waived the right that the Convention gives to the State to exercise this means of defense

36.        The record shows that the petition was filed on June 11, 1998, before the internal remedies were exhausted.  The record also shows that on June 10, 1999, a judgment was handed down declaring that enforcement of the convictions delivered against the persons convicted in the criminal case was time barred based on the statute of limitations, because of the period of time that had passed between the complaint reporting the facts and the date on which the conviction was confirmed[9]  The State has not entered any objections in this regard, which leads the Commission to infer that the final court ruling in the case was the one that exhausted the remedies under domestic law, as required under Article 46 of the American Convention and Article 31 of the Commission’s Rules of Procedure.

37.        Under Article 100 of Brazil’s Penal Code[10], the State must bring criminal cases at its own initiative, unless a law expressly provides that a given case must be brought at the discretion of the aggrieved party.  Thus, Law No. 9,455 of April 7, 1997, as amended by Law No. 10,741 of October 1, 2003, criminalized the offense of torture and established other measures in cases of torture, contains no provisions as to the bringing of criminal action, and thus relies on the general provisions of Brazil’s Criminal Code.

38.         The Commission observes that this issue must be taken up when examining the admissibility of the petition, which in this case coincides with the approval of the report.  It considers that domestic remedies had been exhausted in the present case.  Given the foregoing, the requirement provided in Article 46(1)(a) of the American Convention has been satisfied.

2.          Time limit for the presentation of the petition

39.         Under Article 46(1)(b) of the American Convention, in order for the Commission to admit a petition, the latter must be presented within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment.

40.         In the instant case, the Commission has already established that the internal remedies were exhausted with the June 10, 1999 decision.  The Commission observes that the petitioners in this case lodged their complaint on June 11, 1998, which was before the June 10, 1999 judgment that exhausted the remedies under domestic law.  However, the admissibility requirements are examined at the time the present report is approved.  The Commission therefore finds that the admissibility requirement set forth in Article 46(1)(b) of the American Convention has been met.

3.         Duplication of international proceedings

41.       The Commission understands that the subject matter of the petition is not pending in another international proceeding for settlement and is not substantially the same as one already examined by another international body or the Commission itself.  Therefore, the requirements established in Articles 46(1)(c) and 47(d) have also been met.

4.         Characterization of the facts alleged

42.       The Commission considers that the petition concerns facts that could tend to establish a violation of rights recognized in the American Convention and in the Inter-American Convention to Prevent and Punish Torture.  Specifically the petition concerns alleged violation of the rights guaranteed under Articles 4, 5, 7, 8, 11 and 25 of the American Convention, which concern the right to life, the right to humane treatment, the right to personal liberty, the right to judicial guarantees, the right to privacy and the right to judicial protection, and alleged violation of the obligations undertaken with Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture, which concern the State’s obligation to prevent and punish any act of torture within its jurisdiction and to take measures to ensure that its obligation is effective.

43.       It should be indicated, firstly, that Antonio Ferreira Braga, the alleged victim, has signed the petition and appears as a co-petitioner.  This leads the Commission to conclude that the State has not violated the right contained in Article 4 of the American Convention.  While acts that cause serious injury to one’s physical integrity can lead to one’s death, the torture alleged in the instant case did not materialize in such a way that it can now be alleged that the person was arbitrarily deprived of his life.  The Commission therefore concludes that the facts described do not tend to establish a possible violation of the alleged victim’s right to life.  The petition is therefore declared inadmissible with respect to this allegation.  Further, based on the interpretation of Article 11 of the American Convention, developed within the system for the protection of human rights[11], the Commission also finds that the facts alleged in the present case do not tend to establish a possible violation of that article.

44.        The petition asserts that when the alleged victim was detained, no warrant had been issued for his arrest and he was not caught in flagrante delicto.  The Commission considers that this petition does state facts that tend to establish a violation of the right recognized in Article 7 of the American Convention, and will therefore examine this possible violation when examining the merits.

45.        The Commission considers that the facts alleged could tend to establish violations of the rights recognized in Articles 8(1) and 25 of the Convention if the rulings in the case prosecuted against the authors of the acts of torture were delivered in violation of the alleged victim’s right to due process or if the rulings appear to violate any other right recognized in the Convention.  Therefore, the petition in respect of possible violations of the rights mentioned is admissible.

46.        The petition alleges acts of torture committed by agents of the State against the person of Antonio Ferreira Braga.  If the allegations are proved during the examination of the merits, they may constitute violations of Article 5 of the American Convention, as the alleged victim’s right to have his physical, mental and moral integrity protected may have been violated.

47.       The description of the facts could also tend to establish a violation of Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture.

48.       The State has entered no objection challenging any aspect of the Commission’s competence.  The petition does not appear to be “groundless” or “obviously out of order.” Therefore, the Commission finds that the present case satisfies the formal requirements for admissibility, established in Article 46(1) of the Convention and Article 32 of the Commission’s Rules of Procedure, as regards possible violations of the rights to humane treatment, to personal liberty, to a fair trial and to judicial guarantees, recognized in Articles 5, 7, 8(1) and 25 of the American Convention, and Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture, all to the detriment of Antonio Ferreira Braga.  The supposed violations of article 8.1 and 25 of the Convention were not alleged by the petitioners; however, the Commission will evaluate the facts in light of these dispositions by virtue of the iura novit curia principle.

VI.        CONCLUSIONS AS TO COMPETENCE AND ADMISSIBILITY

49.       Based on the foregoing considerations of fact and of law and without prejudging the merits of the case, the Commission declares that it is competent and finds that the instant case satisfies the admissibility requirements set forth in Articles 46 and 47 of the American Convention.  It therefore declares the petition admissible with regard to the possible violations of the rights recognized in Articles 5, 7, 8(1) and 25 of the American Convention, and Articles 1, 6, 7 and 8 of the Inter-American Convention to Prevent and Punish Torture, and inadmissible in respect of Article 4 and 11 of the American Convention, and Articles I, II, V, IX, XXV and XXXIII of the American Declaration. The supposed violation of rights recognized in articles 8.1 and 25 of the American Convention were included by the Commission by virtue of the iura novit curia principle.  

VII.       ANALYSIS OF THE MERITS

A.        Facts acknowledged for purposes of preparation of the present report

50.       The State did not challenge the petition.  Therefore, pursuant to Article 39 of its Rules of Procedure, the Commission finds that:

The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the maximum period set by the Commission under the provisions of Article 38 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.

51.       The Court has held that:

the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law…[12].

52.        Because no response to the petition was ever submitted, it must be presumed that:

53.        Police Inspector Francisco Girolando Batalha detained Mr. Antonio Ferreira Braga on a public thoroughfare on April 11, 1993, at around 8:00 A.M.  The Police Inspector did not have a warrant for the alleged victim’s arrest, nor was the latter caught in flagrante.  The alleged victim was then taken to the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza, which was then under Commissioner Sonia Maria Gurgel.

54.        At 9:00 A.M. on April 12, 1993, representatives of the Ceará State Legislative Assembly’s Human Rights Commission, the Fortaleza Municipal Government, its Human Rights Office and the Brazilian Bar Association entered the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza, where they caught police officers José Sergio Andrade da Silva, Valderi Almeida da Silva and Valdir de Oliveira Silva Júnior in the act of torturing Antonio Ferreira Braga[13].

55.        The alleged victim was found at the Headquarters of the Ceará State Police’s Robbery and Theft Division in Fortaleza, in a room measuring 10 (ten) square meters, lying face down with his hands tied behind his back and rolled up in a rug.

56.        The Expert Examination done by the Civil Police’s Institute of Criminology[14] on April 12, 1993, at 2:15 P.M. at the Headquarters of the Ceará State Police’s Robbery and Theft Division, located in Fortaleza at No. 1791 Costa Barrios Street, found that the victim was being held in a jail, called an Investigation Room, measuring 2 (two) meters long, 2 (two) meters 50 (fifty) centimeters wide; it had only one door.  The Expert also found that Antonio Ferreira Braga was on the floor, lying face down, rolled up in a rug, with his lower extremities tied and his jaw propped up on a piece of clothing[15].

57.       Once the lower extremities were untied and the rug was unwrapped, Antonio Ferreira Braga was found inside wearing only denim Bermuda shorts.  His hands were tied behind his back at the wrists, with strips of rubber.  After undergoing the necessary examinations, the subject was taken to the Institute of Legal Medicine[16].

58.         The same report states that up against the southern wall, just to the right of the body was a black suitcase. It was open and contained various pieces of rubber from an inner tube.  Also in the room was a wooden club, measuring 44 (forty-four) by 11 (eleven) centimeters in diameter and weighing 600 (six hundred) grams, a length of cable 4 (four) meters long, with a socket at one end and the other end stripped.  Also found was a cord used to tie the individual’s lower extremities, handcuffs and pieces of rubber of the kind used in a tire inner tube[17].

59.         The examination done by the Civil Police’s Institute of Criminology described in the preceding paragraph concluded that none of the items found at the site were the proper tools of a police investigation and that Antonio Ferreira Braga was being tortured.

60.         The Examination of the Corpus Delicti[18] conducted at the Institute of Legal Medicine of the Ceará State Secretariat for Public Security on April 12, 1993, found that Antonio Ferreira Braga suffered the following injuries: ecchymosis around the wrists, specifically the lower third of the right and left forearms; ecchymosis on the right shoulder; edema and reddish ecchymosis in the right pre-auricular region; ecchymosis in the spinal region; ecchymosis on the back side of the neck; bruising on the fourth toe of the left foot.  They were blunt-force injuries.

61.          The details as to the subject’s condition when found and of the cell in which he was located are graphically described with illustrations prepared by the Institute of Criminology of the Ceará Civil Police, under the Ceará State Secretariat of Public Safety[19].

62.              Concerning the investigation and prosecution of the facts, on July 29, 1996, the Judge of the 9^th Criminal District of Fortaleza, temporarily serving on the bench of Fortaleza’s 4^th Criminal District, convicted police officers Valderi Almeida da Silva and José Sergio Andrade da Silva and sentenced them to 6 (six) months in prison for grievous bodily harm, criminalized in Article 129 of the Criminal Code.  In that same decision, both Sonia Gurgel and Francisco Girolando Batalha were acquitted, on the grounds that they did not take part in the commission of the criminal offense[20].  The Public Prosecutor’s Office appealed that decision and the appeal was granted by the Ceará Court, First Criminal Chamber[21], on December 1, 1998.  This ruling added the crime of unlawful restraint, which was originally omitted.  The sentence was made final by the Judge of Ceará’s 4^th Criminal District on May 12, 1999[22] and sentenced Valderi Almeida da Silva and José Sergio Andrade da Silva to a total of 9 (nine) months under the open incarceration system[23].  However, on June 10, 1999, enforcement of the sentence was declared time-barred because more than five years had elapsed between the date of the complaint and the date of issuance of judgment.  The statute of limitations was applied to the nine-month prison sentence retroactively, one of the bases for the decision delivered[24].

63.         The internal administrative-disciplinary proceedings, which concluded on November 29, 1994, ordered the dismissal of Valderi Almeida da Silva and José Sergio Andrade da Silva, for having tortured the alleged victim[25].  Francisco Girolando Batalha was convicted and sentenced to a 60-day suspension for having abused his authority by taking the subject into custody without an arrest warrant and for having taken him to the Headquarters of the Robbery and Theft Division.  Commissioner Sonia Maria Gurgel was acquitted on the grounds that she did not take part in the acts committed[26].

64.        Antonio Ferreira Braga was not compensated, a fact presumed to be true based on Article 39 of the Commission’s Rules of Procedure, given the absence of any information indicating otherwise and the fact that the State did not challenge the charge.

B.         Right to personal liberty (Article 7)

65.        Article 7 of the American Convention reads as follows:

1.       Every person has the right to personal liberty and security.

2.       No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
 

3.       No one shall be subject to arbitrary arrest or imprisonment.

4.       Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5.         Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6.         Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

66.        Article 5, subparagraph LXI of the Brazilian Constitution, reads as follows:  No one shall be arrested except in flagrante delicto or by written and reasoned order of a competent judicial authority[27].  Article 282 of Brazil’s Code of Criminal Procedure provides that “… except in cases of flagrante delicto, incarceration may only be by virtue of a verdict of conviction or in the cases prescribed by law, and by virtue of a written order from a competent authority[28]…”.  According to these laws, the only case in which authorities may detain a suspect without a warrant issued previously by a competent authority is if the suspect is caught in flagrante delicto.

67.       The inter-American system has held that the essence of Article 7 of the American Convention is the protection of the liberty of the individual from arbitrary or unlawful interference by the State and the guarantee of the detained individual’s right of defense[29].

68.       A detention is arbitrary and unlawful if not done on the grounds and by the formalities prescribed by law, when executed without observing the procedures that the law prescribes, and when there has been an abuse of the powers of arrest, i.e., when the arrest is made for purposes other than those that the law prescribes and requires[30].  The Commission has also held that a detention for improper purposes is itself a punishment constituting a sort of sentence without trial, or an unlawful penalty that violates the guarantee against imposition of punishment without benefit of trial[31].  The Inter-American Commission has established that the term "arbitrary" is synonymous with "irregular, abusive, contrary to law"[32].

69.        With reference to detention, the Court has written the following on the subject of illegal or arbitrary detentions in relation to Article 7, subparagraphs 2 and 3 of the Convention:

[a]ccording to the first of these regulatory provisions, no one shall be deprived of his personal liberty except for reasons, cases or circumstances specifically established by law (material aspect) but, also, under strict conditions established beforehand by law (formal aspect).  In the second provision, we have a condition according to which no one shall be subject to arrest or imprisonment for causes or methods that – although qualified as legal – may be considered incompatible with respect for the fundamental rights of the individual, because they are, among other matters, unreasonable, unforeseeable or out of proportion[33].

70.        The Commission’s practice has been to examine whether a detention conforms to Article 7(2) and (3) of the American Convention.  It does this by following three steps.  The first is to determine the lawfulness of the arrest in the material and procedural sense, which means determining whether the arrest was made in accordance with the domestic laws of the State in question.  The second step is to analyze the domestic laws in the light of the guarantees established in the American Convention, to determine whether those laws arbitrary.  Finally, if the arrest was made in accordance with domestic laws that are compatible with the American Convention, the Commission then determines whether the enforcement of the law in the case in question was arbitrary[34].

71.       In the present case, the Commission observes that the alleged victim was detained unlawfully and arbitrarily.  The was arrested in a public place, in the morning, there were no signs of any kind of activity that might be grounds to suspect that he was involved in the commission of a punishable offense.  The Commission understands that the arrest was illegal because based on the facts described, the arrest was not made in flagrante; it was also arbitrary because it was made without an arrest warrant.  Thus, the individual’s right to personal liberty, as prescribed in Article 7(3) of the American Convention, was violated. 

72.        While the victim was being taken to the headquarters of the Robbery and Theft Division, “he was beaten along the way; it was even said that once at Headquarters, they would put his head in a bag of water to get him to confess to the theft of a television set”.  Upon arrival at police headquarters, he was not informed of the reasons why he was detained and was never accused of the crime of theft.

73.       The Court has held that all persons detained “have the right to live in prison conditions that are in keeping with personal dignity, and the State must guarantee their rights to life and personal integrity”[35].  The Court has also held that the State, being responsible for detention centers, is the guarantor of these rights of the detainees, which involves, among other things, the obligation to explain what happens to persons who are under its custody.  State authorities exercise total control over persons under their custody[36].

74.        The vulnerability of the detainee worsens when the detention is illegal or arbitrary.  Then the person is in a situation of complete defenselessness, which causes a definite risk of abridgment of other rights, such as those to humane and decent treatment[37].  The State must provide a satisfactory explanation for what has happened to a person whose physical condition was normal when he was taken into custody, but worsened during or at the end of it[38].

75.        Likewise, the detainee and those with legal custody or representation of the detainee have the right to be informed of the causes and reasons for his or her detention at the time it occurs, which “constitutes a mechanism to avoid illegal or arbitrary detentions from the very moment of imprisonment and, at the same time, ensures the individuals right to defense[39].

76.       Article 7(4) of the American Convention establishes positive obligations that place specific requirements upon both the agents of the State party and any third parties acting with its tolerance or permission and who are responsible for the detention[40].  The Court has written that Article 7(4) of the Convention includes a mechanism to avoid unlawful or arbitrary conduct from the moment of the deprivation of freedom and to guarantee the defense of the person detained, so that the latter and those who represent him or have legal custody of him have the right to be informed of the reasons for his detention when this occurs and of the rights of detainees[41].

77.       Based on the foregoing considerations of fact and of law and the jurisprudence cited, the Commission concludes that the alleged victim was deprived of his liberty arbitrarily and unlawfully; there was no case under investigation where his arrest could have been ordered, nor was he caught in flagrante.  The alleged victim was not brought promptly before a competent judge or tribunal for a rapid determination of the lawfulness of his arrest or to order his release, as required under the Brazilian Constitution.  Instead, he was held incommunicado at the Headquarters of the Ceará State Police’s Theft and Robbery Division in Fortaleza, where he was tortured.  Police officers were attempting to force him to a confession out of him when human rights defenders burst in on the scene.  Those human rights defenders then arranged to have other authorities contacted who put an end to the unlawful situation.

78.       From the foregoing the Commission finds that in the present case, the first and third factors that must be present for the Commission to find that a detention was unlawful and/or arbitrary are present.  The State is responsible for violation of the right to personal freedom protected under Article 7 of the American Convention, to the detriment of Antonio Ferreira Braga, by virtue of the fact that his right to personal liberty and security was not guaranteed.