In spite of some legal instruments adopted by the Brazilian government against torture and abuse, the process of abiding by UN recommendations is far from expected. Abuses by policemen are still frequent. The investigation of crimes committed by policemen is still done by inefficient and partial courts. The prison system is in a precarious state, with overcrowded jails, exceeding of detention times, and absence of information to the families about the situation of the inmates.

BRAZIL AND THE INTER-AMERICAN SYSTEM FOR HUMAN RIGHTS PROTECTION

* Liliana Tojo

** Ana Luisa Lima

 This article deals with the work done by the organizatios of the Inter-American System for Human Rights (ISHR), between October 2003 and September 2004, concerning particularly the appeals system and the individual cases against Brazil before the Inter-American Court and the Inter-American Commission for Human Rights.

I – THE INTER-AMERICAN SYSTEM FOR HUMAN RIGHTS PROTECTION

 The American Declaration of Rights and Duties of Man, approved by the IX Conference in Bogotá in 1948, was the first landmark for the protection of human rights in the American continent. It was followed by the American Human Rights Convention[1], signed in 1969 in San José de Costa Rica, and later on by other specific instruments for protection.

 The San José Agreement institutionalized the Inter-American Court and Commission for Human Rights as a framework for protection of the rights defined in it. Although the Convention took effect in 1978, the Brazilian State only ratified it on September 25, 1992, and did not recognize then the mandatory Court jurisdiction, which happened only through the Legislative Decree #89, in December 1998.

 The importance of these two bodies lies mainly in their ability to work as an appeals organism, receiving petitions from the victims or from organizations representing them on cases of human rights violations that were not properly dealt with by the countries’ internal justice systems.

 The fundamental role of the Inter-American Commission for Human Rights is to promote human rights compliance and protection through research, reports and mainly through recommendations to member-States. It also answers questions about Human Rights when consulted by member-States. Article 44 of the American Convention allows access to the Commission, with the goal of denouncing or complaining about disrespect to human rights recognized in the Inter-American treaties, to any person or group of persons, or to non-governmental organizations recognized in one or more of the Organization of American States (OAS) members. But there are a number of requirements for appeals to be admitted, according to Article 46 of the American Convention. These requirements concern the exhaustion of internal appeals; the correct input, in the form, of some data about the petitioner; pendency; and the maximum delay of six months, after the final domestic decision, for the person or organization to present a case.

 As it is the first body to process individual petitions, the Commission writes a Final Report that points out whether the State was indeed responsible for the alleged violations, and draws recommendations to compensate the victim and prevent similar cases.

 According to Article 61 of the American Convention, the Commission and the member States may forward cases to the Court’s appreciation. The Court has jurisdiction to examine any case related to the interpretation and application of the San José Agreement’s dispositions. The IRHC will submit a complaint in case the Final Report’s recommendations are not followed.

 The Court’s decisions are final and allow no appeals. When it rules on a specific case that a member-State was responsible for the violation of a right protected by Inter-American law, the Court orders the State to ensure that the victim has his or her violated rights and liberties assured, and to fully compensate the violation. International law requires not only possible financial compensation but also a guarantee that it will never happen again, i.e., the State’s obligation to adopt any necessary measure to avoid repetition of the violation.

 According to data from the Commissions’ last published Annual Report (2003)[2], it received last year 1,080 complaints about alleged violations of human rights protected either by the American Declaration of Human Rights and Duties or by the American Convention; 42 of those concerned Brazil.

II – DECISIONS ON BRAZILIAN CASES IN THE IHRC AND IN THE COURT IN 2004[3]

 The decisions listed below are of great importance to enforce human rights in Brazil, not only because of their compensatory character but also because of their preventative nature, both embedded in ICHR’s recommendations and in the provisional measures of the Court.

José Pereira Case – first Brazilian case of friendly solution

 The José Pereira Case was a landmark in the defense of human rights in Brazil: for the first time the Brazilian State took responsibility for acts of private persons before the Inter-American System for Human Rights Protection.

 In 1989, when trying to escape from the Espírito Santo Ranch, in the state of Pará, then 17 year-old José Pereira has seriously injured on the right hand and eye and another peasant was killed. The youngster had been attracted there by false promises about the work environment, but was detained in the ranch and forced to work in illegal and inhuman conditions along with 60 other rural workers.

 In 1994, CEJIL and the Pastoral Commission on Land (CPT) brought the José Pereira Case to the Inter-American Commission for Human Rights, against the Federative Republic of Brazil. The petitioners stated that the facts constituted an example of the lack of protection and guarantees by the Brazilian State, which did not adequately respond to complaints about these practices that are clearly common in the region. They also alleged disinterest and inefficiency on the part of Brazilian authorities during the investigation and prosecution of the murderers and the accused of labor exploitation.

 In September 2003, the petitioners and the State signed an agreement for a friendly solution, the first ever signed in the country inside the Inter-American System for Human Rights Protection. The Brazilian State recognized, in the agreement, its international responsibility for the violation of human rights protected by the Inter-American norm.

 In the agreement a series of commitments were established relating to the judgment and punishment of the accused, as well as measures for financial compensation, prevention, legislation change, enforcement against and punishment of slave labor, and education against slave labor.

 The agreement between the parts was sanctioned by the ICHR on October 24th, 2003[4]. The Commission currently overviews items of the agreement still to be executed.

Corumbiara Case – merit analysis

 This is one more case of abuse committed by policemen against landless workers with the support of landowners. These massacres, such as the ones that took place in Corumbiara and in Eldorado dos Carajás, are common in the region and the accused remain unpunished of clear violations of human rights even after many recommendations of international organizations.

 While attempting to enforce a judicial order obtained by the owner of the Santa Elina Ranch, located in Corumbiara, state of Rondônia, the military police set off on an operation to expel landless workers who had occupied the ranch in July 1995. The operation resulted in the death of workers and injured 53 of them, including summary executions, torture, and humiliations of the peasants.

 The complaint was presented to the ICHR through a petition against the Federative Republic of Brazil. Signatories of the petition where CEJIL, the Landless Workers Movement, Center for the Protection of Human Rights in the Archdioceses of Porto Velho, Teotônio Vilela Commission and Human Rights Watch/Americas.

 In March 2004, the final report on the case was published[5]. In it, the ICHR concluded that the State was responsible for the violation of the American Convention in its Articles 4 (right to life), 5 (personal integrity), 25 (judicial protection), and 8 (judicial warrants). The Commission also concluded that there was violation of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.

 The Commission recommended a complete, impartial, and effective investigation of the facts by non-military entities. It stated that, besides the due compensation to victims or their relatives for the violations, preventative measures should also be adopted to avoid the repetition of similar cases. Above all, and in order to fight impunity and assure rights, protection and judicial warrant, the Commission recommended modifying Article 9 of the Military Penal Code, Article 82 of the Military Penal Procedures Code, and any other domestic legislation that might avoid the investigation of human rights violations by military policemen.

Jailton Neri Case – merit analysis

 This is another complaint about violations of human rights committed by military policemen. Although one cannot conclude that this murder case was triggered by racial discrimination, it is pertinent to consider the analysis of the influence of race and social position in the practice of violent acts by policemen.

 The ICHR has indeed expressed its worry about violence against children and teenagers, especially when violations occur under the influence of racism or socioeconomic factors. According to the Commission’s report, social indicators prove that the Afro-Brazilian population is more likely to be persecuted and prosecuted than the rest of the population. In a set of 265 investigations, most of the murdered children and teenagers are poor, male, blacks, and mulattos.

 Jailton Neri da Fonseca had exactly that profile. He was a 14-year-old Afro-Brazilian when military policemen illegally detained him in December 1992, without a warrant, without any flagrante delicto, and in total opposition to what is established in the penal legislation or in the Child and Teenager Statute. The police pretext was the interrogation of Jailton about drug dealing in Rio’s shantytowns.

 According to witnesses, who remained anonymous for fear of reprisals, the military policemen dragged the youth’s body to the Ramos Beach in Rio de Janeiro. Policemen produced contradictory statements regarding who had released the youth, and also about the time and location of his release. Besides, ballistic tests confirmed that the bullets found in his body came from the gun of one of the policemen of the Ramos Police Station.

 The case was presented to the Commission, which considered weak the investigations conducted by the Military Police and by the Civil Police. Both were late, with many flaws and negligence, resulting in the acquittal of the accused by the Military Penal Court.

 The Commission also concluded, in its final report of March 2004[6], that the Brazilian State was responsible for the violation of rights concerning personal liberty, personal integrity, childhood protection, judicial protection and judicial warrants established by the American Convention. It was also affirmed that the State failed in its obligation to legally adopt the dispositions of the Convention’s Article 2, and violated Article 1, which determines respect and warrant of the rights established in the document.

 In the same report, the ICHR ratified previous recommendations regarding racism, and recommended to the Brazilian State the adoption of “measures for the education of Justice and Police employees to avoid actions that imply racial discrimination in the legal investigation, process or condemnation.”

Urso Branco Case – first provisional measures against the Brazilian State

 The case portrays the situation of the Brazilian prison system. It initially regarded the brutal murders of 37 inmates, between January and June of 2002 by fellow inmates, and the threats to prisoners by prisoners, which continue to this day.

 In June 2002, the ICHR submitted a request for provisional measures against the Brazilian State in favor of a group of inmates of the Urso Branco Penitentiary, in the State of Rondônia. The request was accepted by the Inter-American Court, which ordered the adoption of provisional measures, determining that the Brazilian State guarantees due protection to the life of inmates at the Urso Branco Penitentiary.

 New information about the case was presented by the petitioners, indicating that such measures were not adopted, as new murders are still committed, some of them publicly, including in some cases the dismemberment of corpses.

 New complaints found by the Commission demonstrate the seriousness of the case, the urgency of a solution and the vulnerability of the life and the integrity of inmates, visitors, and security agents. The Court ordered new provisional measures in April 22, 2004, but these were not adopted either.

 The ICHR itself had expressed through a press release on April 21, 2004, its own “profound preoccupation with the situation at the Urso Branco Penitentiary”, and urged Brazil to “duly execute the provisional measures dictated by the Inter-American Court, and adopt all the necessary measures to adequately solve the current situation at the Urso Branco Penitentiary and to avoid repetition of conflict, violence and death in the future.”[7]

 Once more, in July 2004, the Court determined new provisional measures, always taking into account the observations of the Commission and the petitioners, which were presented in a public hearing on June 28, 2004. The new orders require the Brazilian State to immediately adopt necessary measures to efficiently protect the life of inmates and all that enter the penitentiary; to adapt the penitentiary conditions to international norms of human rights protection; to send information on the situation of inmates; and other initiatives. The Court also reiterates the importance of a cooperative work, mainly concerning the supply of information between Court, Commission, and petitioners.

III – HEARINGS ABOUT BRAZIL AT THE ICHR

 During the 119^th ordinary period of sessions of the ICHR, on March 1-5, 2004, the Commission received information related to the project for national reporters of DESC. It also received information on the advancements and plans of the Brazilian government regarding human rights. These were presented by the Human Rights Minister, Dr. Nilmário Miranda, who participated in the hearing on the situation of human rights in Brazil. The Brazilian government had requested the hearing.

 It was also presented the report Tortura no Brasil: Implementação das Recomendações do Relator da ONU (“Torture in Brazil: Implementation of the UN Special Rapporteur Recommendations”), produced by a consortium of ten NGOs with the goal of evaluating the level of implementation of the recommendations made by the UN Special Rapporteur after his visit to Brazil in 2000.

 At that time, he visited cells in police stations, pre-hearing detention centers, detention centers for juveniles and penitentiaries. He interviewed potential witnesses of the treatment accorded to inmates, representatives of NGOs that are recognized for their efforts to eradicate torture in the country, and government authorities. Afterwards he declared that the practice of torture in the country is generalized and systematic. He recommended the adoption of a number of measures to eradicate the problem.

 The report realizes that in spite of some initiatives adopted by the Brazilian government against torture and abuse, the implementation of the UN recommendations are still short of what was expected. The abuse committed by police is still constant. Investigation of crimes committed by policemen is still done by partial and inefficient courts. The Brazilian prison system is in a precarious overcrowded state, with detention times being violated and absence of information to the inmates’ families.

IV – 34^th PERIOD OF SESSIONS OF THE GENERAL ASSEMBLY OF THE OAS

 This chapter will comment on the most important resolutions approved by the 34^th Period of Sessions of the General Assembly of the OAS, which took place in the city of Quito, Ecuador. It will also point out the influence of these resolutions on the Inter-American System of Human Rights Protection and on Brazil.

 The new Secretary General of the OAS, Miguel Angel Rodriguez, was elected in June. In a meeting with CEJIL and other organizations, the Secretary General committed himself to promote and strengthen the dialogue with human rights organizations in the Americas.

 On the other hand, there was a 10% reduction in the ICHR budget, which represents a step backwards in the commitment of the member-States to the protection of human rights. The ICHR president expressed his worries about that when he presented his report, pointing out that the reduction “will profoundly affect the execution of new human rights mandates as ordered by the OAS countries to the ICHR.”

 In search of a reduction of the losses caused by the General Assembly decision, CEJIL formally requested the OAS to reconsider the approved budget. CEJIL also asked for the promotion of a fund for assistance to victims in the Inter-American System, and for transparent mechanisms of proposal and selection of competent, morally respected judges and commissioners, who must be committed to the defense of human rights.

         The Inter-American Court also presented its annual report, highlighting the increased work resulting from the alterations on the regulations of the Inter-American System.

         Other human rights resolutions were approved, including: indigenous peoples protection (ongoing workgroup to write the American Declaration on the Rights of Indigenous Peoples); the strengthening of the Inter-American System (OAS States instructed the Permanent Council to initiate a ample process of reflection on the Inter-American System for promotion and protection of human rights, through the cooperation between specialized agencies, NGOs, experts, academic institutions, and the States themselves); the recognition and support of human rights defenders (recommendation to countries to adopt National Plans of protection of their work, which could be done with the assistance of the ICHR); and the preparation of the Social Chart of the Americas (should include an action plan with principles of social development and the establishment of specific goals and objectives to strengthen OAS’s tools for democracy, integral development and fighting poverty[8]).

         Besides these decisions, there were also debates related to the establishment of democracy in Haiti and the peace process in Colombia.