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.
AND THE INTER-AMERICAN SYSTEM FOR HUMAN RIGHTS PROTECTION
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.
– THE INTER-AMERICAN SYSTEM FOR HUMAN RIGHTS PROTECTION
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,
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.
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
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.
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),
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
– DECISIONS ON BRAZILIAN CASES IN THE IHRC AND IN THE COURT IN
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
Pereira Case – first Brazilian case of friendly solution
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.
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.
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
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
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
The agreement between the parts
was sanctioned by the ICHR on October 24th, 2003.
The Commission currently overviews items of the agreement still to
Case – merit analysis
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
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.
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.
March 2004, the final report on the case was published.
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.
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.
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.
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.
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.
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.
Commission also concluded, in its final report of March 2004,
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.
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.”
Branco Case – first provisional measures against the Brazilian
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
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.”
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.
– HEARINGS ABOUT BRAZIL AT THE ICHR
During the 119th 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.
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.
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.
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.
– 34th PERIOD OF SESSIONS OF THE GENERAL ASSEMBLY OF
chapter will comment on the most important resolutions approved by
the 34th 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.
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.”
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
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
Besides these decisions, there
were also debates related to the establishment of democracy in Haiti
and the peace process in Colombia.
Director of the Center for Justice and Internacional Law/Brasil
Law student, intern at CEJIL/Brasil.
From now on, San José Agreement or American Convention.
ICHR, Annual Report 2003.
Available at http://www.ICHR.org/annualrep/2003port/index.htm.
At the time this report was published – September 2004 – the organs
of the SIA still had not published their annual reports
corresponding to the current year.
ICHR, Relatório N.º 95/03. Disponível em:. http://www.ICHR.org/annualrep/2003port/Brasil.11289.htm.