Marcos Aurelio de Oliveira v. Brasil, Case 11.599, Report Nº 10/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 413 (1999).
MARCOS AURELIO DE OLIVEIRA
February 24, 2000
December 7, 1995, the Inter-American Commission on Human Rights (hereinafter
“the Commission”) received a petition from Centro
de Defensa y Garantía de the Derechos Humanos/Proyecto Legal del Instituto
Brasileño de Innovaciones en Salud Social (I.B.I.S.S.)
against the Federative Republic of Brazil (hereinafter
“Brazil” or the “Brazilian State”), denouncing the alleged homicide of
Marcos Aurelio de Oliveira, a minor, in Rio de Janeiro on September 25, 1993,
by a civil policeman of the State of Rio de Janeiro and known extortionist
of homeless minors. The victim
was allegedly attempting to rob the driver of a car when the attack occurred;
another boy who was an eyewitness and testified to the responsibility of the
policemen, was later intimidated and changed his testimony.
Four months later, the accused policeman discovered this witness and
attempted to kill him.
At the time of lodging the petition more than two years later in December
1995 the police investigation had still not concluded.
According to the petition, the events constitute grave violations on
the part of Brazil of the rights guaranteed in the American
Convention on Human Rights (hereinafter “the Convention”) in Articles 4 (right
to life), 8 (right to a fair trial), 19 (rights of the child), 22 (rights
to freedom of movement and residence), and 25 (right to judicial protection).
The Commission concludes this case is admissible, that the boy Marcos
Aurelio de Oliveira was unlawfully executed by the policeman and that the
investigation was not carried out in compliance with the duties of the State
and pursuant to the judicial guarantees that same is required to provide.
The Commission recommends that the persons
responsible for the various different violations be processed and punished
and that the relatives of the victim be compensated.
BY THE COMMISSION
The Commission received the petition on December 7, 1995, in the course
of a visit to Brazil. The petition
was forwarded to the Brazilian State on March 22, 1996, in order that it present
its comments within a period of 90 days.
Five months later, on August 28, 1996, the State requested an extension,
given the complexity and scope of the inquiries underway; the Commission granted
an extension of 15 days.
On October 28, 1996, the Commission repeated its request to the State,
mentioning the possibility of applying Article 42 of the Commission’s Regulations,
pursuant to which the facts reported in the petition are presumed
to be true if, during the maximum period provided for under the Commission’s
regulations the government has not provided the pertinent information, as
long as other evidence does not lead to a different conclusion.
On August 5, 1997, the petitioners informed the Commission that as
yet they had received no news about the progress of the police investigation
from the Brazilian authorities responsible, and requested that the respective
report be prepared. The Commission repeated its request for information to
the Government on September 10, 1998, without receiving a reply.
Processing of friendly settlement
On October 13, 1998 the Commission placed itself at the disposal of
the parties for 60 days in order to initiate a friendly settlement proceeding,
but did not receive a positive response to that offer.
POSITIONS OF THE PARTIES
Position of the petitioners
The petitioners present the case of the homicide of Marcos Aurelio
de Oliveira Santana, aged 17. The
homicide occurred on September 24, 1993, at approximately 18:00 hours, on
the corner of two main avenues in the neighborhood of Castelo, Rio de Janeiro,
and was caused by shots from a firearm (Death Certificate 56, Ministry of
Health, Forensic Medicine Institute, hereinafter Annex 4) which, according
to several testimonies, were fired by a short, dark-skinned man, aged between
25 and 30, allegedly the civil policeman known as “Robocop”.
8. A key witness
in the case, an adolescent called Mario de Souza Goudinho, aged 17, recounted
that shortly prior to the homicide, the victim, Marcos, threatened a woman
in a beige-colored Escort with piece of glass, probably with the intention
of robbery. This witness maintained that, beforehand, a man with the same
features as the man who later shot Marcos, passed by him and stared at him
intently. When this witness had
reached the other side of the street another witness known as “Fufu” gave
a warning shout to Marcos. On
looking behind him, without having time to flee, Marco was struck by shots
from the firearm (News article in “Jornal
do Brasil” 26/9/93, hereinafter Annex 5).
9. This newspaper
account (Annex 5) states that Marcos was a member of a group of 50 minors
who reside and spend the night in the Cinelandia area. However, Marcos was
receiving training from the I.B.I.S.S., with a view to enlisting in the Army.
The news article mentions that according to the testimonies of the
minors, the man who shot Marcos had been following them from the Museum of
Modern Art, where they had gone to look for blankets with which to keep themselves
warm while sleeping rough; they would hide these blankets in a hole in a building
known as their “wardrobe”.
10. The newspaper
account alleges that several witnesses saw the attack on Marcos Aurelio de
Olivera. A female bus passenger
testified confidentially that the man who fired seemed “a person accustomed
to killing”. She said that after
shooting, he walked unhurriedly away toward a white car waiting with another
man at the wheel.
11. On September
28, 1993, a police investigation was opened by the Third Precinct of the Rio
de Janeiro Police. The investigation records contain the declaration of another
boy called Alexandre de Oliveira da Silva, who claimed to have seen a man
of short stature wearing a black suit--however, he was unable to see the color
of his skin--loitering in the area moments before the crime. He affirmed, moreover, that although he had not seen if the
man was holding a revolver in his hand, he remembered hearing the sound of
a gunshot, which struck Marcos Aurelio.
In the opinion of Alexandre and other of his fellow minors, from the
circumstances of the crime, the murderer arrived at the scene with the purpose
of killing Marcos Aurelio (Testimony to the Police of Alexandre de Oliveira
da Silva, aged 15, attached as Annex 6).
12. On the scene
of the crime shortly after it occurred, the key witness Mario de Souza Goudinho
had said to members of IBIS and to journalists that the killer was a civil
policeman called “Robocop”, who was known for his practice of extorting minors.
He also identified features of the killer that coincided with the description
given by the other witness, and confirmed that after killing [Marco Aurelio]
the assailant left the scene and went to a nearby parking lot where a waiting
accomplice was leaning against a white car (Petition and news article in “Jornal
do Brasil”, 26/9/93, Annex 5).
13. The petitioner
claims that a “street educator” stated that the witness Mario had later been
pressured by his group of friends into changing his account of the killing.
The aforesaid educator thinks that the friends had been intimidated and were
afraid of reprisal, and that Mario changed his testimony at the Police Precinct
out of fear. The petition does
not include a copy of the declaration that Mario gave at the Police Precinct.
14. The original
account of the witness Mario was lent weight, according to the petitioners,
as a result of an attack on him a few months later.
According to another newspaper article (Article in “O
Día” of February 9, 1994, Annex 7) the aforesaid witness, Mario de Souza
Goudinho, was the target of an attack on a street in Cinelandia in the early
hours of February 9, 1994, and that he recognized the man who tried to kill
him as the same person who killed Marcos.
The witness says that the man in question, Robocop, lifted the blanket
away from his face as he was sleeping on the street opposite “Bob’s” restaurant
at three in the morning. Upon
realizing that the man was Marcos’ murderer, Mario ran toward the Cinelandia
Military Police Post pursued by the man, who shot twice at him.
Another man, whom Mario recognized as Robocop’s accomplice, came out
of a hotel, tried to stop him, and fired another shot at him without hitting
him. On reaching the Military
Police Post, Mario took refuge inside.
He saw the man who had tried to kill him and tried to hide inside the
post. After a time the policemen
made him leave the Post but as a precaution Mario remained nearby for the
rest of the night.
15. The petitioners
mention that the day after the murder in September 1993, they requested protection
for the witness Mario before the Office for Children and Adolescents Rio de
Janeiro. Protection was granted but, despite the urgency, not put into
effect (Annexes 8 and 9). Following
the attack, on February 8, 1994, the lawyers for the I.B.I.S. again applied
for protective measures and for the witness to be deposed, as well as requesting
an expert opinion of the attack. Only
then, on February 9, were protective measures put into effect and the witness
taken into the Shelter for witnesses.
16. The petitioners
allege omission on two counts by the Brazilian authorities in the police investigation
proceedings. The first omission
refers to the halting of the investigations conducted by the police, which,
despite having a period of 30 days in which to conclude, pursuant to the provisions
the Criminal Code, had continued for two years without completion as of the
date of the petition. The petitioners
allege that the foregoing justifies acceptance of the exception to the requirement
to exhaust domestic remedies provided for in Article 46(2)(c) of the Convention.
The second omission refers to the Office of the Attorney General, which
ought to as prosecuting attorney demand compliance with deadlines prescribed
by the law, but which offered no opinion in this case.
17. The petitioners
request that the Brazilian State be declared in violation both for the death
and for the failure to afford due process of law and judicial guarantees;
that the Commission recommend to the Brazilian State that it complete the
investigation and processing of the persons responsible for violating the
rights of Marcos Aurelio de Oliveira Santana; and that compensation be awarded
to his family.
Position of the State
18. The Brazilian
State did not reply to the repeated requests from the Commission for comments
on the admissibility and merits of the petition.
The Commission also finds that the Brazilian State has failed to date
to reply to the facts set out in the petition, in spite of the different notes
from the Commission requesting that it do so, and that the periods established
in the Convention and in the Commission’s Regulations for said reply have
Competence ratione materiae,
personae, et temporis
19. The Commission
is competent to take up this case as it deals with allegations regarding violation
of human rights recognized in Convention, to wit: (right to life) Article
4, (right to a fair trial) Article 8, (rights
of the child) Article 19, (rights to freedom of
movement and residence) Article 22 and (right to judicial protection)
Article 25, pursuant to Article 44 of the aforesaid Convention, to which Brazil
has been party since September 25, 1992.
The events occurred while the Convention was in force insofar as the
State is concerned, and it is alleged that the persons responsible are agents
of that State in the employ of the police and of the Office of the Attorney
Responsibility of the State as regards acts or omissions of its organs
and agents, as well as those of its Federal States
Article 1(1) of the Convention
clearly establishes the obligation of the State to respect the rights
and freedoms recognized therein and to ensure free and full exercise of those
rights and freedoms. Accordingly, any impairment of the rights recognized in the
Convention which can be attributed under the rules of international law to
an action or omission of any public authority constitutes an act imputable
to the State.
In accordance with Article 28 of the Convention, in the case of a federal
state like Brazil, the national government responds internationally for acts
carried out by the constituent entities of the federation.
The instant case deals with allegations of human rights violations
committed by an officer of the civil police of the State of Rio de Janeiro.
Exhaustion of domestic remedies
22. Pursuant to Article
46(1)(a) of the Convention, for a petition to be admitted by the Commission
it is necessary that the remedies under
domestic law shall have been exhausted in accordance with generally recognized
principles of international law.
However, the aforementioned article establishes that those provisions
do not apply when:
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly
the party alleging violation of his rights has been denied access to
the remedies under domestic law or has been prevented from exhausting them;
c. there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
23. The petitioners
reported that, despite the police investigation having been opened on September
28, 1993, and more than two years having elapsed since the date the petition
was filed, the investigation remains open and unconcluded.
Brazilian criminal law provides for a deadline of 30 days for the conclusion
of police investigations. This
deadline is extendable by court order, which did not happen in the instant
case. By the same token, nor
did the Office of the Attorney General, which is in charge of monitoring compliance
with deadlines, intervene to ensure their effect.
24. The interval
of two years between the occurrence of the events and the filing of the petition
without police investigation having been completed, constitutes unwarranted
delay in accordance with Article 46(2) on the question of exhaustion of domestic
remedies. That delay impeded due process of those responsible and denied
the victim’s relatives the possibility of judicial proceedings for seeking
compensation. In accordance with Article 46(2)(b), the foregoing, in denying
the alleged injured parties access to the remedies under domestic law, constitutes
another of the exceptions provided to the requirement to exhaust domestic
25. To date, the
Brazilian State has not submitted a reply to the petition, even though the
Commission has repeated its requests and the conventional time limits stipulated
in the Commission’s Regulations have expired.
The Commission understands that such silence implies a tacit waiver
of the right to allege lack of prior exhaustion of domestic remedies established
in Article 46 of the Convention.
Timeliness of the petition
26. There being an
unwarranted delay in the administration of justice, the exception established
in Article 46(2)(c) of the Convention and in Article 37(2)(c) of the Commission’s
Regulations applies to the requirement regarding the six-month deadline for
lodging petitions with the Commission following
the date on which the party whose rights have been violated has been notified
of the final ruling. Since
the complaint was filed two years after the alleged violation of rights, the
Commission considers that the petition was lodged within a reasonable period
of time in accordance with Article 38(2) of its Regulations.
Internationalitis litispendeus or res
27. To the Commission’s
knowledge the subject of the petition is not pending in another international proceeding
ANALYSIS OF THE MERITS OF THE CASE
The silence on the part of the State concerning this petition contradicts
its obligation as a State Party to the American Convention with regard to
the functions of the Commission to “take action on petitions and other communications
pursuant to its authority under the provisions of Articles 44 through 51 of
this Convention”. The analysis
that follows is done based on the elements in the record before the Commission.
Taking into consideration Article 42 of the Commission’s Regulations,
noting that during the maximum time period set in accordance with Article
34(5) of the Regulations, the State has not provided the information requested.
The Commission has analyzed the available evidence presented by the
Petitioners, which was not contradicted by the State, and makes the following
Right to life (Article 4)
Article 4 of the Convention provides that no one
shall be arbitrarily deprived of his life.
The victim, Marcos Aurelio de Oliveira Santana, aged 17, was a “homeless
boy”, the member of a group of young people who resided in the vicinity of
Cinelandia, and was in contact with I.B.I.S, an organization that provides
protection and defense for minors and petitioners in the case.
Marcos was receiving training from the petitioning entity I.B.I.S.S.
with a view to enlisting in the Army (Petition and Annex 4).
According to several minors who gave statements to the press and members
of IBISS, in particular the eyewitness Mario de Souza Goudinho, the victim,
Marcos Aurelio de Oliveira Santana, was killed by a civil policeman of the
State de Rio de Janeiro, who is known as “Robocop” and accused of extorting
homeless young people.
30. Further testimonies
allege that the person who shot Marcos “seemed someone accustomed to killing,
and that he calmly left the scene and got into a car where another person
was waiting for him.” The same policeman was subsequently identified by the
witness, Mario, as the person who found him sleeping rough four months later
and who shot at him in an attempt to kill him.
Furthermore, when he managed to reach the nearby MP (Rio de Janeiro
Military Police) post, the same man was there conversing with the policemen.
This witness was then granted precautionary measures by a competent
judge in light of this attack, committed by the person whom the witness identified
as the same man who attacked the victim Marcos Aurelio, and who he maintained
is a policeman who extorts homeless minors.
During the police investigation phase a declaration was taken from
the minor Alexandre Oliveira da Silva, who affirms that he saw a man with
the same characteristics as that identified by Mario, hanging around the building
moments before the crime. Alexandre also declared that he believed that the murderer
acted in a premeditated manner and had the specific intention of killing the
minor Marcos Aurelio.
32. The Commission
has also seen that, at the time, persecution and extermination of homeless
children and young people was a method frequently used in Rio de Janeiro by
State or private security agents for personal reasons or as a means of alleged
“social cleansing.” The Commission
has ruled against this practice, which constitutes one of the most horrifying
systematic violations of the right to life and personal security, and implies
a breach by the State of its obligation to guarantee the rights of all persons,
particularly the rights of children and minors. In examining the case the Commission considers the testimonies
and evidence contained in the case records to be the central elements on which
to base its conclusions. However,
it considers that it should mention this general situation to make it clear
that this was not an isolated or anomalous incident, but an example of the
systematic attitude of some police officers at that time.
33. The Commission
must consider whether the shot fired by the security agent, which cost the
victim his life was the result of the need to prevent a greater crime, or
was legitimate self-defense on the part of the policeman.
The Commission takes in account the “Basic Principles on the use of
Force and Firearms by Law Enforcement Officers”, which clearly define the
Although the State has not pleaded this defense, the Commission considers
that it should address this point. There
is no evidence in the instant case that supports either of these scenarios,
or that the youth was armed or threatening to kill the policeman or any other
person. Taking the life of a
person who is allegedly committing a robbery in the street is not the legal
way to react for the security forces.
Moreover, there are testimonies stating that this policeman had previously
harassed these young people, and had followed them from the area around the
Museum of Modern Art. Equally,
after taking the victim’s life he left calmly with the aid of another individual,
who was waiting for him in a car. There
is no information that standard investigative tasks were performed as regards
gathering evidence and testimonies, which should be carried out immediately
after a homicide. In this particular
case other circumstances make this homicide even more illegally perverse as
there are clear signs of prior persecution and disdain for the rights of this
minor and his companions.
Based on the testimonies and evidence contained in the record and presented
here, the Commission considers that there is sufficient clear and forceful
evidence to lead it to the full conviction that agents of the Rio de Janeiro
Police violated the right to life of Marcos Aurelio de Oliveira Santana, on
September 25, 1993 in that city.
Rights of the Child (Article 19)
Article 19 of the Convention provides the following:
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.
36. Article 227 of
the Federal Constitution of Brazil of 1988 establishes that “it is the duty
of the family, of society, and of the State to give the utmost priority to
guaranteeing the right to life of the child and adolescent, as well as to
protect them from any form of negligence, discrimination, exploitation, violence,
cruelty, and oppression…”. The
Brazilian Statute on the Child and Adolescent reiterates the guarantees stipulated
in the Constitution. The foregoing
means that the legislation on the rights of minors in Brazil constitutes an
adequate legal framework for protecting the life of the child in light of
the obligations emanating from the Convention.
37. However, the
reality in Brazil at the time of the events denounced proved different.
In its report on the human rights situation in Brazil, the Commission
stated that “a significant percentage of homeless children live in crime and
have critical family backgrounds, subsisting on the proceeds of petty theft
or provision of services (including drug trafficking).
Their lives are generally short, very often dying as victims of extermination
squads formed by the police themselves, as well as of the violence in which
their situation envelopes them”
. The aforementioned report underscores
that, “The figures on police violence have declined notably since 1993 in
Sao Paolo and increased since May 1995 in Rio de Janeiro”. The situation of Marcos Aurelio fits perfectly into this context,
given that the minor lived on the streets of Rio de Janeiro, surviving on
petty robbery and ending as the victim of arbitrary police action.
the Commission finds that, while the domestic legislation and the Convention
ratified by Brazil recognize the primary obligation of the State to provide
the child special care and attention entitled by his or her vulnerable condition,
in the instant case the state institutions did not afford the basic conditions
for fulfilling their duty to protect the minor Marcos Aurelio from violence,
and were in breach of Article 19 of the Convention.
Rights to freedom of movement and residence (Article 22)
39. The petitioner
also alleges violation of the rights to freedom of movement and residence,
in regard of which Article 22 of the Convention provides:
Every person lawfully in the territory
of a State Party has the right to move about in it, and to reside in it subject
to the provisions of the law.
2. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others.
40. In considering
this point, the Commission finds that the apparent freedom of these children
and young people to move about, find means of survival, and sleep rough at
night is not freedom as such. Not
only the social circumstances of their families, but also the lack of adequate
State measures to provide them with a framework of education, health, a home,
and support, force them to be there.
Children and young people, like Marcos Aurelio live in the street in
spite of their wishes, owing to the lack of options and minimum safeguards
to provide them opportunities and direction to their lives with the minimum
standards that Brazil’s Constitution and international commitments guarantee
These guarantees, insofar as children and minors under the age of 18
are concerned, are broadened in the United Nations Standard Minimum Rules
for the Administration of Juvenile Justice ("The Beijing Rules"),
which provide for special guarantees in police and judicial treatment of alleged
infractions by minors. Point
5(1) of those rules state:
juvenile justice system shall emphasize the well-being of the juvenile and
shall ensure that any reaction to juvenile offenders shall always be in proportion
to the circumstances of both the offenders and the offence.
42. Moreover, the
State’s forsaking of its duties to provide protection and care in this case
are aggravated by the harassment and violence exercised by agents of the security
forces, and by the failure to respect either judicial guarantees or the principle
of presumed innocence. That vicious
circle of exclusion, lack of opportunities, persecution, and coexistence with
unlawfulness of minors like Marcos Aurelio, which is completed with the distrust
that it generates in sectors of society, encourages corruption of the security
forces in their treatment of them; this, in turn, generates more exclusion
and violence. The efforts of
institutions like the I.B.I.S.S., which try to offer an honorable way out
of that excluded existence, are frustrated.
Furthermore, each incident like the one which resulted in the events
denounced makes solving the problem more difficult and enhances the vicious
the rights of freedom of movement and residence of minors, particularly those
of the victim and the threatened eyewitness in this case, were violated by
the State through the harassment and attack on the part of an agent of the
police, as well as by the negligence of other agents in furnishing the necessary
conditions to give effect to their rights to freedom of movement and residence
in reasonable conditions of safety.
Judicial guarantees and judicial protection (Articles 8 and 25)
44. Articles 8 and
25 of the Convention grant every person the right to recourse to judicial
remedies when his rights have been violated, and to a hearing by a competent
authority or tribunal. Article 25 of the Convention provides:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
45. The Commission has stated
previously that when, as in the instant case, the victim is not in a position
to seek compensation before the courts, the right to recourse to this means
is necessarily transferred to the relatives of the victim.
The Commission has reached the conclusion that victims and/or their
relatives have the right to a judicial investigation by a criminal court intended
to establish and punish responsibility in cases of human rights violations. This conclusion emanates from the duty of the State "to
use the means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose
the appropriate punishment and to ensure the victim adequate compensation".
46. The Inter-American
Court of Human Rights has ruled on the obligation of the State to investigate
acts that violate human rights protected by the Convention:
duty to investigate, like the duty to prevent, is not breached merely because
the investigation does not produce a satisfactory result. Nevertheless, it
must be undertaken in a serious manner and not as a mere formality preordained
to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal duty,
not as a step taken by private interests that depends upon the initiative
of the victim or his family or upon their offer of proof, without an effective
search for the truth by the government.
47. The petitioners
informed the precinct in charge of the police inquiry that they possessed
information about another witness, who had information that would facilitate
their investigations. Out of
lack of diligence, the police authorities did not take steps to continue the
investigations intended to establish the identity of the perpetrator of the
crime, despite clear evidence contained in the declaration of the minor Alexandre,
the important information of another potential witness (the female bus passenger),
and the attempt on the life of the minor Mario, allegedly committed by the
same man who killed the minor Marco Aurelio.
En the instant case, the investigation did not include several essential
regulation procedures. Testimonies
were not taken from other witnesses who were present during the perpetrator’s
attack and escape; no investigation was made as to whether the victim was
armed or of the circumstance of his alleged unlawful conduct (attempted robbery,
according to the petitioner); and no investigation was made of the second
person who was waiting for the policeman in the white car and who allegedly
also appeared in a threatening manner following the attack on the witness
four months later. Furthermore, no investigation was made of the relationship
between the assailant and the policemen on duty at the Military Police post,
where the witness, Mario, saw them; nor was an investigation made as to why
those policemen refused to shelter Mario when he requested that they do so
since an attempt had been made on his life and he had been threatened.
Nor was an investigation conducted into the background of the policeman,
who was accused of harassing and extorting these minors.
The foregoing elements lead the Commission to conclude that the investigation
was not undertaken with the guarantees of seriousness required under Article
25 of the Convention.
Those judicial guarantees should also be analyzed in respect of the
alleged delay in investigating the events.
In order to determine reasonableness of time
in reference to Articles 8 and 25 of the Convention, the Commission must carry
out an overall analysis of the aforesaid police investigation.
50. Under the inter-American
system of protection of human rights there are provisions relating to the
question of reasonable time in which a case of human rights violation should
be solved. Indeed, the American
Convention stipulates a series of guarantees that must be present in every
judicial investigation process, in order for it to be substantiated within
a reasonable period of time. On
that score Article 8(1) states that:
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal.
the same token, Article 25 establishes that:
has the right to simple and prompt recourse (...) to a competent court or
tribunal for protection against acts that violate his fundamental rights
51. Both the European
Commission and Court of Human Rights, as well as the Inter-American Commission,
have established a set of criteria or considerations to take into account
in order to determine whether or not in a particular case there has been unwarranted
delay in administration of justice, "which does not prevent, were that
the case, any one of them from carrying decisive weight". The criteria established by jurisprudence for determining reasonable
time are as follows: (1) complexity
of the case; (2) conduct of the
plaintiff as regards his cooperation with the proceeding; (3) handling of
the instruction phase of the proceeding; and (4) conduct of the judicial authorities.
In order to carry out a proper analysis of the complexity of the case
it is necessary that we look at its background: the violation of the right
to life. In consequence, it is necessary to perform an objective appraisal
of the circumstances of the incident and of the personal conditions of the
alleged guilty parties. On the
face of it we have two alleged crimes: homicide and attempted homicide, both
in plain and straightforward circumstances. The above characteristics mean
that the instant case is not complex and easy to investigate. The jurisprudence adopted by the Inter-American Commission
on Human Rights in Case 10.037 (Firmenich) is illustrative, given that the
Commission declared the petition inadmissible because the characteristics
of the case itself and the complexity of the causes involved in the proceedings
therein did not constitute an unwarranted delay in administration of justice.
53. In another case
before the Commission a State alleged complexity of the litigation, and that
the reasons why the investigation had not been completed were due to the extremely
serious nature of the events denounced, to the complexity of the situation,
and to the seriousness with which the competent authorities had undertaken
to examine and clear up those charges. In that case, the Commission considered
that the fact that more than two years had elapsed since the events took place
and that as of the date of filing the petition there had been no exercise
of the pertinent penal action, nor any indication that this was in the offing
clearly showed that the investigations have not been conducted responsibly.
54. According to
information in the Commission’s possession, the police investigation began
on March 9, 1992 and remains open to date.
Six years have elapsed without the Commission having received information
indicating that the investigation has been completed, even though Brazilian
legislation provides 30 days for the conclusion of the aforementioned investigation.
55. In the instant
case it is up to the Office of the Attorney General, which has jurisdiction
over enforcement of the law insofar as judicial proceedings and deadlines
are concerned, to demand the inquiry be carried out by the police precinct
responsible. It emerges from
the record that more than five years have elapsed since the date of the events
and yet the inquiry has still not been brought to a conclusion and the pertinent
criminal proceedings proposed.
56. In light of all
of the foregoing, the Commission considers that the inefficiency, negligence,
or omission on the part of the authorities in the investigations, which culminated
in an unwarranted delay in concluding the police inquiry, not only released
the petitioners from the obligation to exhaust the remedies under the domestic
jurisdiction, as is already mentioned in the part relating to admissibility,
but also violates Articles 8 and 25 of the Convention, by denying the relatives
of the victim the right to seek justice within a reasonable time via a simple
and prompt recourse. Article 1(1) of the Convention provides that the
States Parties to the Convention undertake to respect the rights and freedoms
recognized therein and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms.
Proceedings subsequent to Report 23/99 (Article 50)
The Commission transmitted the previous report to the State on March
24, 1999, granting it a period of two months in which to comply with the recommendations
formulated. Furthermore, the Commission notified the petitioners of the approval
of a report under Article 50 of the Convention. The period granted elapsed
without the Commission receiving a response from the State in respect of the
The Commission reiterates its conclusion that it is competent to hear
this case and that the petition is admissible, pursuant to Articles 46 and
47 of the American Convention.
Based on the events and the analysis set out above, the Commission
reiterates its conclusion that the Federative Republic of Brazil is responsible
for violating the rights to life (Article 4), rights of the child (Article
19), rights to judicial guarantees and to judicial protection (Articles 8
and 25); for breaching the duty of the State to ensure and respect the rights
[Article 1(1)] enshrined in the American Convention on Human Rights in relation
to the homicide of Marcos Aurelio de Oliveira Lima by a civil policeman of
the State of Rio de Janeiro; and for failure to investigate and effectively
punish those responsible.
on the foregoing analysis and conclusions, the Inter-American Commission on
Human Rights reiterates the following recommendations to the State of Brazil:
To carry out a complete, impartial, and effective official investigation
to ascertain the circumstances of the death of the minor Marcos
Aurelio de Oliverio Santana and the attack on Mario de Souza Godinho, as well
as the unwarranted delay in the police investigation
of those events; and to punish those responsible in accordance with Brazilian
2. To adopt the
necessary measures for the relatives of the victim to receive adequate and
timely compensation for the violations established herein.
3. To adopt the
necessary measures to ensure compliance with the State’s undertakings in respect
of “homeless minors” in the city of Rio de Janeiro, pursuant to the stipulations
in its legislation, in the American Convention on Human Rights, in the United
Nations Convention on the Rights of the Child, and in related instruments
The Commission transmitted the report adopted pursuant to Article 51
of the American Convention to the State and to the petitioner on October 15,
1999, and gave the State one month to submit information on the measures adopted
to comply with the Commission’s recommendations.
The State failed to present a response within the time limit.
Pursuant to the foregoing considerations, and in conformity with Article
51(3) of the American Convention and Article 48 of its Regulations, the Commission
decides to reiterate the precedent conclusions and recommendations, to make
this Report public, and to include it in its Annual Report to the General
Assembly of the OAS. The Commission,
pursuant to its mandate, shall continue evaluating the measures taken by the
Brazilian State with respect to the recommendations at issue, until they have
been fully fulfilled.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., on the 24th day
of the month of February in the year 2000.
(Signed): Claudio Grossman,
First Vice-Chairman; Juan Méndez, Second Vice- Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado
Helio Bicudo, a Brazilian national, who is a member of the Commission
did not take part in the discussion or in the voting in this case in accordance
with Article 19(2)(a) of the Regulations of the Commission.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
of June 29, 1988, para. 164.
Court of Human Rights, Viviana Gallardo Case, September 13, 1981, para.
16; Velásquez Rodríguez para. 88; Caballero Delgado and Santana, Preliminary
Objections, Judgment of January 21, 1994, para. 66.
On the same matter, jurisprudence states: “It being a right that
can be waived, albeit tacitly, it must be presumed that there exists the
opportunity to exercise it, and that said opportunity only arises during
admissibility proceedings of the petition before the Commission.
Consequently, should the respondent State, through negligence,
carelessness, or ignorance on the part of its attorneys, not allege non-exhaustion
of domestic remedies during this stage of the proceeding, it would be
prevented subsequently from doing so before both the Commission and the
Court.” (Faúndez L. Hector, El
Sistema interamericano de protección de los derechos humanos, aspectos
institucionales y procesales, IIDH, San José 1998/ p. 198).
rights of minors and children”, in Report on the Human Rights Situation
in Brazil. IACHR, Washington D.C., September, 1997.
“Basic Principles…” adopted by the 8th
Congress on Crime Prevention and Treatment of Offenders. Havana,
Cuba, August 27th to September 7, 1990.
The following paragraphs apply in particular:
enforcement officers will not use firearms except in self defense or the
defense of others against imminent threat of death or serious injury;
to prevent the execution of a crime particularly grave involving serious
death threat; to arrest someone that presents such danger and resists
the authority, or to prevent his/her escape, and only when other meassures
less extremes are insufficient to achieve those goals.
In all cases, the intentional use of firearms can only be accomplished
when strictly inavoidable to protect human life.
In the cases indicated in Principle 9, law enforcement officers shall identify themselves as such and give clear notice of their intent to use firearms, with enough time for the notice to be received, except when to do so may unduly put in risk the law enforcement officer, or it could create a death risk or risk of serious injury to others, or it will be clearly inappropiate or not useful in the circumstances of the incident.
Report on the Human Rights Situation in Brazil, IACHR, OAS, Washington,
D.C., 1997, p. 80, para. 16.
Report on the Human Rights Situation in Brazil, IACHR, OAS, Washington,
D.C., 1997, p. 85, para. 31.
The Convention on the Rights of the Child, ratified by Brazil, says, inter
3. States Parties undertake
to ensure the child such protection and care as is necessary for his or
child temporarily or permanently deprived of his or her family environment,
... shall be entitled to special protection and assistance provided by
Adopted by General Assembly Resolution 40/33 of November 29, 1985.
Standard Minimum Rules for the Administration of Juvenile Justice (The
Beijing Rules) say that Member States shall endeavour to develop conditions
that will ensure for the juvenile a meaningful life in the community,
which, during that period in life when she or he is most susceptible to
deviant behaviour, will foster a process of personal development and education
that is as free from crime and delinquency as possible.
in general, Reports Nº 28/92 (Argentina) and Nº 29/92 (Uruguay) in IACHR
Annual Report 1992-93, OAS/Ser.L/V/II.83, doc. 14 corr. 1, March 12, 1993,
pp. 51-53, 169-74.
Rodríguez Case, supra, paragraph 174.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgement
of July 29, 1988, paragraph 177, pp. 74-75.
“The right to a trial within a reasonable time provided for in the American
Convention is based, among other things, on the need to avoid undue delays
that translate into a deprivation and denial of justice to the detriment
of persons who argue that their rights protected in the American Convention
have been violated” (Report
43/96, case 11.411, Mexico, p. 483, para. 53, 1996 IACHR Annual Report).
for example: IACHR Resolution Nº 17/89, Case Report 10.037 (Mario Eduardo
Firmenich) in the 1988-1989 Annual Report of the Inter-American Commission
on Human Rights, page 38; the European Court of Human Rights: "Konig"
Case, Judgment of June 28, 1978, Series A No. 27, pages 34 to 40, paragraphs
99, 102-105 and 107-111; the Guincho Case, Judgment of July 10, 1984,
Series A, No. 81, page 16, paragraph 38; Union Alimentaria Sanders S.A., Judgment of July 7, 1989, Series A,
No. 157, page 15, paragraph 40; Buchholz Case, Judgment of May 6, 1981,
Series A No. 42, page 16, paragraph 51, pages 20-22, paragraphs 61 and
63; and the Kemmache Case, Judgment of November 27, 1991, Series A no.
218, page 27, paragraph 60.
IACHR 1997 Annual Report, p. 655 et seq.
(Report 48/97 Case 11.411 “Ejido Morelia”, Paragraphs 46 to 48).
 As the Inter-American Court of Human Rights notes, such an obligation implies “...the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention.”