Jailton Neri da Fonseca v. Brazil, Case 11.634, Report No. 35/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 173 (2000).
JAILTON NERI DA FONSECA
February 20, 2001
On December 7, 1995, during its visit to Brazil, the Inter-American
Commission on Human Rights (hereinafter the Commission or IACHR)
received a petition that the Centro de Defesa Dom Luciano Mendes of
the Associação Beneficiente São Martinho [São Martinho Charitable
Association] (hereinafter the petitioner) filed against the
Federative Republic of Brazil (hereinafter called the State
or the Brazilian State or Brazil) for the alleged
extrajudicial execution of the minor Jailton Neri da Fonseca (hereinafter
the victim) by Rio de Janeiro State military police during a
police operation in the Ramos favela.
If proven true, the facts alleged in the petition could constitute
violations of Article 4 (right to life), Article 8 (the right to a fair
trial), Article 19 (the rights of the child), and Article 25 (the right
to judicial protection) of the American Convention on Human Rights (hereinafter
the American Convention or the Convention).
Brazil reported on the internal measures in progress, including the
investigations and the ruling handed down by the Military Tribunal of the
State of Rio de Janeiro.
After examining the parties allegations, the Commission decided
to declare this case admissible.
PROCESSING WITH THE COMMISSION
In accordance with Article 33 of the Commissions Regulations,
in March 1996 the Commission asked the petitioner to complete the petition
by supplying additional information.
The petitioner supplied the requested information on April 19, 1996,
including a copy of the ruling handed down by the Military Tribunal on March
12, 1996. On June 14, 1996,
the Commission requested information from the State.
The latter twice requested that the deadline for supplying that information
be extended: the first time on September 18, and the second time on November
26, 1996. With no information
from the State forthcoming, on July 7, 1998 the Commission again asked the
Brazilian State to supply the previously requested information and advised
it of the possible application of Article 42 of the Commissions Regulations.
The State sent information on August 17, 1998, a copy of which was
forwarded to the petitioner on September 25, 1998.
The petitioner did not present final comments.
POSITION OF THE PARTIES
Position of the petitioner
The petitioner alleges that the minor Jailton Neri da Fonseca, age
thirteen, was killed by military police during a police raid in the Ramos
favela in the city of Rio de Janeiro on December 22, 1992.
The petitioner also alleges that the minor Jailton had been detained
some days before being killed by police officers in charge of patrolling
the Ramos favela. To secure Jailtons release, police had demanded that
Jailtons mother pay a sum that was, at the time of the crime, Cr$1,500,000
(one and a half million cruzeiros), which was extortion.
The petitioner reports that police inquiry Nº 601 was instituted
on December 23, 1992. In it, the Office of the States Attorney indicted
four police officers in case 96/30/95.
The petitioner adds that on March 12, 1996, the Permanent Military
Tribunal handed down a verdict acquitting the accused police officers, based
on the maxim of the law in dubio pro reo. Its
reasoning was that there were doubts as to the authorship of the crime and
that any new evidence in the case was impossible.
The petitioner did not make clear whether an appeal was filed to
challenge the acquittal, but it does report that the remedies under domestic
law were exhausted when the verdict became final, at which point no appeal
could be filed.
The petitioner adds that it is routine military police practice to
intimidate witnesses in order to keep them from testifying against the police,
thus ensuring that violations will go unpunished.
Position of the State
10. The State answered the petitioners allegations, reporting that:
According to information received
from the Office of the States Attorney of Rio de Janeiro, Jailton
Neri da Fonseca, then a teenager, was killed at the time of an operation
conducted by the Rio de Janeiro military police to stop illegal drug trafficking
and to apprehend those drug traffickers who hide out in Ramos Favela. The State went on to say that:
Obviously the vast majority
of those who live in the favelas are not criminals and are not involved
in drug trafficking. But the
truth is that the majority of the people used in illegal drug trafficking
in Rio de Janeiro are from those favelas.
Many are minors, preferably teenagers, particularly inasmuch as they
are not subject to criminal indictment.
The State reported that criminal case Nº 9630/95 was instituted with
the judge advocates office because the military courts have jurisdiction
in homicide cases involving military police.
It also reported that the probable-cause proceedings are adversarial
proceedings, where the accused have full guarantees of self-defense.
The State added that on March 12, 1996, the Military Tribunal unanimously
decided to acquit the military police accused of the murder of Jailton Neri
da Fonseca and of the crime of extortion they were alleged to have committed
against the victims mother.
The State points out that the verdict became final, and thus no longer
subject to any type of legal challenge.
Lastly, the State reports that in the matter of damages for unlawful
acts committed by police officers, under the Brazilian legal system the
State does not have the authority to take the initiative in this regard,
and that some judicial or legislative measure directly related to the victims
or their next of kin was needed. In
the instant case, where the offenses were criminal in nature, the accused
would have to be convicted. It added that in this specific case, the suit
seeking damages on behalf of the victim and his next of kin was brought
in the civil courts of the state of Rio de Janeiro, and that damages were
contingent upon the outcome of the case brought in the states criminal
IV. ANALYSIS OF ADMISSIBILITY
materiae, personae, temporis and loci
The Commission has competence ratione
personae to examine the complaint because the petition names as the
alleged victim a person whose Convention-recognized rights the Brazilian
State undertook to respect and guarantee. The facts alleged involve actions
of agents of the state of Rio de Janeiro.
Under Article 28 of the Convention, where a State Party is constituted
as a federal state, as in Brazils case, the federal government will
be answerable at the international level for acts committed by agents of
the federations units.
The Commission has competence ratione
materiae because the case involves
allegations that, if proved true, would constitute violations of rights
recognized in the Convention, namely: the right to life (Article 4), the
right to a fair trial (Article 8), the rights of the child (Article 19),
and the right to judicial protection (Article 25).
The Commission has competence ratione
temporis given that the facts alleged date back to December 22, 1992,
when the obligation to respect and guarantee the rights recognized in the
Convention was already binding upon the Brazilian State, which ratified
the Convention on September 25, 1992.
The Commission has competence ratione
loci because the facts alleged occurred in the city of Rio de Janeiro,
within the territory of the Federative Republic of Brazil, a State that
ratified the American Convention.
Requirements for the petitions admissibility
Under Article 46 of the American Convention, admission by the Commission
of a petition or communication will be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law;
b) that the petition or communication is lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment;
c) that the subject of the petition or communication is not pending in
another international proceeding for settlement.
The Commission will now examine each of the requirements listed above.
Exhaustion of remedies under domestic law
In the instant case, based on the information supplied by the parties,
the only inquiry was the one conducted by the military justice system.
The Commission has repeatedly held that prosecution of human rights
violations by military courts was not an effective recourse.
Hence, the petitioner is not required to exhaust it.
Also, the Commission considers that the remedies under domestic law
were exhausted once the Military Tribunals March 12, 1996 verdict
Deadline for filing the petition
While the exception to the rule requiring exhaustion of domestic
remedies applies, so does the rule stipulated in Article 46(1)(b) of the
Convention, which requires that the petition be submitted within six months
of notification of the final judgment.
The Commission considers that the petition was submitted within a
reasonable period of time, that it was basically complete when submitted
and fully complete with the additional information requested by the Commission
and supplied by the petitioner on time, that is to say, just one month after
notification of the March 12, 1996 verdict.
Duplication of proceedings or res
The Commission has no information to indicate that the subject of
the petition is pending in another international proceeding for settlement
or that it is substantially the same as one previously studied by the Commission
or by another international organization.
Hence, the Commission finds that the requirements stipulated in Articles
46(1)(c) and 47(d) are met.
Characterization of the facts
If the facts alleged by the petitioner are proved true, they could
constitute violations of rights protected by the American Convention.
The Commission concludes that it is competent to consider the present
case and that the petition satisfies the admissibility requirements set
forth in articles 46 and 47 of the American Convention.
Based on the foregoing arguments of fact and of law, and without
prejudging the merits of the case,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
To declare the case admissible with regard to the facts alleged which,
if proven true, would constitute violations of Articles 4, 8, 19 and 25
of the American Convention.
To notify the Brazilian State and the petitioners of this decision.
To proceed with its analysis of the merits of the case.
To publish this decision and include it in the Commissions
Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the twentieth day of February, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Commissioners: Robert K. Goldman, Julio Prado Vallejo and Peter Laurie.
Pursuant to Article 19(2)(a) of the Commissions Regulations Commission
member Hélio Bicudo, a Brazilian national, did not participate in the
discussion of this case or in the adoption of this decision.
IACHR, Report on the situation of human rights in Brazil, 1997, Chapter
III, paragraphs 77 to 79; IACHR, Annual Report 1999; Report Nº 34/00,
Case 11.291- Carandirú (Brazil), par. 80. See also:
IACHR, Annual Report 1999, Report 7/00, case 10.337 (Colombia);
paragraphs 53 to 58; IACHR, Third report on the situation of human rights
in Colombia (1999), p. 175.