Simone André Diniz v. Brazil, Case 12.001, Report No. 37/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 167 (2002).
SIMONE ANDRÉ DINIZ
October 9, 2002
1. On October 7
and 10, 1997, the Center for Justice and International Law (CEJIL) and
the Subcommittee on Blacks of the Human Rights Commission of the Ordem
dos Advogados do Brasil (OAB/SP) filed a petition against the Federative
Republic of Brazil (hereinafter “Brazil” or “the State” or “the Brazilian
State”) before the Inter-American Commission on Human Rights (hereinafter
“the Commission” or “the IACHR”).
The petition alleged violations of Articles 1, 8, 24, and 25
of the American Convention on Human Rights (hereinafter “the Convention”
or “the American Convention”), and, in light of Article 29 of the Convention,
Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on
the Elimination of All Forms of Racial Discrimination (hereinafter “the
Convention on Racial Discrimination”), to the detriment of Mrs. Simone
2. The petitioners
allege that the State did not guarantee the full exercise of the right
to justice and due process of law, erred in respect of the domestic
remedies to investigate the racial discrimination suffered by Mrs. Simone
André Diniz, and accordingly breached the obligation to ensure the exercise
of the rights provided for in the American Convention.
3. The State provided
information alleging that the Judiciary had already handed down a judgment
on the matter that is the subject of the present complaint, and that,
according to the Government, the case submitted did not involve any
human rights violation.
4. After analyzing
the petition, and in keeping with Articles 46 and 47 of the American
Convention, the Commission decided to declare the admissibility of the
petition, with respect to possible violations of Articles 1, 8, 24,
and 25 of the American Convention.
PROCESSING BEFORE THE COMMISSION
5. On October 7
and 10, 1997, the IACHR received a complaint against the Brazilian State.
On April 10, 1998, the IACHR notified the State and gave it 90 days
to respond. On May 12, 1998, the State sent a note setting forth considerations
on the case, and committing itself to sending information pertinent
to the case in timely fashion.
On October 2, 1998, the petitioners sent a fax requesting that
the Instituto do Negro Padre Batista be included as a co-petitioner
in the complaint analyzed herein.
On November 3, 1998, the IACHR sent the Government a note in
which it reiterated the request for information made on April 10, 1998,
and gave the State 30 days to respond. On December 9, 1998, the Brazilian
Government presented its observations on the complaint.
THE PARTIES’ POSITIONS
Position of the petitioners
6. In their complaint
brief the petitioners alleged that the Brazilian State violated the
rights of Mrs. Simone André Diniz set forth at Articles 1(1), 8, 24,
and 25 of the American Convention, and, in light of Article 29 of the
Convention, Articles 1, 2(a), 5(a)(I), and 6 of the International Convention
on the Elimination of All Forms of Racial Discrimination. Accordingly,
the petitioners requested that Brazil be found responsible for violating
the above-noted rights, that a recommendation be made to the State to
proceed to investigate the facts, to make compensation to the victim,
and to give publicity to the resolution in this case in order to prevent
future incidents of discrimination based on color or race.
7. According to
the petitioners, on March 2, 1997, Mrs. Aparecida Gisele Mota da Silva
took out a classified ad in A Folha de São Paulo, a large-circulation
newspaper in the state of São Paulo, in which she communicated her interest
in hiring a domestic employee in which noted, among other things, her
preference for a white person. Student
and domestic employee Simone André Diniz, upon seeing the ad, called
the phone number indicated, and introduced herself as a candidate for
the job. Received by Mrs.
Maria Tereza, the person entrusted by Dona Aparecida to receive the
candidates’ phone calls, she was asked about the color of her skin,
and she immediately answered that she is Black, and was then informed
that she didn’t meet the requirements for the job.
8. Mrs. Simone Diniz
immediately reported the racial discrimination she suffered and the
racist ad to the Ordem dos Advogados do Brasil, São Paulo Section,
in particular the Subcommittee on Blacks, and, accompanied by an attorney,
she lodged a criminal complaint with the then-Special Division for Racial
Crimes (Delegacia de Crimes Raciais).
On March 5, 1997, a police inquiry was opened, number 10,541/97-4,
to investigate the violation of Article 20 of Law 7716/89, which defines
the practice of racial discrimination or prejudice as a crime.
The police officer responsible for the inquiry took sworn statements
from all of the persons involved: the alleged perpetrator of the violation
and her husband, the alleged victim, and the woman who received the
phone call from Mrs. Simone Diniz.
9. According to
the petitioners, on March 19, 1997, the police officer prepared a report
on the criminal complaint and forwarded it to the judge. The Public
Ministry was informed of the inquiry–only the Public Ministry has standing
to initiate a public criminal action–it stated its position on April
2, 1997, ordering that the proceeding be archived, arguing that “...
it was not found in the record that Aparecida Gisele had committed any
act that could constitute the crime of racism, provided for in Law 7716/89...”
and that the record reflected “... no basis for filing charges.”
The petitioners reported that the judge rendered a judgment to
archive the case on April 7, based on the reasons set forth by the member
of the Public Ministry.
The petitioners alleged that the police inquiry had sufficient
and adequate indicia of evidence for the criminal complaint based on
the violation of Article 20, caption, of Law 7716/89, i.e., the identity
of the perpetrators and materiality of the criminal offense was proven.
In addition, they reported that the mere publication of the discriminatory
classified ad had itself constituted the punishable crime, under paragraph
2 of Article 20 of the same law; these facts suffice for the Public
Ministry to have filed criminal charges.
Moreover, according to petitioners, the Public Ministry could
not have based its line of argument on the alleged and not proven fact
that Mrs. Aparecida had had a negative experience with a Black employee
who mistreated her children. Those facts, according to the petitioners,
did not authorize Mrs. Aparecida to discriminate against any other Black
domestic employee. In addition, the mere fact of being married to a
Black man does not release her from liability or make her less guilty
of the offense.
Finally, they adduced that “even though the Public Ministry issues
its opinion in favor of archiving the police inquiry, the judge was
not under an obligation to accept it.
If he did so, it was because he was not diligent in looking into
The petitioners alleged that the Brazilian State undertook to
comply with the provisions of the Convention on Racial Discrimination,
and consequently to “condemn racial discrimination” and “to ensure that
all public authorities and public institutions, national and local,
shall act in conformity with this obligation.” Moreover, they reported that pursuant to the Convention on
Racial Discrimination, Brazil undertook to “guarantee the right of everyone,
without distinction as to race, color, ... ” ... “the right to equal
treatment before the tribunals and all other organs administering justice.”
In addition, they reported that Brazil undertook to ensure “to
everyone within their jurisdiction effective protection and remedies,
through the competent national tribunals and other State institutions,
against any acts of racial discrimination which violate his human rights
and fundamental freedoms contrary to this Convention, as well as the
right to seek from such tribunals just and adequate reparation or satisfaction
for any damage suffered as a result of such discrimination.”
The petitioners alleged that in Brazilian criminal procedure,
no appeal can be taken from a judgment to archive a police inquiry,
unless new facts arise that justify opening a new investigation. According
to the petitioners, that decision kept Mrs. Simone from proving, in
a criminal proceeding, that Mrs. Aparecida Gisele engaged in racial
discrimination; moreover, the possibility of a civil action for moral
damages, in the event that she had been held criminally liable, was
also precluded. These acts violated her right of access to justice.
At the same time, Mrs. Simone was denied the right to equal treatment
by the justice system, in relation to those victims whose complaints
had been investigated and reported by the Public Ministry so that liability
could be determined.
The State’s position
The State, in a brief dated May 12, 1998, provided clarifications,
reserving the right to transmit pertinent information, in due course,
that it might receive on the case.
Nonetheless, it declared that “based on a reading of the petition,
it does not perforce lead to the perception that in their communication
to the Commission the petitioners have clearly laid the foundation for
the alleged violation of the American Convention on Human Rights and
of the Convention on the Elimination of All Forms of Racial Discrimination.”
In effect, the Brazilian Government noted that “the ‘automatic’
processing of manifestly unfounded petitions could generate unnecessary
disquiet, in addition to diverting material and human resources available
in the Commission and the member states for processing petitions that
should be declared inadmissible ab initio.”
In addition, the State recalled that “Article 47(c) of the American
Convention on Human Rights, as well as Article 41(c) of the Commission’s
Rules of Procedure, determine that the Commission should declare inadmissible
any petition which, based on the presentation by the petitioner or the
State, is groundless or out-of-order. The so called pro
homine principle, which governs international systems for the protection
of human rights–and according to which the states bear the burden of
proof–only makes sense in a context of likely and well-founded allegations.
Otherwise, one runs the risk of undermining the transparency and juridical
security of the system.”
The State insisted that the case in question did not entail a
violation of human rights. It said that “the police inquiry was conducted
in keeping with the rules of Brazilian legislation, and archived by
the competent judicial authority based on the opinion of the Public
Ministry, after hearing the sworn statements of the persons involved.”
IV. ANALYSIS OF ADMISSIBILITY
Competence of the Commission
ratione personae, ratione materiae,
In keeping with Article 44 of the American Convention and Article
23 of the Rules of Procedure, the petitioners, as legally-recognized
non-governmental organizations, have standing to present petitions to
the Commission referring to alleged violations of the rights established
in the American Convention. As for the State, Brazil is a party to the
American Convention, and therefore answers internationally for violations
of that Convention. The
Commission observes that the facts with respect to which racial discrimination
is alleged are not attributed directly to the Brazilian State, but to
a private person. Nonetheless, violations of the Convention are alleged
in relation to the State’s response, through its judicial organs, to
the facts alleged, which are to be analyzed by the Commission in the
merits stage. The petitioners noted as the alleged victim Mrs. Simone André
Diniz, a national, with respect to whom the Brazilian State undertook
to respect and ensure the rights set forth in the Convention. Accordingly,
the Commission has competence ratione
personae to examine the complaint.
The Commission is competent ratione
materiae as violations have been alleged of human rights protected
by the American Convention at Articles 1, 8, 24, and 25. With respect
to the violation of rights protected by the International Convention
on the Elimination of All Forms of Racial Discrimination, it should
be noted that the Commission is not competent to examine violations
of the rights guaranteed by that Convention. Nonetheless, in light of
Article 29 of the American Convention, the Commission may use the Convention
on Racial Discrimination as guidance for interpreting the international
obligations freely assumed by the State.
The Commission is competent ratione
temporis insofar as the facts alleged occurred when the obligation
to respect and ensure the rights established by the Convention was already
in force for the State, as it ratified the American Convention on September
The Commission is competent ratione
loci because the facts alleged occurred in the territory of the
Federative Republic of Brazil, which has ratified the American Convention.
Exhaustion of domestic remedies
The petitioners lodged this petition with the IACHR in October
1997, arguing that the victim had exhausted domestic remedies for investigating
and punishing the offense of which Mrs. Aparecida is accused. It reported
that the incident occurred on March 2, 1997. The police inquiry was
opened on March 5, 1997. The pertinent report was sent to the competent
judge. On April 2, 1997,
the Public Ministry issued its opinion. On April 7, 1997, the criminal
judge rendered the judgment, ruling that the record be archived.
The State did not controvert this fact; indeed, it ratified the
final nature of the decision of first instance, against which no appeal
Accordingly, the IACHR is of the view that domestic remedies
were exhausted and that the requirement at Article 46(1)(a) has been
Time period for submission
The present complaint was filed in timely fashion, under Article
46(1)(b), as it was formally lodged on October 7, 1997, prior to the
expiration of the six-month period provided for by the Convention, as
the judgment, which is non-appealable, was rendered on April 7, 1997;
this satisfies the requirement at Article 46(1)(b) of the American Convention.
Duplication of procedures and res
The Commission does not see any indication in the record that
the complaint brought before this Commission is pending before any other
international procedure, and it did not receive any information indicating
the existence of such a situation; likewise, there is no indication
that it reproduces any petition or communication previously examined
by the IACHR. Accordingly, the Commission understands that the requirement
of Articles 46(1)(c) and 47(d) have been met.
Characterization of the facts
The Commission considers that prima
facie the facts alleged by the petitioners state facts that tend
to establish a violation of the American Convention at Articles 1, 8,
24, and 25, for possible violations of the obligation to respect the
rights, the right to a fair trial, the right to equality before the
law, and the right to judicial protection, in the person of Mrs. Simone
As for the statement made by the State regarding the inadmissibility
of the petition for being unfounded, the Commission is of the view that
establishing whether or not there has been a violation of the American
Convention is not for this stage of the proceeding. For purposes of
admissibility, the IACHR must decide whether facts have been alleged
that tend to establish a violation, as stipulated by Article 47(b) of
the American Convention, and whether the petition is “manifestly groundless,”
or “obviously out of order,” as per Article 47(c). The standard of appreciation of these rules is different from
that required to decide on the merits of a complaint. The IACHR must make a prima
facie evaluation to examine whether the complaint states facts indicative
of an apparent or potential violation of a right guaranteed by the Convention,
and not to establish the existence of a violation. This examination is a summary analysis that does not imply
a pre-judging or preliminary opinion on the merits. The Commission’s Rules of Procedure, on establishing two clear
stages for admissibility and merits, reflects the distinction between
the evaluation that the Commission must make for purposes of declaring
a petition admissible and that required to establish a violation.
From the analysis of the petition now under consideration, the
Commission considers that the complaint does not fit under Article 47(b)
or (c), and therefore that it meets the requirements of the American
The Commission concludes that it is competent to take cognizance
of this petition and that it meets the admissibility requirements set
forth at Articles 46 and 47 of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare, without pre-judging on the
merits of this complaint, that the present petition is admissible in
relation to the facts alleged and with respect to Articles 8 (right
to a fair trial), 24 (equality before the law), and 25 (right to judicial
protection), all in relation to Article 1(1) (obligation to respect
the rights contained in the Convention).
2. To forward this report to the State and
3. To publish this decision and include
it in its 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., the 9th day of October 2002. (Signed): Juan Méndez; President, Marta Altolaguirre; First Vice-President, Robert K. Goldman, Julio Prado Vallejo, and Clare K. Roberts, Commission members.
The ad in question stated as follows: “domestic (female). Home.
Live-in. W/ exp. All routine, care for children, with documentation.
And ref.; Pref. White, without children, single, over 21.
Gisele” (“doméstica. Lar. P/ morar no empr. C/ exp. Toda rotina,
cuidar de crianças, c/docum. E ref.; Pref. Branca, s/filhos, solteira,
maior de 21a. Gisele”).
Law 7716/89 Art. 20 Practicing, inducing, or inciting racial discrimination
Penalty: imprisonment for 1 to 3 years and fine....
Paragraph 2 If any of the crimes provided for in the caption
is committed through the communications media or a publication whatever
the type: Penalty: imprisonment for 2 to 5 years and fine.