REPORT Nº 38/07
MARCIA BARBOSA DE SOUZA
July 26, 2007
1. On March 28, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or the “IACHR”) received a petition submitted by the Center for Justice and International Law (CEJIL) and the Movimento Nacional dos Direitos Humanos (MNDH)/Regional Office for Northeast Brazil (hereinafter “the petitioners”), and updated information on October 3, 2006, in which it is alleged that the Federative Republic of Brazil (hereinafter “Brazil” or “the State”) violated Articles 2, 4, 24, 25, and 1(1) of the American Convention on Human Rights (hereinafter “the American Convention”), and Articles 3, 4, 5, and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the “Convention of Belém do Pará” (hereinafter “the Convention of Belém do Pará”) to the detriment of Marcia Barbosa de Souza.
2. Through this petition, it is alleged that the State is responsible for violating the rights of Ms. Marcia Barbosa de Souza, whose corpse was found in a vacant lot on the outskirts of the city of Joao Pessoa, capital of the state of Paraíba, on June 18, 1998. An investigation was opened in this regard by the local police, which was concluded on August 27, 1998. Responsibility for the crime was attributed to a state legislator, said to be the alleged victim’s lover. For this reason, the Office of the Attorney General in principle would have been impeded from bringing a criminal action against that person, given his legislative immunity, as the state legislature had not granted authorization for so proceeding. On December 20, 2001, with the adoption of Constitutional Amendment No. 35/2001, it was determined that criminal actions against legislators would be admitted independent of whether there was authorization by the Legislative Assembly. Nonetheless, the competent authorities in Paraíba did not take any new initiative in the criminal action until March 2003. More than four years since the last information was sent in, the case has still not gone to trial, as it has been processed with extreme sluggishness. Any decision may be subject to several types of review, and more than eight years have elapsed since the underlying facts, which would extend impunity in relation to the case.
3. On September 26, 2000, the State answered the petition; it forwarded additional information on the matter on October 31, 2000, stating that the Attorney General for the state of Paraíba and the Public Ministry lodged a complaint against the state legislator accused. On two occasions it was asked that he be stripped of immunity so that a criminal action could be brought against him; the requests were denied.
4. After examining the parties’ positions in light of the admissibility requirements established in Articles 46 and 47 of the American Convention, the Commission decided to find the case admissible in relation to Articles 4, 8(1), 24, and 25 of the American Convention, in conjunction with the general obligation contained in Article 1(1) of the same instrument, and Article 7 of the Convention of Belém do Pará. In addition, it decided to declare the petition under study inadmissible with respect to Article 2 of the American Convention and Articles 3, 4, and 5 of the Convention of Belém do Pará.
5. Accordingly, the Commission decided to notify the parties and make public this report on admissibility, and include it in its Annual Report.
II. PROCESSING BEFORE THE COMMISSION
6. On April 19, 2000, the Commission notified the State that a petition had been filed against it, and forwarded to it the pertinent parts of that complaint, in addition to notifying it of the moment the 90-day term established by Article 34 of the RegulatioS of the Commission in force at that time began to run, for the State to submit its answer. On that same date, an acknowledgement of receipt of their petition was communicated to the petitioners.
7. On August 8, 2000, the State requested an extension of the term granted to it to answer the petition; the fact that it was granted was communicated to the State on August 14, 2000.
8. On September 26, 2000, the State provided information to the Commission regarding the petition brought against it; this information was transmitted to the petitioners on October 5, 2000. They were given 45 days to submit observations on this information. On October 5, 2000, an acknowledgement of receipt of the information forwarded by the State was transmitted to the State.
9. By note of October 31, 2000, received by the Commission on November 2, 2000, the State provided additional information about the case; on November 20, 2000, it was transmitted to the petitioners, who were given 45 days to submit observations. That same day, the State was sent an acknowledgement of receipt regarding the information in question.
10. On December 21, 2000, the petitioners submitted observations on the additional information provided by the State. The acknowledgement of receipt of this information was communicated to them on December 26, 2000. On that same date, the observations alluded to were transmitted to the State, which was given 45 days to submit the observations it considered pertinent.
11. On May 20, 2003, the petitioners submitted additional information on the case. The acknowledgement of receipt of that information was sent to them on June 11, 2003; this information was transmitted to the State, so that it might submit any information as it saw fit within 30 days.
12. On September 7, 2006, the Commission asked the petitioners to submit current information on the case, and to indicate whether it was still interested in going forward with the case. The petitioners sent their response on October 3, 2006.
13. On November 17, 2006 the State requested an extension of 30 days, which was granted by the Commission on December 5, 2006. On July 19, 2007 the State sent new information on the case for the consideration of the Commission, which was sent to the petitioners on July 25, 2007 for their observations.
III. THE PARTIES’ POSITIONS
A. The petitioners’ position
14. It is adduced that the body of Marcia Barbosa de Souza was found in a vacant lot on the outskirts of the city of Joao Pessoa, capital of the state of Paraíba, on June 18, 1998. To investigate the homicide, the Civilian Police of the State of Paraíba opened investigation No. 98.004184.0. Once the victim was identified, it was discovered that she was 20 years old, was a student, was unemployed, and was from the city of Cajazeiras, state of Paraíba, the daughter of Severino Reinaldo de Souza and Marineide Barbosa de Souza, both residents of Cajazeiras.
15. According to the petitioners, the investigation reconstructed the victims’ last movements in Joao Pessoa, and it was found that she was lodging at an inn by the name of “Canta Maré,” where she received several telephone calls from the above-referenced person, who was a state legislator at the time; that information was verified by the operators of that locale, whose statements given in the investigation are attached. According to the investigation, they state that on June 17, 1998, after receiving a final phone call from the legislator in question, the alleged victim left the inn to meet him. Hours later, still in the company of the legislator, she made a phone call from his cell phone to her city, Cajazeiras, where she spoke with a friend by the name of Marcia, and with her family. The friend said that the alleged victim was in a motel with the legislator, and that she, the declarant, spoke with him. The mother said that her daughter sounded happy, for she had gotten a job, and intended to stay in Joao Pessoa. It is noted that this was the alleged victim’s last contact with family and friends.
16. The petitioners argue that on the morning of June 18, 1998, a passerby saw the vehicle used at the time by the then-legislator throw “something” (“algo”) in a vacant lot and went to see what it was, and came across the alleged victim’s corpse. Once the police were advised, the corresponding investigations were opened; the expert autopsy report found that the death of the individual in question had as its cause asphyxia provoked by suffocation. This investigation, under the direction of police delegate Adesaldo Ferreira, concluded with a report that pointed to the then-state legislator as the student’s murderer. It appears in the final report of the investigation that the legislator had been seen in the company of the alleged victim the night before the crime, and there is other evidence that confirmed his presence in her company, during the last hours she was alive; having left with him, she never returned.
17. In the petitioners’ words, the police of Paraíba forwarded the file to the Public Ministry of the state. As a privilege inherent to his position, the then-legislator enjoyed legislative immunity, which is why the file went to the Chief of the Public Ministry for the state of Paraíba, who proceeded to pursue the case, lodging a criminal complaint; the complaint includes a caveat that the criminal action could only be brought with the permission of the Legislative Assembly, for the legislator to be prosecuted. The investigation concluded on August 27, 1998. On October 8, 1998, the Attorney General filed a complaint before the Court of Appeals of the state of Paraíba against the state legislator for the murder of the alleged victim, asking that the necessary authorization be requested of the Legislative Assembly of the state of Paraíba, since the accused was a member of that body at the time. On October 9, 1998, the judge hearing the matter ordered it be forwarded to the office of “Judicial Coordination” so that the Legislative Assembly be notified of the request to lift his immunity; it was forwarded to the President of that body on October 17, 1998. On December 17, 1998, the legislature issued Resolution No. 614/98, denying the request to lift immunity, sent by the Court of Appeals of the state, to be able to proceed with the indictment of the state legislator; this decision was published in the official gazette of the legislative branch on December 18, 1998. In March 1999, as a new legislative session was beginning, the judiciary of the state of Paraíba submitted a new request to the Legislative Assembly to have the legislator’s immunity lifted, and that request was again denied, without it being published in the official gazette.
18. The petitioners adduced that granting a request to lift immunity is a discretional act of the legislative branch, whose decision is based on a secret ballot of its members. Having exhausted this mechanism, its result is definitive, at least until the end of the term of the person in question, leaving the judiciary without jurisdiction to modify that decision. The legislative decision to deny the request to lift immunity prevents any judicial measure from being taken against the legislator, there not being, in the positive law in force in the State, any measure whatsoever to change this situation. Given that the judicial avenue was closed off by the Legislative Assembly, and as no other remedy exists, the domestic remedies for pursuing this case were exhausted. Overturning the legislative resolution in question requires a new resolution authorizing the lifting of immunity. It is alleged that the position of the legislative branch has constituted a hindrance to access to justice for the family of the alleged victim; it was impossible for them to have a criminal action brought against the person allegedly responsible.
19. In the additional information sent by the petitioners on October 3, 2006, it is said that on December 20, 2001, there was a legislative change in the State regarding legislative immunity, with the approval, by the National Congress, of Constitutional Amendment No. 35/2001, which determined that criminal actions against legislators could be admitted, without the prior authorization of the legislative chamber to which he or she belongs. With this innovation, after the proceeding was initiated, it must be communicated to the body of which the accused is a member, which may suspend the criminal proceeding, if it deems it advisable to do so, by vote of the majority of its members.
20. The petitioners assert that as regards the instant case, despite that modification, the authorities with jurisdiction to trigger a criminal action in the state of Paraíba did not take measures aimed at starting up anew the judicial activities aimed at shedding light on responsibility for the crime until March 2003.
21. According to the petitioners, a resolution known as the “pronunciamento” (indictment) against the former legislator was handed down on July 27, 2005, seven years after the crime was committed, as the Brazilian justice system considered that there were sufficient indicia to determine that he had been the perpetrator of the crime. The defense appealed this decision; its appeal was rejected. More than one year has passed waiting for the proceeding to be placed on the court’s docket for trial by jury.
22. They mention that as the accused is free pending trial, the case has not been accorded priority, in keeping with Article 431 of the Brazilian Code of Criminal Procedure. Mindful of the reality of the local justice system, it is said, there is no expectation that the case will be tried this year, and once a possible conviction is handed down, remedies would be available to challenge it, thus any final conviction is years off; and it should be considered that the homicide of Marcia Barbosa occurred more than eight years ago.
23. Petitioners note that even though the leading suspect is no longer a member of the legislature, he still wields considerable influence in local politics in the state of Paraíba, which may result in meddling so as to affect the impartiality of a trial by jury. The very delay in the matter shows the influence of the former legislator and his political group in the local judiciary, for even though the local community has become aware of and sensitive to the situation, it was not possible to get the authorities in charge to act immediately, once the possibility of going forward with the necessary indictment became feasible.
24. Petitioners adduce that more than three years after the criminal action was filed, it has gone forward with excessive sluggishness, bearing in mind that there has yet to be any decision on the merits. This delay, they argue, reflects the way the judiciary in Brazil treats cases of violence against women. Once the obstacle of legislative immunity was removed, the present hypothesis illustrates the grave pattern of discrimination in judicial matters, that is seen in the cases of attacks on and killings of women. After referring to situations addressed by the Commission, they argue that in the instant case there has been a context of impunity as regards situations in which violence against women is involved, whose particular characteristic consists of the extreme sluggishness in processing the criminal action brought against the alleged perpetrator.
25. Petitioners allege violations of the rights enshrined in Articles 4, 8, 24, 25, 1(1), and 2 of the American Convention, and Articles 3, 4, 5, and 7 of the Convention of Belém do Pará, and ask that the State be found responsible in this regard, and that it be ordered to pay the appropriate compensation.
B. The State’s position
26. The State asserts that according to the Attorney General of the state of Paraíba, Mr. José Paulo Neto, the Public Ministry filed a complaint against the state legislator, the leading suspect in the homicide of student Marcia Barbosa de Souza. On two occasions, October 14, 1998, and March 31, 1999, the Court of Appeals of Paraíba asked the Legislative Assembly of that state for authorization to go forward in a criminal action against him, yet both requests were denied. It is also reported that the Secretariat of Human Rights is examining the possibility of taking measures in relation to this case.
27. In the additional information received on November 2, 2000, it was stated that during Regular Meeting No. 126 of the Council for the Defense of Human Rights (professional association created by Law No. 4.319), held on October 10, 2000, one of the issues addressed was the alleged victim’s murder; on that occasion the Council designated a Committee made up of Professor Flavia Piovesan and Mr. Percílio de Souza Lima Neto, in charge of taking action directly to obtain reports on the case. The State argued to the Commission that one would have to make contact with the Legislative Assembly of the state of Paraíba in order to note that the gravity of the circumstances in the case led to a complaint being filed against the Brazilian State before this Commission for violations of the rights and guarantees provided for in the American Convention. In addition, the Council for the Defense of Human Rights decided to take actions along with the executive, judiciary and legislative branches locally in order to emphasize the issue on the case and the importance given by the Federal Government to punish those responsible for the crime, and redress the damages caused to victim’s family. On December 21, 2001 the Brazilian National Congress passed a Constitutional Amendment No. 35/2001 altering the immunity institution established on the Federal Constitution.
28. In the information sent on July 19, 2007, the State affirmed that the criminal action against Mr. Aércio Pereira de Lima was on its second stage, called judgment stage. The judgment by the Jury Trial has been established for September 26, 2007. Moreover, the State alleged that the case be declared inadmissible as it does not meet the admissibility requirements established on Article 31(1) of the Commission’s Rules of Procedure, and Article 46(1)(a) of the American Convention.
IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY
1. Competence of the Commission rationae personae, rationae loci, rationae temporis, and rationae materiae
29. The petitioners argue that the State has violated the rights of the alleged victim enshrined in Articles 2, 4, 24, and 25 of the American Convention; and Articles 3, 4, 5, and 7 of the Convention of Belém do Pará, to the detriment of the alleged victim and her next-of-kin.
30. The petitioners are authorized by Article 44 of the Convention to submit complaints to the IACHR. The petition notes as the alleged victim Marcia Barbosa de Souza, a citizen of the Brazilian State, therefore, the Commission is competent rationae personae to examine the petition.
31. The Commission considers that it is competent rationae materiae, rationae loci, and rationae temporis as the petition addresses rights protected by the American Convention and the Convention of Belém do Pará, both in force at the time of the facts, and binding on the Federative Republic of Brazil.
32. With respect to its competence to apply the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belém do Pará”), the Commission is competent in general as it is an inter-American human rights instrument, and also because of the specific charge to the Commission in Article 12 of that Convention, which states:
Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Inter-American Commission on Human Rights containing denunciations or complaints of violations of Article 7 of this Convention by a State Party, and the Commission shall consider such claims in accordance with the norms and procedures established by the American Convention on Human Rights and the Statutes and Regulations of the Inter-American Commission on Human Rights for lodging and considering petitions.
2. Exhaustion of domestic remedies
33. Article 46(1)(a) of the Convention requires, in order for a petition or communication submitted to be admitted by the Commission, “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” Nonetheless, Article 46(2) provides that this requirement shall not apply whenever:
(a) 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 been violated;
(b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or,
(c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
34. Without getting into an analysis of the arguments put forth by the parties concerning the alleged violation of judicial guarantees and judicial protection, the Inter-American Commission observes, preliminarily, that as of the date of the approval of this report, more than eight years have gone by since the murder of Marcia Barbosa. The incident was duly reported to the authorities, but neither a police investigation or a prosecutorial accusation could go forward, for the suspect enjoyed legislative immunity. This last obstacle was removed once he was no longer a member of the legislature. Moreover, Constitutional Amendment No. 35/2001 was passed into law, and an indictment was handed down against the former legislator on July 27, 2005.
35. That the actions against the suspect were taken up anew in March 2003 is taken as true, for the State did not refute this fact. As of the date of the preparation of this report, it is said that more than four years have elapsed since the judicial procedure was reopen and recently the case would have been included on the docket to be tried on September 26, 2007 by the competent organ. Since the punishable act occurred, as has already been said, more than eight years have gone by without any determination of who was responsible for it.
36. In addition, the Inter-American Commission observes that the petitioners allege that the facts of the case unfold in a context of cases in which women are victims of violence, which is expressed in an excessive delay in its processing, resulting in impunity for the perpetrators of these acts. While the State alleges that the judicial process is advancing accordingly to the law, it has not presented information that expresses or justifies the time length it has taken to the judicial process.
37. In light of all the foregoing, and from the documents in the record of this matter, the Inter-American Commission establishes – for purposes of admissibility – that there has been an unwarranted delay in the decision of the judicial bodies of Brazil with respect to the facts alleged. Accordingly, the IACHR applies to this matter the exception to the prior exhaustion requirement found at Article 46(2)(c) of the American Convention.
3. Time period for submission
38. Under Article 46(1)(b) of the American Convention, it is an admissibility requirement that petitions be submitted within six months of notice to the injured party of the judgment exhausting domestic remedies.
39. Article 32(2) of the Rules of Procedure of the Commission mandates that in those cases in which exceptions to the prior exhaustion requirement apply, the petition should be submitted in a reasonable time, based on the Commission’s judgment: To this end, the Commission “shall consider the date on which the alleged violation of rights occurred and the circumstances of each case….”
40. In the instant case, the Commission ruled supra on the applicability to the situation of the exception to the rule on exhausting domestic remedies. Therefore, the Inter-American Commission must determine whether the petition was submitted within a reasonable time, as established by the provision cited.
41. In keeping with the foregoing paragraphs, as the petition was lodged on March 28, 2000, almost two years after the crime, the Commission considers that the submission was within the standards of reasonableness to which the provision in question refers, mindful of the period elapsed since the crime took place, without the domestic judicial proceeding in relation to it going forward, which, as said, constitutes a clear exception to the prior exhaustion requirement, without prejudice to the analysis that this body will perform in relation to the possible violations of Articles 8 and 25 of the American Convention.
4. Duplication of procedures and international res judicata
42. It does not appear from the record that the subject matter of the petition is pending before any other international procedure for settlement, nor that it reproduces a petition already examined by this or another international organ. Therefore, it should be considered that the requirements established in Articles 46(1)(c) and 47(d) of the Convention have been met.
5. Characterization of the facts alleged
43. For purposes of admissibility, the IACHR must decide whether facts are stated that tend to establish a violation, as stipulated in Article 47(b) of the American Convention, and whether the petition is “manifestly groundless” or “obviously out of order,” as described in Article 47(c).
44. The standard of appreciation of these rules is different from that for deciding on the merits of a complaint. The IACHR must undertake a prima facie evaluation to analyze whether the complaint states the basis for an apparent or potential violation of a right guaranteed by the Convention, not to determine whether there has been a violation. Such an examination is a summary analysis that does not imply prejudging or anticipating an opinion on the merits. As we encounter, in this hypothesis, an account that describes a possible violation of basic rights such as the rights to life, equality before the law, judicial guarantees, access to justice, and women’s rights, inherent to the alleged victim, all in relation to the general obligation contained in Article 1(1) of the American Convention, it is proper to undertake a study of this dispute.
45. The Commission does not find that the petition is “manifestly groundless” or that it is “obviously out of order.” Accordingly, the IACHR considers that, prima facie, the petitioners have shown what is required to consider it admissible.
46. Nonetheless, the petitioners allege that the State breached its obligation contained in Article 2 of the American Convention regarding the duty to adopt provisions of domestic law to ensure respect for the rights contained in the Convention. According to the information submitted by the petitioners on October 3, 2006, the Commission notes that on December 20, 2001, there was a change in the domestic law in relation to legislative immunity, with the approval by the National Congress of Constitutional Amendment No. 35/2001, which determined that the criminal action against members of the legislature could be admitted with the prior authorization of the legislative body to which they belong, thereby fixing the defect alleged, thus a study of the possible breach of that obligation should be found inadmissible.
47. In addition, the Commission must bear in mind that the petitioners allege violations of the rights enshrined in Articles 3, 4, and 5 of the Convention of Belém do Pará.
48. As transcribed supra, Article 12 of the Convention of Belém do Pará establishes that all petitions alleging facts violative of the rights guaranteed in that instrument, expressly contained in its Article 7, are justiciable before the organs of the inter-American system, Article 7 provides fundamental commitments.
49. Applying Article 12 of the Convention of Belém do Pará transcribed supra, this organ must find inadmissible the alleged violations of Articles 3, 4, and 5 of that instrument.
50. Mindful of what is stated, the Inter-American Commission considers that, if the facts stated with respect to the violation of the right to life, the right to equality before the law and judicial guarantees, access to justice, and women’s rights, against the alleged victim and her next-of-kin, are shown, the instant case would tend to establish a possible violation of the guarantees safeguarded by Articles 4, 8(1), 24, and 25 of the American Convention, and Article 7 of the Convention of Belém do Pará, for prima facie, with the factual description of the situation, it has been clearly shown that we find ourselves before a potential violation of the rights guaranteed by these provisions.
51. The IACHR considers that the facts explained above characterize possible violations of Article 24 of the American Convention in connection of Article 1(1) of the same instrument. The Inter-American Commission observes that petitioner’s allegation is based on facts that occurred on a context of impunity in relation to violent acts by the justice administration, affecting disproportionably women as a group, and tend for the repetition of these acts. Within this pattern of impunity, attitudes from judicial employees based on socio-cultural discriminatory concepts that affect mainly women can be found. The mentioned pattern allegedly results in extreme and unjustifiable procedural dilates in cases of violence against women, which is argued in this case, despite of the legislative reform related to the parliamentary immunity in 2001.
52. The possible violations will be analyzed in conjunction with the general obligation provided for at Article 1(1) of the American Convention.
53. Based on the foregoing considerations of fact and law, and without prejudging on the merits, the Commission concludes that this case satisfies the admissibility requirements set forth at Articles 46 and 47 of the American Convention,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To find the petition under study admissible, in relation to Articles 4 (right to life), 8(1) (right to a fair trial), 24 (right to equality before the law), and 25 (right to judicial protection) of the American Convention, in conjunction with Article 1(1) of the same instrument, and Article 7 of the Convention of Belém do Pará.
2. To find the petition under study inadmissible in relation to Article 2 of the American Convention and Articles 3, 4, and 5 of the Convention of Belém do Pará.
3. To notify the State and petitioner of this decision.
4. To begin the processing on the merits.
5. To publish this decision and include it in the Annual Report to be presented to the General Assembly of the OAS.
Done and signed in the city of Washington, D.C., on the 26th day of the month of July, 2007. (Signed): Florentín Meléndez, President; Paolo G. Carozza, First Vice-President, Víctor E. Abramovich, Second Vice-President; Sir Clare K. Roberts, Evelio Fernández Arévalos, and Freddy Gutiérrez, Commissioners.
 In keeping with Article 17(2)(a) of the Rules of Procedure of the IACHR, Commissioner Paulo Sérgio Pinheiro, of Brazilian nationality, did not participate in the decision on this petition.
 Final Report of the Bureau of Crimes against the Person. Annex 1 of the petition.
 Indictment handed down by the Public Ministry against the former legislator. Annex 2 of the petition.
 Final report of the Bureau of Crimes against the Person. Annex 1 of the petition.
 Indictment handed down by the Public Ministry against the former legislator. Annex 2 of the petition.
 Official note from the Judicial Branch to the Legislative Assembly requesting the lifting of immunity. Annex 3 of the petition.
 Resolution of the Legislative Assembly denying the lifting of immunity. Annex 4 of the petition.
 New Official note from the Judicial Branch asking that the Assembly lift immunity. Annex 5 of the petition.
 Ratified by Brazil on November 25, 1992.
 Ratified by Brazil on November 27, 1995.
 IACHR, Report No. 31/ 99, Case 11,763, Plan de Sánchez Massacre, Admissibility, March 11, 1999.
 IACHR, Report No. 21/04, Petition 12,190, Admissibility, José Luis Tapia González et al., Chile, February 24, 2004, para. 33.