Maria da Penha v. Brazil, Case 12.051, Report No. 54/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 704 (2000).
REPORT Nº 54/01*
DA PENHA MAIA FERNANDES
On August 20, 1998, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition filed by
Mrs. Maria da Penha Maia Fernandes, the Center for Justice and International
Law (CEJIL), and the Latin American and Caribbean Committee for the Defense
of Womens Rights (CLADEM) (hereinafter "the petitioners"),
as provided for in Articles 44 and 46 of the American Convention on Human
Rights (hereinafter "the Convention" or "the American Convention")
and Article 12 of the Inter-American Convention on the Prevention, Punishment,
and Eradication of Violence against Women (Convention of Belém do Pará
The petition alleges that the Federative Republic of Brazil (hereinafter
"Brazil" or "the State") condoned, for years during
their marital cohabitation, domestic violence perpetrated in the city
of Fortaleza, Ceará State, by Marco Antônio Heredia Viveiros against his
wife at the time, Maria da Penha Maia Fernandes, culminating in attempted
murder and further aggression in May and June 1983.
As a result of this aggression, Maria da Penha has suffered from
irreversible paraplegia and other ailments since 1983.
The petition maintains that the State has condoned this situation,
since, for more than 15 years, it has failed to take the effective measures
required to prosecute and punish the aggressor, despite repeated complaints.
The petition alleges violation of Article 1(1) (Obligation to Respect
Rights), 8 (a Fair Trial), 24 (Equal Protection), and 25 (Judicial Protection)
of the American Convention, in relation to Articles II and XVIII of the
American Declaration of the Rights and Duties of Man ("the Declaration"),
as well as Articles 3, 4(a), (b), (c), (d), (e), (f), and (g), and 5 and
7 of the Convention of Belém do Pará. The Commission processed the petition in accordance with the
regulations. In view of the
fact that the State failed to provide comments on the petition despite
the repeated requests of the Commission, the petitioners asked that the
events related in the petition be presumed to be true and that Article
42 of the Regulations of the Commission be applied.
In this report, the Commission analyzes admissibility requirements
and considers the petition admissible pursuant to Articles 46(2)(c) and
47 of the American Convention, and 12 of the Convention of Belém do Pará.
With respect to the merits of the case, the Commission concludes
that the State violated the right of Mrs. Maria da Penha Maia Fernandes
to a fair trial and judicial protection, guaranteed in Articles 8 and
25 of the American Convention, in relation to the general obligation to
respect and guarantee rights set forth in Article 1(1) of that instrument
and Articles II and XVIII of the Declaration, as well as Article 7 of
the Convention of Belém do Pará.
It also concludes that this violation forms a pattern of discrimination
evidenced by the condoning of domestic violence against women in Brazil
through ineffective judicial action.
The Commission recommends that the State conduct a serious, impartial,
and exhaustive investigation in order to establish the criminal liability
of the perpetrator for the attempted murder of Mrs. Fernandes and to determine
whether there are any other events or actions of State agents that have
prevented the rapid and effective prosecution of the perpetrator.
It also recommends prompt and effective compensation for the victim,
and the adoption of measures at the national level to eliminate tolerance
by the State of domestic violence against women.
PROCESSING BY THE COMMISSION AND FRIENDLY SETTLEMENT OFFER
On August 20, 1998, the Inter-American Commission received the
petition related to this case and on September 1 of that year, it forwarded
a communication to the petitioners acknowledging receipt of their petition
and informing them that it had begun to process the case.
On October 19, 1998, the Inter-American Commission forwarded the
petition to the State and requested information from it on the matter.
In light of the failure on the part of the State to respond, on
August 2, 1999, the petitioners requested application of Article 42 of
the Regulations of the Commission, so that the events related in the petition
could be presumed to be true, in view of the fact that more than 250 days
had elapsed since the forwarding of the petition to Brazil and no comments
had been received from the latter on the case.
On August 4, 1999, the Inter-American Commission again asked the
State to submit the information that it deemed pertinent, and warned of
the possible application of Article 42 of its Regulations.
On August 7, 2000, the Commission made itself available to the
parties for 30 days to begin the friendly settlement process pursuant
to Articles 48(1)(f) of the Convention and 45 of the Regulations of the
Commission. To date it has
not received a positive response from either party, and, for this reason,
the Commission holds the view that during this processing phase, the matter
cannot be resolved through these channels.
POSITIONS OF THE PARTIES
The petition states that on May 29, 1983, Mrs. María da Penha Maia
Fernandes, a pharmacist, was the victim of attempted murder by her then
husband, Marco Antônio Heredia Viveiros, an economist, at her home in
Fortaleza, Ceará State. He
shot her while she was asleep, bringing to a climax a series of acts of
aggression carried out over the course of their married life.
As a result of this aggression of her spouse, Mrs. Fernandes sustained
serious injuries, had to undergo numerous operations, and suffered irreversible
paraplegia and other physical and psychological trauma.
The petitioners state that Mr. Heredia Viveiros was an aggressive
and violent person, and that he would assault his wife and three daughters
during his marriage. According
to the victim, the situation became unbearable but she was too afraid
to take steps to obtain a separation.
They maintain that the husband tried to cover up the attack by
reporting it as an attempted robbery and the work of thieves who had fled.
Two weeks after Mrs. Fernandes returned from the hospital and was
recovering from the attempt on her life on May 29, 1983, Mr. Heredia Viveiros
again attempted to kill her by allegedly trying to electrocute her while
she was bathing. At that
point, she decided to seek a legal separation from him.
They maintain that Mr. Viveiros acted with premeditation, since
the week before the attack he had tried to convince his wife to make him
the beneficiary of a life insurance policy, and five days before attacking
her, he tried to force her to sign a document for the sale of her car
that provided no indication of the name of the purchaser.
They state that Mrs. Fernandes learned subsequently that Mr. Viveiros
had a criminal record, that he was bigamous, and that he had a child in
Colombia, information that he had concealed from her.
add that because of the resulting paraplegia, the victim had to undergo
extensive physical therapy, and, because of her loss of independence,
required constant assistance from nurses in order to move around.
The ongoing need for medication and physical therapy is expensive
and Mrs. Maria da Penha receives no financial assistance from her ex-husband
to cover her expenses. Also,
he is not paying the alimony stipulated in the separation order.
petitioners maintain that during the judicial investigation, which was
launched a few days after the June 6, 1983 assault, statements were taken
establishing that Mr. Heredia Viveiros was responsible for the assault,
and that despite this, he maintained that it was the work of thieves who
were trying to enter their home.
During the judicial proceedings, evidence was presented demonstrating
that Mr. Heredia Viveiros intended to kill her, and a rifle owned by him
was found in the house, contradicting his claim that he did not own any
firearms. Subsequent analyses
indicated that this was the weapon used in the assault.
Based on all of the above, the Office of the Public Prosecutor
filed charges against Mr. Heredia Viveiros on September 28, 1984, leading
to public criminal proceedings in the First District Court of Fortaleza,
in Ceara State.
petitioners indicate that despite the clear nature of the charges and
preponderance of the evidence,
the case languished
for eight years before the jury found Mr. Viveiros guilty on May 4, 1991,
sentencing him to 15 years in prison for assault and attempted murder,
which was reduced to ten years because he had no prior convictions.
state that on that same day, that is, May 4, 1991, the defense filed an
appeal against the decision handed down by the Jury.
According to Article 479 of the Brazilian Code of Criminal Procedure,
this appeal was time-barred, since it could only be filed during rather
than after the proceedings, a matter that has been borne out repeatedly
by Brazilian case law and, in the case at hand, by the Office of the Public
three years went by. On May
4, 1994, the Appeal Court ruled on the appeal. In that decision, it accepted
the time-barred appeal, and, using as a basis the argument of the defense
that the formulation of questions to the jury was flawed, threw out its
They allege that at the same time, other legal action was being
taken to appeal the indictment [pronuncia] (first judicial decision by means of which the judge identifies
signs pointing to a perpetrator that warrant a trial by jury).
This appeal was also time-barred and the judge handed down a ruling
to that effect. That decision
was also appealed in the Ceará State court, which agreed to hear the appeal
and issued an unfavorable ruling, upholding the indictment on April 3,
1995, maintaining once more that there was sufficient evidence pointing
to a perpetrator.
the petition providing an account of legal ineptitude and delays, it is
further stated that two years after the guilty sentence of the first jury
was thrown out, a second trial by jury took place on March 15, 1996, in
which Mr. Viveiros was condemned to ten years and six months in prison.
petitioners claim that the Court again agreed to hear a second appeal
filed by the defense, in which it was maintained that the accused was
convicted without consideration being given to the evidence contained
in the court file. Since
April 22, 1997, a decision has been pending in the second instance appeal
to the Ceará State Court. As
of the date of submission of the petition to the Commission, no decision
had been handed down regarding the appeal.
petitioners maintain that as of the date of the petition, the Brazilian
justice system had dragged its feet for more than 15 years without handing
down a final ruling against the ex-husband of Mrs. Fernandes, who has
been free during that entire period, despite the serious nature of the
charges, the mountain of evidence against him, and the serious nature
of the crime committed against Mrs. Fernandes.
The judicial system of Ceará and the Brazilian State have thus
been ineffective, as seen in their failure to conduct proceedings in a
prompt and efficient manner, thereby creating a great risk of impunity,
since punishment in this case will be barred by the statute of limitations
twenty years after the occurrence of these events, a date that is approaching.
They maintain that the primary aim of the Brazilian State ought
to have been to ensure compensation for the suffering of Maria da Penha,
by guaranteeing her a fair trial within a reasonable time period.
They maintain that this complaint does not represent an isolated
situation in Brazil; rather, it is an example of a pattern of impunity
in cases of domestic violence against women in Brazil, since the majority
of complaints filed do not lead to criminal prosecution and in the few
cases where they do, the perpetrators are convicted in only a small number
of cases. We note the comments
of this Commission in its report on Brazil:
crimes which fall within the heading of violence against women constitute
human rights violations under the American Convention, as well as under
the more specific terms of the Convention of Belém do Pará. When committed
by state agents, the use of violence against the physical and/or mental
integrity of an individual gives rise to the direct responsibility of
the State. Additionally, the State has an obligation under Article 1(1)
of the American Convention and Article 7.b of the Convention of Belém
do Pará to exercise due diligence to prevent human rights violations.
This means that, even where conduct may not initially be directly imputable
to a state (for example, because the actor is unidentified or not a state
agent), a violative act may lead to state responsibility "not because
of the act itself, but because of the lack of due diligence to prevent
the violation or respond to it as the Convention requires.
allege that the State has not taken effective measures to prevent and
punish, from a legal standpoint, domestic violence in Brazil, despite
its international obligation to prevent and sanction this violence.
They also note that statistics on homicide and sexual violence
against women show that in most instances, these acts are perpetrated
by their companions or persons whom they know.
maintain that the State of Brazil should take preventive action, in accordance
with its international commitments, to reduce the incidence of domestic
violence, and to investigate, prosecute, and punish the aggressors within
a reasonable time period, in compliance with its obligations assumed internationally
to protect human rights, something that it has failed to do.
In the case of Mrs. Fernandes, the primary aim of action by the
Brazilian Government should have been to ensure compensation for the wrongs
suffered and the guarantee of fair proceedings against the aggressor within
a reasonable time period.
their view, it has been demonstrated that domestic resources have not
been effective in providing redress for the human rights violations suffered
by Maria da Penha Maia Fernandes, and this situation is further aggravated
by the fact that the delay on the part of the Brazilian justice system
in handing down a final decision may lead, in 2002, to the barring of
the punishment of the offense by the statute of limitations, inasmuch
as 20 years would have elapsed since its commission, thereby preventing
the State from exercising jus punendi
and the accused from being held accountable for the crime committed.
This inaction of the State is also leading to the inability on
the part of the victim to obtain appropriate civil reparations.
the petitioners are seeking application of Article 42 of the Regulations
of the Commission so that the acts alleged in the petition may be presumed
to be true, since the State has failed to respond, despite the fact that
more than 250 days have elapsed since the forwarding of the petition to
The Brazilian State has not provided the Commission with a response
regarding the admissibility or the merits of the petition, despite the
requests of the Commission to the State on October 19, 1998, August 4,
1999, and August 7, 2000.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
Competence of the Commission
The petitioners maintain that the State has violated the rights
of the victims pursuant to Articles 1(1), 8, 24 (in relation to Articles
II and XVIII of the American Declaration), and Article 25 of the American
Convention (ratified by Brazil on November 25, 1992), and Articles 3,
4, 5, and 7 of the Convention of Belém do Pará (ratified on November 27,
1995), as a result of the events that occurred from May 29, 1983, on an
ongoing basis, to the present. They
maintain that the lack of effective action and the tolerant attitude of
the State continued after the entry into force of these two inter-American
In the view of the Commission, it has ratione
materiae, ratione loci, and ratione temporis
competence since the petition pertains to rights originally protected
by the American Declaration on the Rights and Duties of Man; and by the
American Convention and the Convention of Belém do Pará when they became
binding with respect to the Federative Republic of Brazil.
Despite the fact that the original assault occurred in 1983, while
the American Declaration was in effect, the Commission holds the view,
with regard to the alleged failure to guarantee due process that, inasmuch
as it is an ongoing violation, it would also be covered under the American
Convention and the Convention of Belém do Pará, which took effect later
on, since the alleged tolerant attitude of the State constituted an ongoing
denial of justice, to the detriment of Mrs. Fernandes, which could make
it impossible to convict the perpetrator and compensate the victim.
Consequently, the State allegedly tolerated a situation of impunity
and defenselessness, the effects of which were felt even after the date
on which Brazil acceded to the American Convention and the Convention
of Belém do Pará.
The Commission has general competence with respect to application
of the Inter-American Convention on the Prevention, Punishment, and Eradication
of Violence against Women (Convention of Belém do Pará or CMV), since
it is an inter-American human rights instrument, and because of the competence
assigned to it specifically by States in Article 12 of the Convention,
Any person or group of persons, or any non-governmental 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.
With respect to ratione personae competence, the petition was filed jointly by Mrs.
Maria da Penha Maia Fernandes, the Center for Justice and International
Law (CEJIL), and the Latin American and Caribbean Committee for the Defense
of Womens Rights (CLADEM), all of whom have legal authority to file
a petition with the Commission pursuant to Article 44 of the American
Convention. In addition,
insofar as the State is concerned, Article 28 of the American Convention
states that when a federative State is involved, as is the case with Brazil,
the national Government is answerable in the international sphere for
its own acts and for those taken by the agents of the entities that compose
Requirement for admissibility of a petition
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention states that domestic remedies
must be exhausted if a petition is to be considered admissible by the
Commission. However, Article
46(2)(c) also states that where there has been unwarranted delay in obtaining
a decision in the domestic sphere, that provision shall not apply.
As the Inter-American Court has stated, this is a rule which, when
cited, may be explicitly or implicitly waived by the State, and, to be
timely, must be invoked during the initial stages of proceedings, failing
which the State in question will be considered to have tacitly waived
its right in this regard.
The Brazilian State has not responded to numerous communications
forwarded with this petition; consequently, it has not raised this objection.
It is the view of the Commission in this case that the silence
of the State constitutes tacit waiver of the right to invoke this requirement,
and, for this reason, the Commission is not required to consider fulfillment
thereof later on.
Furthermore, the Commission considers it necessary to point to
the uncontested fact that after 15 years, the Brazilian justice system
has not handed down a final ruling in this case, and, since 1997, a decision
has been pending at the second instance level of appeal in the Ceará State
Court. The Commission also
thinks that there has been an unwarranted delay in the processing of the
complaint, which is exacerbated by the fact that this delay can lead to
barring of the offense by the statute of limitations and, as a result,
definitive impunity of the perpetrator and the inability of the victim
to receive compensation. Consequently,
the exception provided for in Article 46(2)(c) of the Convention can also
Time period for submission
In accordance with Article 46(1)(b) of the American Convention,
acceptance of a petition is subject to the submission thereof in a timely
manner, within six months of the date of notification of the petitioner
of the final ruling in the domestic sphere.
Since there has not been a final ruling, the Commission holds the
view that the petition was submitted within a reasonable time frame, based
on analysis of the information submitted by the petitioners, and that
the exception with regard to the six-month period set forth in Article
46(2)(c) and Article 37(2) (c) of the Regulations of the Commission is
applicable. The Commission
notes that it holds the same view regarding its competence with respect
to the Convention of Belém do Pará, as stipulated in the final part of
Article 12 thereof.
Duplication of proceedings
With regard to the duplication of proceedings, it does not seem
that this case has been referred to another entity and the State has not
made any claim to that effect. Consequently,
the Commission considers the petition admissible pursuant to Article 46(c)
and 47(d) of the American Convention.
Conclusions related to competence and admissibility
In light of the foregoing, the Commission considers itself
competent to make a decision on the case, and holds the view that this
petition fulfills the requirements of admissibility set forth in the American
Convention on Human Rights and the Convention of Belém do Pará.
ANALYSIS OF THE MERITS OF THE CASE
The silence of the State with respect to the case outlined in this
petition is at odds with its obligation assumed upon ratification of the
American Convention, pertaining to the authority of the Commission "to
act on petitions and other communications, pursuant to the provisions
of Articles 44 to 51 of the Convention."
The Commission has analyzed the case on the basis of the documents
provided by the petitioners and other materials obtained, taking into
account Article 42 of its Regulations.
The documents reviewed include:
The book published by the victim entitled: "Sobreviví Posso
The police station report on robberies and thefts, with respect
to its investigation.
The medical reports on the treatment required by the victim, Maria
Newspaper articles on the case and on domestic violence against
women in general in Brazil.
The complaint against Heredia Viveiros filed by the Office of the
The report filed by the Technical Police Institute and the Police
Station on robberies and thefts of October 8, 1983, both of which deal
with the crime scene and discovery of a weapon.
The statements of the domestic employees of January 5, 1984.
The request for background information on Marco Antonio Heredia
Viveiros of February 9, 1984.
The report on the state of health of the victim of February 10,
The indictment declared as a result of the complaint by the First
Division Judge, dated October 31, 1986.
The conviction by a jury of May 4, 1991.
The arguments of the Office of the Attorney General seeking denial
of the appeal on December 12, 1991.
The overturning by the State Court of the conviction by the original
jury on May 4, 1994.
The decision by the State Court of April 3, 1995, agreeing to hear
the appeal against the indictment decision, but refusing to grant it and
ordering the accused to a new trial by jury.
The decision of March 15, 1996 of the second jury convicting the
In the view of the Commission, an analysis of all the evidence
available does not lead to conclusions that are different from those presented
below, with respect to the matters analyzed.
The Commission will analyze first the right to justice in accordance
with the Declaration and the American Convention, and then complete the
analysis by applying the Convention of Belém do Pará.
Right to Justice (Article XVIII of the Declaration); and to a Fair
Trial (Article 8) and Judicial Protection (Article 25), in relation to
the Obligation to Respect and Guarantee Rights (Article 1(1) of the Convention
Articles XVIII of the Declaration and 8 and 25 of the American
Convention on Human Rights stipulate that all persons are entitled to
access to judicial remedies and to be heard by a competent authority or
court when they think that their rights have been violated, which is reaffirmed
in Article XVIII (right to justice) of the Declaration, all in relation
to the obligation set forth in Article 1(1) of the Convention.
Article 25(1) of the Convention states:
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.
More than 17 years have elapsed since the launching of the investigation
into the attack on the victim Maria da Penha Maia Fernandes and to date,
based on the information received, the case against the accused remains
open, a final ruling has not been handed down, and remedies have not been
provided for the consequences of the attempted murderer of Mrs. Fernandes./
The Inter-American Court of Human Rights has stated that the term
"reasonable time" established in Article 8(1) of the Convention
is not a concept that can be defined easily and has referred to the decisions
of the European Court of Human Rights for guidance in this regard.
These decisions state that the following elements must be evaluated
in determining whether the time period within which proceedings take place
is reasonable: the complexity of the case, the procedural activity of the
interested party, and the conduct of the judicial authorities.
that regard, the determination of the meaning of the term "within
a reasonable time" must be made taking into account the specific
facts surrounding each case. In
this case, the Commission took into account the claims of the petitioners
and the silence of the State.
The Commission concludes that the police investigation completed
in 1984 provided clear and decisive evidence for concluding the trial
and that the proceedings were delayed time and time again by long waits
for decisions, acceptance of appeals that were time-barred, and unwarranted
delays. Moreover, in the
view of the Commission, the victim/petitioner in this case has fulfilled
the requirement related to procedural activity with respect to the Brazilian
courts, which is being handled by the Office of the Public Prosecutor
and the pertinent courts, with which the victim/complainant has cooperated
at all times. In the view
of the Commission therefore, the characteristics of the case, the personal
situation of persons involved in the proceedings, the level of complexity,
and the procedural action of the interested party cannot explain the unwarranted
delay in the administration of justice in this case.
Eight years elapsed between the time that Mrs. Fernandes was the
victim of attempted murder in 1983, allegedly by her then husband, and
the launching of the appropriate investigations, given the fact that the
first trial of the accused did not take place until 1991. The defendants
filed a time-barred appeal that was accepted despite its procedural irregularity
and, after more than three years, the court decided to declare the proceedings
and conviction null and void.
The new proceedings were delayed by a special appeal against the
1985 indictment (an appeal that was also alleged to be time-barred), and
a decision was handed down recently, after a long delay, on April 3, 1995.
The Ceará State Court upheld, ten years later, the 1985 decision
of the court that there were signs pointing to commission of the crime
by the accused. One year later, on March 15, 1996, another jury condemned Mr.
Viveiros to ten years, six months in prison, that is, five years after
a ruling was first handed down with respect to this case. Finally, proceedings have not yet ended inasmuch as an appeal
against this conviction has been pending since April 22, 1997.
In that regard, the Inter-American Commission notes that the judicial
delay and long wait for decisions on appeals reveal conduct on the part
of the judicial authorities that violates the right to the prompt and
effective remedies provided for in the Declaration and the Convention.
Throughout these 17-year proceedings, the individual accused of
attempting to kill his wife on two occasions has been and continues to
As the Inter-American Court of Human Rights has stated:
is decisive is whether a violation of the rights recognized by the Convention
has occurred with the support or the acquiescence of the government, or
whether the State has allowed the act to take place without taking measures
to prevent it or to punish those responsible. Thus, the Court's task is
to determine whether the violation is the result of a State's failure
to fulfill its duty to respect and guarantee those rights, as required
by Article 1(1) of the Convention.
the Court has stated the following:
State is obligated to investigate every situation involving a violation
of the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim's full enjoyment of such rights is not restored
as soon as possible, the State has failed to comply with its duty to ensure
the free and full exercise of those rights to the persons within its jurisdiction.
The same is true when the State allows private persons or groups
to act freely and with impunity to the detriment of the rights recognized
by the Convention.
With regard to the obligations of the State in situations where
action has not been taken to guarantee the victim the ability to exercise
his rights, the Inter-American Court has stated the following:
second obligation of the States Parties is to "ensure" the free
and full exercise of the rights recognized by the Convention to every
person subject to its jurisdiction. This 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
and, moreover, if possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation.
In this case, the Brazilian courts have failed to hand down a final
ruling after seventeen years and this delay is leading to the distinct
possibility of definitive impunity because of barring of the offense by
the statute of limitations, thereby precluding receipt of compensation
which, in any event, would be very late. The Commission holds the view that the domestic judicial decisions
in this case reveal inefficiency, negligence, and failure to act on the
part of the Brazilian judicial authorities and unjustified delay in the
prosecution of the accused. These
decisions are standing in the way of punishment of the accused and are
raising the specter of impunity and failure to compensate the victim as
a result of barring of the offense by the statute of limitations. They demonstrate that the State has not been capable of organizing
its entities in a manner that guarantees those rights. As a whole, this
situation represents a separate violation of Articles 8 and 25 of the
American Convention on Human Rights in relation to Article 1(1) thereof
and the corresponding Articles of the Declaration.
B. Equality before the Law (Article
24 of the Convention) and Articles II and XVIII of the Declaration
The petitioners also allege violation of Article 24 of the American
Convention in relation to the right to equality before the law and the
right to justice enshrined in the American Declaration on the Rights and
Duties of Man (Articles II and XVIII).
In that regard, the Inter-American Commission notes that it has
followed with special interest developments related to respect for the
rights of women, particularly those related to domestic violence.
The Commission has received information on the high number of domestic
attacks of women in Brazil. In
Ceará alone (the place where the events related to this case took place),
there were 1,183 death threats reported to special police stations handling
women's affairs in 1993, out of a total of 4,755 complaints.
Compared to men, women are the victims of domestic violence in
disproportionate numbers. A
study done by the National Movement for Human Rights in Brazil compares
the incidence of domestic violence against women and men and shows that
in terms of murders, women are 30 times more likely to be killed by their
husbands than husbands by their wives.
In its special report on Brazil in 1997, the Commission found that
there was clear discrimination against women who were attacked, resulting
from the inefficiency of the Brazilian judicial system and inadequate
application of national and international rules, including those arising
from the case law of the Brazilian Supreme Court.
In its 1997 Report on the Situation of Human Rights, the Commission
even where these specialized stations exist, it remains frequently the
case that complaints are not fully investigated or prosecuted. In some
cases, resource limitations hinder efforts to respond to these crimes.
In other cases, women refrain from pressing formal charges. In practice,
legal and other limitations often expose women to situations where they
feel constrained to act. By law, women have to register their complaint
at a police station, and explain what happened so the delegate can write
up an "incident report." Delegates who have not received sufficient
training may be unable to provide the required services, and some reportedly
continue to respond to victims in ways that make them feel shame and humiliation.
For certain crimes, such as rape, victims must present themselves at an
Institute of Forensic Medicine (Instituto Médico Legal), which
has the exclusive competence to perform the examinations required by law
to process a charge. Some women are not aware of this requirement, or
do not have access to such a facility in the timely manner necessary to
obtain the required evidence. These Institutes tend to be located in urban
areas, and, where available, are often understaffed. Moreover, even when
women take the steps necessary to denounce the use of criminal violence,
there is no guarantee that the crime will be investigated and prosecuted.
Although the Supreme Court of Brazil struck down the archaic "honor defense" as a justification for wife-killing in 1991, many courts remain reluctant to prosecute and punish the perpetrators of domestic violence. In some areas of the country, use of the "honor defense" persists, and in some areas the conduct of the victim continues to be a focal point within the judicial process to prosecute a sexual crime. Rather than focusing on the existence of the legal elements of the crime in question, the practices of some defense lawyerssustained in turn by some courtshave the effect of requiring the victim to demonstrate the sanctity of her reputation and her moral blamelessness in order to exercise the remedies legally required to be available to her. The initiatives taken by the public and private sector to confront violence against women have begun to combat the silence which customarily has concealed it, but have yet to surmount the social, legal and other barriers which contribute to the impunity in which these crimes too often languish.
That report also makes reference to various studies that demonstrate
that in cases where statistics have been kept, they have shown that only
one percent of the offenses reported to specialized stations are actually
de Mulheres de Sao Paulo, A Violencia Contra a Mulher e a Impunidade:
Una Questão Política (1995).
In 1994, of 86,815 complaints filed by women who were assaulted
in the home, only 24,103 led to police investigations, according to that
Other reports indicate that 70% of the criminal complaints pertaining
to domestic violence are put on hold without any conclusion being reached.
Only 2% of the criminal complaints for domestic violence against
women lead to conviction of the aggressor.
(Report of the San Pablo Catholic University, 1998).
In this analysis examining the pattern shown by the State in responding
to this kind of violation, the Commission also notes that positive measures
have been taken in the legislative, judicial, and administrative spheres./
The Commission points to three initiatives that are directly related
to the situation seen in this case: (1) the establishment of special police
stations to handle reports on violence against women; (2) the establishment
of shelters for battered women; and (3) the 1991 decision of the Supreme
Court to strike down the archaic concept of "honor defense "
as a justification for crimes against wives.
These positive and other similar initiatives have been implemented
on a limited basis in relation to the scope and urgency of the problem,
as indicated earlier. In
this case, which stands as a symbol, these initiatives have not had any
Article 7 of the Convention of Belém do Pará
On November 27, 1995, Brazil deposited its ratification of the
Convention of Belém do Pará, the inter-American instrument by means of
which American States acknowledge the extent of this problem, establish
guidelines to be followed, make commitments to address it, and establish
the possibility for any individual or organization to file petitions and
take action on a matter before the Inter-American Commission on Human
Rights and through its proceedings.
The petitioners are seeking a finding of violation by the State
of Articles 3, 4, 5, and 7 of this Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women, and are alleging
that this case must be analyzed in a context of gender-based discrimination
by Brazilian State organs, which serves to reinforce the systematic pattern
of violence against women and impunity in Brazil.
As indicated earlier, the Commission has ratione
materiae and ratione temporis
competence to hear the case pursuant to the provisions of the Convention
of Belém do Pará with respect to acts that occurred subsequent to ratification
thereof by Brazil, that is, the alleged ongoing violation of the right
to effective legal procedures, and, consequently, the tolerance that this
would imply of violence against women.
The Convention of Belém do Pará is an essential instrument that
reflects the great effort made to identify specific measures to protect
the right of women to a life free of aggression and violence, both outside
and within the family circle. The CVM provides the following definition of violence against
against women shall be understood to include physical, sexual, and psychological
that occurs within the family or domestic unit or within any other
interpersonal relationship, whether or not the perpetrator shares or has
shared the same residence with the woman, including, among others, rape,
battery and sexual abuse;
that occurs in the community and is perpetrated by any person,
including, among others, rape, sexual abuse, torture, trafficking in persons,
forced prostitution, kidnapping and sexual harassment in the workplace,
as well as in educational institutions, health facilities or any other
that is perpetrated or condoned by the state or its agents regardless
of where it occurs.
Within the scope of application of the CMV, reference is made to
situations defined by two conditions: first, violence against women as
described in sections (a) and (b); and, second, violence perpetrated or
condoned by the State. The
CMV protects, inter alia, the
following rights of women when they have been violated by acts of violence:
the right to a life free of violence (Article 3), the right to have
her life, her physical, mental, and moral integrity, her personal safety,
and personal dignity respected, to equal protection before and of the
law; and to simple and prompt recourse to a competent court for protection
against acts that violate her rights (Articles 4 (a), (b), (c), (d), (e),
(f), and (g), and the resulting duty of the State set forth in Article
7 of that instrument. Article
7 of the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women states:
DUTIES OF THE STATES
States Parties condemn all forms of violence against women and agree to
pursue, by all appropriate means and without delay, policies to prevent,
punish and eradicate such violence and undertake to:
refrain from engaging in any act or practice of violence against
women and to ensure that their authorities, officials, personnel, agents,
and institutions act in conformity with this obligation;
apply due diligence to prevent, investigate and impose penalties
for violence against women;
include in their domestic legislation penal, civil, administrative
and any other type of provisions that may be needed to prevent, punish
and eradicate violence against women and to adopt appropriate administrative
measures where necessary;
adopt legal measures to require the perpetrator to refrain from
harassing, intimidating or threatening the woman or using any method that
harms or endangers her life or integrity, or damages her property;
take all appropriate measures, including legislative measures,
to amend or repeal existing laws and regulations or to modify legal or
customary practices which sustain the persistence and tolerance of violence
establish fair and effective legal procedures for women who have
been subjected to violence which include, among others, protective measures,
a timely hearing and effective access to such procedures;
establish the necessary legal and administrative mechanisms to
ensure that women subjected to violence have effective access to restitution,
reparations or other just and effective remedies; and
adopt such legislative or other measures as may be necessary to
give effect to this Convention.
The impunity that the ex-husband of Mrs. Fernandes has enjoyed
and continues to enjoy is at odds with the international commitment voluntarily
assumed by the State when it ratified the Convention of Belém do Pará.
The failure to prosecute and convict the perpetrator under these
circumstances is an indication that the State condones the violence suffered
by Maria da Penha, and this failure by the Brazilian courts to take action
is exacerbating the direct consequences of the aggression by her ex-husband.
Furthermore, as has been demonstrated earlier, that tolerance by
the State organs is not limited to this case; rather, it is a pattern.
The condoning of this situation by the entire system only serves
to perpetuate the psychological, social, and historical roots and factors
that sustain and encourage violence against women.
Given the fact that the violence suffered by Maria da Penha is
part of a general pattern of negligence and lack of effective action by
the State in prosecuting and convicting aggressors, it is the view of
the Commission that this case involves not only failure to fulfill the
obligation with respect to prosecute and convict, but also the obligation
to prevent these degrading practices.
That general and discriminatory judicial ineffectiveness also creates
a climate that is conducive to domestic violence, since society sees no
evidence of willingness by the State, as the representative of the society,
to take effective action to sanction such acts.
The Commission must consider, in relation to Articles 7(c) and
(h), the measures taken by the State to eliminate the condoning of domestic
violence. The Commission
notes the positive measures taken by the current administration towards
that objective, in particular the establishment of special police stations,
shelters for battered women, and others.
However, in this case, which represents the tip of the iceberg,
ineffective judicial action, impunity, and the inability of victims
to obtain compensation provide an example of the lack of commitment to
take appropriate action to address domestic violence.
Article 7 of the Convention of Belém do Pará seems to represent
a list of commitments that the Brazilian State has failed to meet in such
In light of the foregoing, the Commission holds the view that this
case meets the conditions for domestic violence and tolerance on the part
of the State, defined in the Convention of Belém do Pará, and that the
State is liable for failing to perform its duties set forth in Articles
7(b), (d), (e), (f), and (g) of that Convention in relation to rights
protected therein, among them, the right to a life free of violence (Article
3), the right of a woman to have her life, her physical, mental, and moral
integrity, her personal safety, and personal dignity respected, to equal
protection before and of the law, and to simple and prompt recourse to
a competent court for protection against acts that violate her rights
(Articles 4(a), (b), (c), (d), (e), (f), and (g).
PROCEEDINGS SUBSEQUENT TO REPORT Nº 105/00
The Commission approved Report Nº 105/00 pertaining to this case
on October 19, 2000, at its 108th session.
This report was transmitted to the State on November 1, 2000, and
it was granted a period of two months to implement the recommendations
made. The Commission informed
the petitioners of the approval of a report in accordance with Article
50 of the Convention. Inasmuch
as the period granted has expired and the Commission has not received
a response from the State regarding these recommendations, the IACHR adopts
the view that these recommendations have not been implemented.
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS DECIDES THAT
Inter-American Commission on Human Rights reiterates to the State the
It is competent to hear this case and that the petition is admissible
pursuant to Articles 46(2)(c) and 47 of the American Convention and in
accordance with Article 12 of the Convention of Belém do Pará, with respect
to violation of the rights and duties established in Articles 1(1) (Obligation
to Respect Rights); 8 (a Fair Trial); 24 (Equal Protection); and 25 (Judicial
Protection) of the American Convention, in relation to Articles II and
XVIII of the American Declaration (the Declaration); as well as Article
7 of the Convention of Belém do Pará.
Based on the facts, which have not been disputed, and the foregoing
analysis, the Federative Republic of Brazil is responsible for violation
of the right to a fair trial and judicial protection, guaranteed in Articles
8 and 25 of the American Convention, in accordance with the general obligation
to respect and guarantee rights set forth in Article 1(1) of this instrument,
because of the unwarranted delay and negligent processing of this case
of domestic violence in Brazil.
The State has adopted a number of measures intended to reduce the
scope of domestic violence and tolerance by the State thereof, although
these measures have not yet had a significant impact on the pattern of
State tolerance of violence against women, in particular as a result of
ineffective police and judicial action in Brazil.
The State has violated the rights of Mrs. Fernandes and failed
to carry out its duty assumed under Article 7 of the Convention of Belém
do Pará and Articles 8 and 25 of the American Convention; both in relation
to Article 1(1) of the Convention, as a result of its own failure to act
and tolerance of the violence inflicted.
Based on the foregoing analysis and conclusions, the Inter-American
Commission on Human Rights recommends once more that the Brazilian State:
Complete, rapidly and effectively, criminal proceedings against
the person responsible for the assault and attempted murder of Mrs. Maria
da Penha Fernandes Maia.
In addition, conduct a serious, impartial, and exhaustive investigation
to determine responsibility for the irregularities or unwarranted delays
that prevented rapid and effective prosecution of the perpetrator, and
implement the appropriate administrative, legislative, and judicial measures.
Adopt, without prejudice to possible civil proceedings against
the perpetrator, the measures necessary for the State to grant the victim
appropriate symbolic and actual compensation for the violence established
herein, in particular for its failure to provide rapid and effective remedies,
for the impunity that has surrounded the case for more than 15 years,
and for making it impossible, as a result of that delay, to institute
timely proceedings for redress and compensation in the civil sphere.
Continue and expand the reform process that will put an end to
the condoning by the State of domestic violence against women in Brazil
and discrimination in the handling thereof.
In particular, the Commission recommends:
Measures to train and raise the awareness of officials of the judiciary
and specialized police so that they may understand the importance of not
condoning domestic violence.
The simplification of criminal judicial proceedings so that the
time taken for proceedings can be reduced, without affecting the rights
and guarantees related to due process.
The establishment of mechanisms that serve as alternatives to judicial
mechanisms, which resolve domestic conflict in a prompt and effective
manner and create awareness regarding its serious nature and associated
An increase in the number of special police stations to address
the rights of women and to provide them with the special resources needed
for the effective processing and investigation of all complaints related
to domestic violence, as well as resources and assistance from the Office
of the Public Prosecutor in preparing their judicial reports.
The inclusion in teaching curriculums of units aimed at providing
an understanding of the importance of respecting women and their rights
recognized in the Convention of Belém do Pará, as well as the handling
of domestic conflict.
f. The provision of information to the
Inter-American Commission on Human Rights within sixty days of transmission
of this report to the State, and of a report on steps taken to implement
these recommendations, for the purposes set forth in Article 51 (1) of
the American Convention.
Commission transmitted the report adopted pursuant to Article 51 of the
American Convention to the State and to the petitioner on March 13, 2001,
and gave the State one month to submit information on the measures adopted
to comply with the Commissions 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 conclusions and recommendations
of paragraphs 1 and 2, 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.
Approved by the Inter-American Commission on Human Rights on April
16, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman;
Marta Altolaguirre, Second Vice-Chair; Robert K.Goldman, Peter Laurie,
and Julio Prado Vallejo Commissioners.
Commission member Hélio Bicudo, a Brazilian, did not participate in
the discussions or voting related to this case, in compliance with
Article 19(2)(a) of the Regulations of the Commission.
According to the petition and documents enclosed by the petitioners,
Mr. Viveiros shot his wife while she was asleep.
Fearful and in order to avoid being shot a second time, Mrs.
Fernandes lay prostrate in the bed pretending to be dead. However, when she was admitted to the hospital she was in shock,
with tetraplegia resulting from injury to her third and fourth vertebrae,
in addition to other injuries that became apparent later on.
Correspondence from the petitioners of August 13, 1998, received
by the IACHR Secretariat on August 20 of that year, page 2; and Fernandes
(Maria da Penha Maida). Sobrevivi Posso Contar, Fortaleza, 1994, pages 28-30 (Enclosure 1
of the petition).
According to statements provided by the victim, the second weekend
after she returned from Brasilia, Mr. Viveiros asked her whether she
wanted to take a bath and when she went in the shower, she felt an
electric shock that came from the water.
Mrs. Fernandes panicked and tried to get out of the shower,
but her husband told her that a small electrical shock was not going
to kill her. She stated
that at that moment she understood why, from the time of her return,
Mr. Viveiros showered only in his children's bathroom.
Correspondence of the petitioners dated August 13, 1998, page
5, and enclosure 2 of that document.
The petition states that "a great deal of evidence was collected
showing that the former husband of Maria da Penha intended to kill
her and pass it off as a robbery of his home."
They include a copy of the decision of the Technical Police
and the sworn statements of the maids who provided a detailed description
of events that point to the guilt of Mr. Heredia Viveiros.
Among the elements described is the defendant's denial; that
he had s shotgun (espingarda), which was later proved to be
in his posession; the constant physical attacks on his wife; and serious
contradictions in his version of the events.
This same court noted the overwhelming guilt of the accused and his
dangerous personality, as revealed by the crime committed, and its
serious consequences, when he was convicted to 15 years in prison
in the first trial. FERNANDES
(Maria da Penha Maia), Sobrevivi
Posso Contar, Fortaleza, 1994, page 74.
Report on the Situation of Human Rights in Brazil, 1997, Chapter VIII.
The petitioners state that this situation has also been recognized
by the United Nations and have submitted newspaper articles with their
petition. They note that
70% of the cases of violence against women occur in their homes (Human
Rights Watch. Report
of Brazil, 1991, page 351), and that a police officer in Río de Janeiro
stated that of the more than 2,000 cases of rape or beatings reported
at his police station, he did not know of any that resulted in the
punishment of the perpetrator (HRW Report, page 367).
In this regard, the Commission has abundant case law.
See IACHR Case 11.516, Ovelario Tames, Annual Report 1998,
(Brazil) para. 26 and 27; Case 11.405 Newton Coutinho Mendes et
al., Annual Report 1998 (Brazil); Case 11.598 Alonso Eugenio da
Silva, Annual Report 1998 (Brazil), para. 19 and 20; Case 11.287 João
Canuto de Oliveira, Annual Report 1997 (Brazil).
Inter-American Court of Human Rights has addressed the concept of
the ongoing violation of rights on many occasions, particularly in
the context of forced disappearances, and in this regard, it has stated
disappearance implies the violation of various human rights recognized
in international human rights treaties, including the American Convention,
and that the effects of such infringements -even though some may have
been completed, as in the instant case- may be prolonged continuously
or permanently until such time as the victim's fate or whereabouts
the light of the above, as Mr. Blake's fate or whereabouts were not
known to his family until June 14, 1992, that is, after the date on
which Guatemala accepted the contentious jurisdiction of this Court,
the preliminary objection raised by the Government must be deemed
to be without merit insofar as it relates to effects and actions subsequent
to its acceptance. The Court is therefore competent to examine the
possible violations which the Commission imputes to the Government
in connection with those effects and actions.
Court, Blake case, Judgment on Preliminary Objections of July 2, 1996,
paras. 39 and 40. In
that regard, see also: Inter-American Court, Velásquez Rodríguez case,
Judgment of July 29, 1988, para. 155; and Godínez Cruz case, Judgment
of January 20, 1989, para. 163.
Also in the Genie Lacayo case (paragraphs 21 and 24 Excep.
Preliminaries), the Court agreed to consider violation of Articles
2, 8, 24, and 25, involving the denial of justice that started prior
to the non-retroactive acceptance of the competence of the Court but
continued after acceptance thereof.
addition, the notion of an ongoing situation has also been accepted
by the European Court of Human Rights in decisions on cases pertaining
to arrests dating back to the 1960s, and by the Human Rights Commission,
the practices of which, under the United Nations International Covenant
on Civil and Political Rights and its first Optional Protocol, from
the early 1980s, contains examples of ongoing situations that led
to events that occurred or persisted after the entry into force of
the Covenant and Protocol with respect to the State in question, and
thus violated rights enshrined in the Covenant.
Inter-American Court, Godínez Cruz case.
Judgment of June 26, 1987.
C. Nº 3. Paragraphs
90 and 91 state: "Generally recognized principles of international
law indicate, first, that this is a rule that may be waived, either
expressly or by implication, by the State having the right to invoke
it, as this Court has already recognized ( see Viviana Gallardo et
al. Judgment of November 13, 1981, Nº G 101/81. Series A, para.
26). Second, the objection asserting the non-exhaustion of domestic
remedies, to be timely, must be made at an early stage of the proceedings
by the State entitled to make it, lest a waiver of the requirement
be presumed. Third, the State claiming non-exhaustion has an obligation
to prove that domestic remedies remain to be exhausted and that they
applying the foregoing principles to this case, the Court notes that
the case file reveals that the Government did not file an objection
in a timely manner when the Commission began hearings related to the
complaint brought before it, nor did it even do so later on during
the entire period that the case was being examined by the Commission.
In this analysis, the Commission used the documents submitted by the
petitioners as the main source of information for its review, in addition
to other instruments available such as:
IACHR, Report of the Inter-American Commission on Human
Rights on the status of women in the Americas.
October 13, 1998, page 91; IACHR, Report on the Situation
of Human Rights in Brazil, September 29, 1997, page 164.
United Nations Development Programme, Human Development
Report 2000. Oxford
University Press, 2000, pages 290, as well as the different sources
of case-law of the inter-American and international system.
During almost half of that period, since September 25, 1992, this
situation has existed while the American Convention has been in effect
for Brazil. The Convention
of Belém do Pará has been in effect since November 27, 1995.
Inter-American Court of Human Rights Genie Lacayo Case, Judgment of
January 29, 1997, para. 77.
In this regard, the Commission deems it important to point out that
the Inter-American court stated that:
State controls the means to verify acts occurring within its territory.
Although the Commission has investigative powers, it can exercise
them within a State's jurisdiction only with the cooperation and resources
offered by that State. Inter-American
Court of Human Rights, Velásquez Rodríguez, Judgment of July 29, 1988,
The petitioners maintain that this appeal was inadmissible based on
Article 479 of the Code of Criminal
Procedure of Brazil.
The Commission is considering this aspect pursuant to the authority
conferred on it under Article XVIII of the American Declaration.
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, para. 173.
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, para. 176; and Inter-American Court of Human Rights,
Godínez Cruz case, Judgment of January 20, 1989, para. 187.
Inter-American Court of Human Rights, Godínez Cruz case, Judgment
of January 20, 1988, para. 175.
Maia Fernandes, Maria da Penha "Sobrevivi
Posso Contar" Fortaleza
1994, page 150; data based on information received from police stations.
As a result of joint action taken by the Government and the CNDM [National
Council for Women's Rights], the 1988 Brazilian Constitution has been
amended in a manner that reflects significant progress in women's
rights. In the context
of the National Program on Human Rights, the initiatives proposed
by the Government aimed at strengthening the rights of women include:
support for the National Council for Women's Rights and the National
Program to Prevent Violence against Women; efforts to support and
prevent sexual and domestic violence against women, to provide comprehensive
assistance to women who are at risk, and to educate the public about
discrimination and violence against women and safeguards that are
available; repeal of certain discriminatory provisions in the Penal
and Civil Code on parental authority;
support for efforts to develop gender-specific approaches in
the training of State agents and in the establishment of curriculum
guidelines at the primary and secondary education levels; and support
for statistical studies related to the status of women in the labor
sphere. The program also
recommends that the Government implement the decisions contained in
the Inter-American Convention on the Prevention, Punishment, and Eradication
of Violence against Women.
See the chapter pertaining to the rights of Brazilian women in the
1997 IACHR Special Report on the Situation of Human Rights in Brazil.