Cases 11.286 Aluísio Cavalcanti et al. 11.407 Clarival Xavier Coutri, 11.406 Celso Bonfim De Lima 11.416 Marcos Almeida Ferreira, 11.413 Delton Gomes da Mota, 11.417 Marcos de Assis Ruben, 11.412 Wanderlei Galati, and 11.415 Carlos Eduardo Gomes Ribeiro v. Brazil, Report No. 55/01, Cases 11.286 Aluísio Cavalcanti et al. 11.407 Clarival Xavier Coutri, 11.406 Celso Bonfim De Lima 11.416 Marcos Almeida Ferreira, 11.413 Delton Gomes da Mota, 11.417 Marcos de Assis Ruben, 11.412 Wanderlei Galati, and 11.415 Carlos Eduardo Gomes Ribeiro v. Brazil, Report No. 55/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 724 (2000).
REPORT Nº 55/01*
11.286 (ALUÍSIO CAVALCANTI ET AL),
(CLARIVAL XAVIER COUTRIM), 11.406 (CELSO BONFIM DE LIMA),
(MARCOS ALMEIDA FERREIRA), 11.413 (DELTON GOMES DA MOTA),
(MARCOS DE ASSIS RUBEN), 11.412 (WANDERLEI GALATI),
11.415 (CARLOS EDUARDO GOMES RIBEIRO)
From February to September 1994, the Inter-American Commission
on Human Rights (the Commission) received from the Santos
Dias Center for Human Rights of the Archdiocese of São Paulo nine
complaints against the Federative Republic of Brazil (Brazil,
the Brazilian State, or the Government of Brazil)
for violations perpetrated by state agents of the Military Police of São
Paulo state. It is alleged
in the complaints that the crimes committed constitute violations of Articles
I (right to life, liberty, security and integrity of the person), XVIII
(right to justice), and XXIV (right to petition) of the American Declaration
on the Rights and Duties of Man (the Declaration), and of
Articles 8 (right to a fair trial) and 25 (judicial protection) of the
American Convention on Human Rights (the Convention), in conjunction
with Article 1(1) of the same (obligation to ensure and respect the rights
established in the Convention).
As appears in the Admissibility Report (Report 17/98), these cases
were initially processed independently; the Commission then decided to
join them in order to draw up a single admissibility report.
The same will be done in relation to this report on the merits,
which joins cases 11.286, 11.407, 11.406, 11.416, 11.413, 11.417, 11.412,
and 11.415. In that joint admissibility report, the Commission placed itself
at the disposal of the parties to pursue a friendly settlement, and on
not receiving an affirmative response in the period set, it considered
that such a solution was not viable at that stage of the procedure.
Joint admissibility report 17/98, and reasons for combining the
In its joint admissibility report on these cases
the Commission considered that it was competent to analyze possible violations
of human rights protected by the Declaration and the Convention, in keeping
with Articles 1(2)(b) and 20 of its Statute.
It also indicated, in the same report, that the fact that Brazil
had ratified the Convention on September 25, 1992, does not exempt it
from responsibility for violations of rights that occurred prior to that
ratification that are guaranteed by the Declaration, which is binding.
It recalled in this regard recognition of the binding nature of
the Declaration by the Inter-American Court of Human Rights.
That same admissibility report set forth the legal bases for joining
the cases. It states that
Article 40 of the Commissions Regulations sets forth criteria for
separating and combining cases: (1) Any petition that states different
facts that concern more than one person, and that could constitute various
violations that are unrelated in time and place shall be separated and
processed as separate cases, provided the requirements set forth in Article
32 are met. (2) When two
petitions deal with the same facts and persons, they shall be combined
and processed in a single file.
In this respect, the Commission has interpreted Article 40 quite
broadly. The Commission has
not interpreted Article 40(1) of the Regulations as requiring that the
facts, victims, and violations presented in a petition must coincide strictly
in time and place, for them to be processed as a single case.
The Commission then clarified that it had previously processed
individual cases related to numerous victims who have alleged human rights
violations that occurred at different times and places, so long as they
argued that the violations originated in the same treatment.
From this it is inferred that the Commission may process, as a
single case, the claims of several victims who allege violations resulting
from the application of legal standards or of a scheme or practice in
which they have been subjected to similar treatment.
The Commission has not only refused to separate the processing
of those cases; it has also combined separate cases that meet those characteristics,
so as to process them in a single case.
The Commission explained in that admissibility report that the
cases presented were processed independently. The Commission considers
that the accusations contained in the complaints have similar characteristics
and refer to a single context. The
alleged violations were perpetrated by military police from the same São
Paulo state, allegedly acting illegally, against defenseless and unarmed
civilians (except for one case) and, the perpetrators have enjoyed impunity
because of the sluggishness and partiality displayed by the military justice
system in the processing and judging of these cases. The Commission decided,
for reasons of procedural economy, to combine the cases for the purpose
of preparing a single report.
Finally, in that same admissibility report the Commission considered that it had jurisdiction to hear these cases; and
that they were admissible, pursuant to the requirements established in
Articles 46 and 47 of the American Convention.
It then decided to declare the admissibility of the cases presented;
to send that admissibility report to the Government of the Federative
Republic of Brazil and the petitioners; to place itself at the disposal
of the parties for the purpose of pursuing a settlement based on respect
for the rights protected in the American Convention, and to invite the
parties to state within 30 days their position as to the possibility of
a friendly settlement; to continue to examine the merits issues; and to
publish that report in its Annual Report to the OAS.
Conclusions of this report
The Commission reaches the conclusion in this report that police
agents of the State summarily executed Aluísio Cavalcanti, Clarival Xavier
Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati;
and that state agents also gravely injured Cláudio Aparecido de Moraes,
Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes
Ribeiro, and that the State did not comply with its commitments under
Articles I and XVIII of the Declaration and Articles 8 and 25 of the Convention,
nor did it offer the proper guarantees for preventing, investigating,
and prosecuting those grave violations.
The Commission recommends that the persons responsible for the
various violations be prosecuted and punished, and that reparation be
made to the victims or their families.
ANALYSIS ON THE MERITS OF EACH CASE
Case 11.286 (Aluísio Cavalcanti
and one other person)
In February 1994, the Commission received a complaint according
to which Aluísio Cavalcanti Júnior had been killed and Cláudio Aparecido
de Moraes had been the victim of attempted homicide, both of which crimes
having occurred March 4, 1987, in the neighborhood of Jardim Camargo Velho,
in the city of São Paulo, and allegedly committed by members of the Military
Police of São Paulo state José Carvalho, Robson Bianchi, Luis Fernando
Gonçalves, Francisco Carlos Gomes Inocencio, Rubens Antonio Baldasso,
and Dirceu Bartolo.
Aluísio Cavalcanti Júnior had been accused verbally by one of the
assailant police officers of having murdered his son.
The youths were interrogated and threatened until one of them confirmed
that the other was the murderer, which is why the police decided to kill
them. Both were shot in the
head and their bodies taken to a thicket, where they were left.
Thwarting the will of the police, Cláudio Aparecido de Moraes survived
the gunshot wounds.
November 9, 1987, the military justice prosecutor indicted José Carvalho,
Robson Bianchi, Luis Fernando Gonçalves, Francisco Carlos Gomes Inocencio,
Rubens Antonio Baldasso, and Dirceu Bartolo before the Third Military
Court of the state of Sao Paulo, for the homicide of Aluísio and for the
attempted homicide of Cláudio. Sergeant
João Simplício Filho and soldier Roberto Carlos de Assis, who witnessed
the events but did not participate directly and effectively in the crimes,
were denounced for omissive conduct.
there has been no conviction of the accused to date, it is not possible
to begin a civil action for compensation.
Processing before the Commission
complaint was received by the Commission in February 1994.
From that date to April 1996, several statements were collected
from both parties verifying the status of the judicial proceedings instituted
in relation to the facts alleged.
During its 98th session, the Commission adopted admissibility report
17/98 in relation to this case, which was included in its 1997 annual
Positions of the parties
the complaint it is affirmed that the domestic remedies, apart from excessive
delays, have proven ineffective, as none of the accused was imprisoned
or convicted as of seven years after the date of the events in question.
Later, the petitioner affirmed that the proceedings has already
taken eight years, and demonstrated that certain procedural matters would
lead to the exclusion of the evidence and the need to reconstruct it,
which would result in an even greater delay in bringing to justice the
persons responsible for the attacks on Aluísio and Cláudio.
The petitioner requested not only reparation for the unjustified
death of Aluísio and for the attempted homicide of Cláudio, but also a
condemnation of the Brazilian State for not having investigated, prosecuted,
and punished the persons responsible for those crimes.
It also requested that it be declared that the Brazilian Government
had not abided by its international obligations, in breach of Articles
I, XXV, and XXVI of the American Declaration and Articles 8(1) and 25(1)
of the American Convention.
Brazilian Government argued that all the disciplinary measures had been
adopted and that the corresponding judicial proceeding was under way.
It reported that agents Francisco Carlos Gomes Inocencio and Dirceu
Bartolo had been expelled from the police force by administrative decision
of the General Commander of the Military Police of São Paulo state, and
on several occasions it provided information on the status of the respective
criminal actions. The Brazilian
State, however, did not respond to the Commissions repeated requests
for its position on the merits issues, answering the facts set forth in
Analysis by the Commission
Right to life and physical integrity
relation to the alleged violation of the right to life and physical integrity
of Aluísio Cavalcanti Júnior and Cláudio Aparecido de Moraes, the Commission
reached the conclusion that there were sufficient indicia to lead to the
conclusion that the two youths had been arbitrarily wounded by state agents.
first and most important evidence supporting this conclusion is the statement
by Cláudio Aparecido de Moraes himself.
According to his testimony, after his arbitrary detention the agents
threatened him and Aluísio on several occasions, such that they had been
subject to physical and psychological torture before being impacted by
the bullets. Cláudio even
stated that one of the police agents had left only one bullet in the revolver
and pulled the trigger twice with the gun on his head, in the style of
Russian roulette. Finally,
the victim confirmed that one of the police agents had ordered him to
lie down on the floor, put his hands between his legs, close his eyes,
and when he did so, he heard two shots and felt a blow in the chest
and his head burning, as he was grievously injured.
their statements, all the police agents involved confirmed that the youths
had been detained and taken to an uninhabited locale. They also confirmed that Lt. Carvalho clearly expressed the
desire to kill Aluísio, as he was convinced that he had killed his son.
Although none of the agents who made statements confirmed that they had
witnessed the execution, several said they had seen Carvalho move away
from the others, and return only after some shots were heard, whereupon
he was heard to have said that the youths had been judged and convicted.
important is the conclusion of the police-military inquiry and the administrative
procedures undertaken against the police agents.
In these cases, after an analysis of the evidence collected, the
veracity of the facts was confirmed and it was concluded that the prisoners
although the respective criminal proceeding has yet to conclude, there
is ample evidence that points to the materiality of the facts (the death
of Aluísio and the grave lesions to Cláudio) and these having been the
work of agents of the Military Police for São Paulo state.
Consequently, the Brazilian State is responsible for the violations
these two youths suffered, in violation of Article I of the American Declaration.
Judicial guarantees and due process of law
is found in the documents and in the information presented by the Government
and the petitioners that the judicial proceedings related to the crimes
committed against Aluísio and Cláudio were extremely slow.
drawn from the proceedings indicates that on several occasions hearings
failed to take place, and were rescheduled, since defense counsel was
not present. The evidence
obtained was voided on formalistic grounds, undercutting the effectiveness
of the process. These facts
indicate that a dilatory strategy was adopted by defense counsel, indeed
accepted by the prosecutor and the military justice system, which ended
up prejudicing the normal course of the proceedings, causing a great delay,
to the detriment of justice and of the victims rights.
the petitioners showed that the requests by the prosecutor that the proceedings
be converted into an investigative procedure were justified and requested
in the interest of the proceedings, as it was intended to produce additional
evidence to present at trial.
all this information, the Commission understands that although there are
judicial remedies to which the victims of human rights violations have
access in the case analyzed here, those remedies were neither prompt nor
effective. There was excessive
delay on the part of the State in prosecuting the accused for the violations,
and more than eight years after the fact, the persons responsible had
yet to be convicted. Accordingly,
the Brazilian State violated Articles 8 and 25 of the American Convention.
11.407 (Clarival Xavier Coutrim)
September 6, 1994, the Commission received a complaint according to which
Clarival Xavier Coutrim, 22 years old, had been killed on April 20, 1982,
in eastern zone of the city of São Paulo by bullet wounds allegedly fired
by military police agents Júlio César Passos da Silva, Nelson de Freitas
Nascimento Filho, Rodolfo Cosin Filho, Hermes Simplício da Silva, Celso
de Castilho, and Miguel Portos Neto.
victim was alleged to have been detained by the agents and then taken
to an uninhabited locale, where he was executed.
military police inquiry was opened.
There, it was concluded that although there was an indication that
the agents had committed the offense, there was also evidence that ruled
out illegal conduct, based on the consideration that they were performing
their duty and acting in legitimate self-defense.
The inquiry was archived and later re-opened upon the presentation
of new evidence, whereupon it was decided that the accused should be held
in preventive detention. A
criminal suit was brought before the 3rd Military Court of
the state of Sao Paulo.
respective action for compensation was not allowed to go forward by the
Sixth Court (6a. Vara
da Fazenda Pública)
of the state of São Paulo.
Processing before the Commission
complaint was received by the Commission in September 1994; the pertinent
parts were forwarded to the Government on November 28, 1994.
On May 25, 1995, the Government answered the Commissions
request for information. On August 10, 1995, the Commission received information
from the petitioner on the prosecution of the accused. The last statement
by the Brazilian government is dated November 15, 1995. The case was considered
admissible by the Commission, which approved publication of Admissibility
Report 17/98 during its 98th session, and its inclusion in the Annual
Report for 1997.
Position of the parties
complaint alleges that the victim was detained for no apparent reason,
there being testimony by police agents who were present who state that
they have discussed with the agents who took Clarival that he was not
the suspect they were looking for.
Nonetheless, Clarival was taken and later executed. His body was
transported to the hospital, where the agents declared that the victim
had been shot during an exchange of fire with bandits.
also allege in the complaint that the proceedings had been prolonged,
and that more than 12 years after the events in question the matter had
not been the subject of a judicial decision.
The petitioner reports that the proceedings were subject to excessive
delay and that on June 20, 1995, the accused were placed on trial.
On that date, four of the agents denounced were convicted to 12
years in prison, and the other two were acquitted for insufficient evidence.
Of the ones convicted, three were given the benefit of release
pending appeal, while the fourth was a fugitive.
to the petitioners, the judgment handed down in the criminal proceedings
recognizes that the military police agents accused shot the victim, who
had not committed nor was about to commit any unlawful act, was unarmed
and defenseless, and put up no resistance to the police authorities.
Nonetheless, more than 13 years after the fact, the case was still
pending a final decision, and the police agents were free.
Similarly, the action for compensation sought by the victims
mother was not subject to a judicial decision, on the basis that the police
had not been proven guilty.
terms of the answer to the complaint submitted in September 1994, the
Brazilian Government merely reported on the status of the judicial proceedings
related to Clarivals death.
The State later presented new information on the proceedings.
Nonetheless, at no time did it contest the facts set forth in the
complaint, and did not state its position on the merits.
The Commissions analysis
The right to life
on the analysis of the documents and the information provided by the parties,
the Commission concluded that Clarival Xavier Coutrim was summarily executed
by agents of the Military Police of São Paulo state.
agents involved took Clarivals corpse to the hospital and said he
had died in an exchange of gunfire.
In effect, the first version they gave of the facts indicates that
they had sighted suspicious-looking persons who were in a lot in the São
Paulo neighborhood of São Mateus.
On attempting to verify who they were, the agents were shot at,
sparking a confrontation in which Clarival was killed. But this version
found no support in the statements by witnesses who were heard during
the proceedings. One of them,
who knew Clarival, said that she had seen them taking him in a vehicle,
though she hadnt witnessed his detention.
Another witness observed Clarival conversing with police agents
and entering a vehicle; it was later found out that he had been killed
that day. These facts were witnessed by the victims brother.
All these witnesses state that Clarival was shirtless, talking
with police agents, which would have made it impossible for him to conceal
one must also consider that the description of the facts by the accused
is plagued by contradictions.
the Commission understands that the conclusions of the medical examiners
opinion are important; they reveal that the six bullets that impacted
Clarival, given where they were lodged in his body, could not have been
shot at the victim in flight, in the midst of an exchange of gunfire.
It was verified that none of the bullets penetrated him from the side;
they all entered the victim from the front. The wounds indicate that the
victim was killed without defending himself at all, i.e. summarily executed.
Therefore, the Government of Brazil violated Article I of the American
Judicial guarantees and due process of law
hearings were suspended and rescheduled for dates far into the future,
which resulted in excessive delay in the conclusion of the criminal proceedings.
Because of this delay, the judgment of the accused came many years
after the facts, and even after the guilty verdict in the trial court,
the accused are still free.
than 13 years after the murder of Clarival, there had yet to be a final
judgment, conviction, and sentencing of the persons responsible for his
death. That temporary lapse
is an assault on the validity of the judicial remedy begun, and the Commission
considers that the domestic remedies were not effective in the case in
from that, the proceedings against the treasury of São Paulo state brought
by the victims parents, seeking to hold the state liable for the
conduct of its agents, and compensation for Clarivals death, were
not allowed to go forward. That was due to the fact that the judge understood
there to be a lack of evidence of liability on the part of the police
Commission understands that the failure of the criminal proceedings to
draw to a conclusion within a reasonable time had a notable effect on
the compensation action. And
although it is possible to pursue a new action for compensation after
the criminal conviction, the effectiveness of this judicial remedy will
also be gravely affected by the enormous time that has lapsed between
Clarivals death and reparations therefore by the state of São Paulo.
view of the foregoing, the Commission concluded that the Brazilian State
violated Articles 8 and 25 of the American Convention.
11.406 (Celso Bonfim de Lima)
September 1994, the Commission received a complaint reporting that Celso
Bonfim de Lima, 18 years old, restaurant employee, had been hit by a bullet
shot by military police agent Aurino Tavares da Silva, and that the wound
suffered left him paralyzed.
to the complaint, on February 26, 1983, Celso had worked in the restaurant
until 11:00 p.m. and then, in view of the late hour, had been authorized
to spend the night in the restaurant.
The military police agents received information that there were
strange movements in the locale, and they decided to check what was happening.
Once they reached the place, they saw Celso sleeping, shouted at
him to get up and open the door, and, when he obeyed their request, was
shot by the above-named agent.
March 13, 1984, military police agent Aurino Tavares da Silva was charged
with attempt of aggravated homicide before the Third Military Court of
the state of São Paulo. He was tried 10 years after the fact, whereupon
he was convicted of grievous bodily injury and sentenced to two years
imprisonment, with the right to seek a suspended sentence. The victim
filed an action for compensation before the Seventh Court (7a.
Vara da Fazenda Pública) of the state of São Paulo, which was ruled
admissible in the first instance, and affirmed by the appellate court.
Processing before the Commission
complaint was received in September 1994 and forwarded to the Government
of Brazil on May 30, 1995. On
February 20, 1996, the petitioner was sent the Governments final
arguments, and that same day was informed that the procedure provided
for in the regulations had concluded. On April 19, 1996, final information
was received from the petitioner.
June 1996, the Commission sent a note to the Government of Brazil and
to the petitioner placing itself at the parties disposal to pursue
a friendly settlement. Nonetheless, no answer was received within the
pre-established time frame. In the 98th session, the Commission approved
publication of Admissibility Report 17/98 and its inclusion in the Annual
Report for 1997.
Position of the parties
petitioners alleged that the criminal action instituted by the military
courts was slow, that the penalty imposed was too light in relation to
the crime committed, and that the agent was not detained for even one
day, which led them to demand that the Brazilian State be found responsible
for violations of Articles 4, 5, and 8 of the American Convention and
Articles XVII and XXIV of
the Declaration. The petitioner
also reported that the appeal that questioned the insufficiency of the
penalty imposed on the accused was dismissed, as the Tribunal immediately
declared that the punishability of the agent was extinguished.
Finally, the petitioner clarifies that the agent continued to be
a member of the police force of the state of São Paulo.
its answer, the Brazilian State reported that the police agent had been
convicted and that the State proposed to pay compensation to the victim,
and the respective judgment on compensation is now in the execution stage.
The Brazilian State did not challenge the facts described in the
complaint, alleging only that the judicial proceeding follow the parameters
and procedures established in the Military Criminal Code.
It clarified that the penalty was reduced because it was considered
that agent Aurino fit under the consideration of voluntary abstention,
pursuant to Article 31 of the Military Criminal Code, as he himself shot
Celso Bonfim de Lima, though the revolver was loaded with several bullets.
At no time did the Brazilian Government allege that it had not
violated the victims right to physical integrity and to the guarantees
of due process.
The Commissions analysis
Right to physical integrity (Article I of the Declaration)
first point that appears to indicate the arbitrariness of the police action
that resulted in the victims invalidity in this case is the effort
by the agents accused to create a situation of confrontation.
Apart from alleging that the victim was not alone in the interior
of the establishment and that his accomplices had fled, they stated falsely
that Celso was armed and had shot them.
was found in the investigations, however, that it had not been possible
for someone else to be in the interior of the locale and to flee, since
the examination of the locale showed that the doors were locked from inside
and that only one had been violently opened from outside, for the agents
to enter the locale. Apart
from this, it was found that the victim was unarmed and that the revolver
that the agents alleged had
been used against them was, in reality, his employers property.
on the victims statements, he was sleeping in the establishment
when the agents awoke him and told him to open the door. While he was obeying, he was hit by a bullet.
circumstances at the crime scene support this description of the facts,
as they show that there was no exchange of gunfire or assault by Celso,
who was there merely because he was an employee and had worked late, which
was confirmed by the owners.
the proceedings before the military criminal court, it was concluded that
the identity of the perpetrator of the crime was unquestionable.
The evidence indicates that Celso was defenseless and did nothing
that could have motivated the police conduct.
established the foregoing, the Commission observes that the grave harm
that Celso suffered was the result of the unsuitability and disdain for
human life of the police agents involved, who approached Celso violently,
did not give him a chance to explain why he was at that commercial establishment,
and immediately shot him without having to do so. It should be added that
given the location of the wound, the fact that the victim survived had
nothing to do with the police.
the right to physical integrity of Celso Bonfim de Lima was not respected
by agents of the São Paulo state police; accordingly, the Government of
Brazil is responsible for violating Article I of the American Declaration.
Judicial guarantees and due process of law
Commission understands that the criminal proceedings in which the accused
was judged came no less than ten years after the facts and were too slow.
In addition, the remedy sought by the accusing party to question the light
sentence imposed was dismissed.
That delay ended up giving way to the statute of limitations on
the States criminal claim.
Commission concludes that the State failed to uphold its obligation to
ensure Celsos right to judicial protection and due process of law.
The police agent responsible for the violent crime against an innocent
person who was paralyzed as a result did not serve even one day in prison,
and the punishability of the crime was extinguished.
Moreover, the criminal police agent continued to perform his normal
activities as a member of the military police. The judicial remedy offered
by the State was not effective, and so it is responsible for breaching
Articles 8 and 25 of the American Convention.
11.416 (Marcos Almeida Ferreira)
September 1994, the Commission received a complaint that Marcos de Almeida
Ferreira, 18 years of age, suffered a gunshot wound, leaving him paralyzed,
and it was fired by military police agent Elcio Vitoriano on August 31,
1989, as the victim was going to a bakery in the eastern zone of São Paulo.
had been mistaken for a suspect who was being pursued by the military
police agent, and, not having reacted, suffered a gunshot wound in the
60. The police agent was accused of committing the crime of grievous bodily injury, with treachery, by the Fourth Military Court of the state of São Paulo. The prosecution of the accused was initially set for March 1995, but due to several dilatory procedures, it did not happen. An action for compensation was brought before the Ninth Court (9a. Vara da Fazenda Pública) of the State of São Paulo which was declared partially admissible in the first instance.
Processing before the Commission
report was received in September 1994, and forwarded to the Government
of Brazil in December that same year.
The Government presented its answer in July 1995.
As of February 1996, the Government stopped answering the Commissions
requests for information. Admissibility
Report 17/98 was approved and published in the Commissions Annual
Report for 1997.
Position of the parties
complaint stated that police agent Elcio Vitoriano had been informed of
an attempted robbery, which is why he undertook the pursuit of a person
he mistook for the culprit. Nonetheless, at no time did he attempt to
find out the facts and the responsibilities.
After the pursuit, Marcos was shot in the lumbar region. Later,
the agent attempted falsely to establish that the victim had put up resistance,
for which the victim Marcos Almeida Ferreira was tried for those acts
before the regular courts. At
trial, Marcos was acquitted; the judgment was clear that he had been the
victim of the stubborn determination of an agent without preparation
to use the uniform, with a homicidal and truly
criminal state of mind.
petitioner also alleged that six years elapsed from the time of the underlying
facts until the police agent accused was convicted, and that one year
after conviction at trial, a final decision had yet to be reached in the
case, and the police agent continued at liberty, thus the petitioners
feared that the case would remain in impunity, for at the time of the
complaint it was likely that the statute of limitations on the States
punitive claim would run.
Government of Brazil presented its answer on June 15, 1995, when it reported
that the accused had been judged on March 27, 1995, and sentenced to three
years imprisonment; the proceeding was then referred to the instance in
charge of executing the judgment.
The Brazilian State merely reported on the conclusion of the proceeding
and at no time denied the facts presented by the petitioners, nor did
it address the merits of the case.
The Commissions analysis
Right to physical integrity
version of events described by the victim is fully supported by all the
evidence collected in the first two judicial proceedings related to the
facts. The situation of resistance, affirmed by police agent Elcio, was
not supported, not even by the prosecution witnesses heard in the first
judicial proceeding against Marcos. Indeed in this proceeding, the Public
Ministry itself called for the acquittal of the accused, Marcos, because
the evidence collected during the judicial inquiry had made it clear that
what happened in fact was an aggressive and abusive action on the
part of military police agent Elcio Vitorino; and it even called
for the agent to be held liable for the very grave consequences of his
acts. It was proven that Marcos was unarmed, that he committed no crime,
and that he put up no opposition to the police action.
effect, Marcos was acquitted of the crime of resistance, and a copy of
the proceedings was sent back to the Public Ministry, which, also convinced
of Elcio Vitorinos guilt, charged him with grave bodily assault.
the face of all this evidence, the Commission understands that the petitioners
proved that an agent of the São Paulo state security force had violated
the right to physical integrity of Marcos Almeida Ferreira; accordingly
the Brazilian State has violated Article I of the American Declaration.
Procedural guarantees and due process of law
abusive and violent attitude of military police agent Elcio Vitorino had
very grave and permanent consequences for the victim, who has lost his
consequences should be attenuated in the best possible manner to make
reparation, albeit partial, for the harm suffered by the victim.
In this regard, the Public Treasury of São Paulo state ruled that
the compensation act brought by Marcos was partially admissible, ruling
that he has the right to a lifetime pension and compensation for the moral
part of the reparation to which the victim has a right in these cases
is the prosecution and punishment of the persons responsible for the criminal
act committed against him. The
Commission understands that on this point the Brazilian State did not
guarantee Marcos his rights to due process of law and judicial guarantees. Although a criminal action was begun in the prosecution of
Elcio Vitorino, that proceeding ended in conviction of the accused only
six years after the crime was committed, and afforded him the benefit
of release pending appeal. In
this way, the verdict was not effectively enforced, and, due to the short
penalty imposed and the delay in processing the appeals, there is a risk
that the statute of limitations on the States criminal action will
run in relation to this crime.
the Commission understands that the domestic remedies were not effective
because of the delay, and so Marcos Almeida Ferreira was not guaranteed
his right to due process of law or his right to the guarantee of seeing
the person responsible for the grave violations of which he was the victim
brought to trial, prosecuted, and punished. In this regard, the Brazilian
State has violated Articles 8 and 25 of the American Convention.
11.413 (Delton Gomes da Mota)
Commission received a complaint in September 1994 according to which Delton
Gomes da Mota, 20 years old, had been killed by military police agents
Gilson Lopes da Silva and Maurício Correa da Silva on March 14, 1985.
appears in the complaint that the victim was with some friends on a street
in northern São Paulo when they were approached by police agents who were
looking for a drug trafficker believed to be in the region. The agents
began to shoot at the group, which dispersed.
Fleeing, Delton had thrown himself into a stream and then went
to a thicket, where he was hit by four bullets from a firearm.
October 1985, military police agents were accused before the Third Military
Court of the state of São Paulo for the aggravated homicide of Delton
Gomes da Mota. His parents
filed an action aimed at declaring state responsibility for the death
of their son; in 1997 the action had been at a standstill for more than
three years, awaiting the conclusion of the criminal proceedings.
B. Processing before the Commission
Commission received the complaint on September 15, 1994, and forwarded
the pertinent parts to the Government of Brazil on December 13, 1994.
On June 15, 1995, the Government of Brazil presented its answer,
reporting on the status of the proceedings.
Later, and on several occasions, the parties informed the Commission
as to the development of the criminal proceedings related to the crime
in question. Nonetheless,
as of April 25, 1996, the Brazilian State ceased responding to the requests
for information from the Commission. During its 98th session, the Commission approved Report 17/98,
in which it considered this complaint admissible; that report was published
in the Annual Report of the Commission for 1997.
Position of the parties
the complaint submitted in September 1994, the petitioner alleges that
Delton Gomes da Mota had been arbitrarily attacked by police agents who
were looking for a drug trafficker from the region, while talking with
friends. Immediately thereafter,
the agent had summarily executed the victim, with no apparent motive.
petitioners also state that nine years have elapsed since the facts, without
the accused having been judged responsible for Deltons death.
In a later statement, the petitioner reported that the date of
the judgment was postponed nine times, and that ten years had gone by
with no final decision in the case.
its answer, the Government of Brazil alleged that the process of investigation
in the death of Delton Gomes da Mota was still before the Third Military
Court of the state of São Paulo.
It asserted that the accused, Maurício Correa do Nascimento, had
been sentenced to 24 years of penitentiary, but that information was refuted
by the petitioners, who alleged that the sentence referred to another
crime committed by the same agent.
The Brazilian State did not contest the truthfulness or accuracy
of the facts and circumstances of the crime, as described by petitioners,
nor did it make any statement as to the merits.
The Commissions analysis
Right to life
is clear from the statements taken from persons who witnessed the facts
and the victims family that the approach to and execution of the
victim was arbitrary.
file shows the lack of suitability and disdain for human life of the agents
involved, who approached the youths in a totally irregular fashion.
They assumed that they were drug traffickers, without any prior
verification of their identity.
addition, the wounds suffered by the victim indicate extreme violence
in the arrest. If the agents
objective had really been to keep the youth from fleeing, or hold him
for questioning, it would have sufficed to immobilize him.
Nonetheless, the shots entered Delton in vital regions (the chest
and head), which indicates the crime of homicide.
For these reasons, the Commission understands that the Brazilian
State, through the action of police agents Gilson Lopes da Silva and Maurício
Correa da Silva, violated the right to life of Delton Gomes da Mota, provided
for in Article I of the American Declaration.
Procedural guarantees and due legal process
judicial proceeding for inquiring into the responsibilities for the death
of Delton was extremely slow and at times appeared to reflect a lack of
interest on the part of the military judicial authorities in promptly
and effectively concluding the case.
is the Commissions understanding considering, for example, that
the trial of the accused failed to start on the dates set eight times.
In addition, the time between the rescheduled hearings was sometimes
excessive, reaching the extreme of 14 months in one case.
delay, in addition to setting back the judicial action to which Deltons
family members have a right, in order to see the assassins of their son
put on trial, also kept them from receiving timely compensation for the
tragic incident, as the action for declaring the states responsibility
for Deltons death was at a standstill, awaiting a decision in the
85. In view of the foregoing, the Brazilian State violated Articles 8 and 25 of the American Convention, as due process of law and the procedural guarantees to which the victims family members have a right were not observed in the procedures cited.
As prescribed in Article 19(2)(a) of the Commissions Regulations,
Member of the Commission Hélio Bicudo, of Brazilian nationality, did
not participate in the discussions or the voting on this case.
Case 11.414, which was admitted together with the cases analyzed here,
will be examined in a separate merits report; it is not addressed
by this report.
IACHR Report 17/98 of February 21, 1998. Annual Report 1997. Pp. 72