Gilson Noguiera Carvalho v. Brazil, Case 12.058, Report No. 61/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 145 (2000).
GILSON NOGUEIRA CARVALHO
October 3, 2000
On December 11, 1997 the Inter-American Commission on Human Rights
(hereinafter the Commission) received a complaint filed against
the Federal Republic of Brazil (hereinafter the State or Brazil)
by the Center for Human Rights and Popular Memory (CDHMP), the Holocaust
Human Rights Project (HHRP), and the Group of International Human Rights
Law Students (GIHRLS).
The complaint concerns the assassination of human rights attorney
Gilson Nogueira Carvalho in Natal, Río Grande do Norte on October 26, 1996,
allegedly as a result of the victims denunciations and human rights
lawsuits in connection with the activities of a death squad known as the
Meninos de Ouro (Golden Boys), which is reportedly composed
of civilian policemen and staff of the Río Grande do Norte State Public
also addresses the failure to provide a fair trial with due process and
the lack of compensation for the acts committed.
The petition alleges that the acts constitute violations of the rights
guaranteed in the American Convention on Human Rights (hereinafter the
Convention) including: Article
4 (right to life); Article 8 (right to a fair trial); and Article 25 (right
to judicial protection) in conjunction with Article 1(1) (obligation to
The State replied that there was evidence of criminal activity in
the case of Gilson Nogueira, as well as traces of evidence of the perpetrator,
and the case is currently in the preliminary stages: specifically, at the
arraignment (pronuncia) stage,
which means that the investigations have reached a point at which the conviction
that a crime was committed exists, along with traces of evidence of who
After analyzing the petition and the fulfillment of the requisites
for application of the Convention, the Commission decided to declare the
case admissible with respect to the alleged violations of the Convention:
Article 4 (right to life); Article 8 (right to a fair trial); and
Article 25 (right to judicial protection) in conjunction with Article 1(1)
(obligation to respect rights).
II. PROCESSING BY THE COMMISSION
The Commission received the initial complaint in English on December
11, 1997, and transmitted it to the State on January 21, 1998, requesting
a reply within 90 days. At
the States request that it be sent in Portuguese, the Commission asked
the petitioners to submit a translation, which was received on October 13,
1998, and transmitted that same day to the Government, with a request for
a reply within 90 days.
In view of the States failure to reply, on April 1, 1999, the
Commission sent a second request to the Government to reply within 30 days.
On May 1, 1999, the Commission reiterated to the State that it would
consider application of Article 42 of its Regulations if a reply were not
received within 30 days.
On June 29, 2000, the State sent a one-paragraph statement indicating
that the procedure for investigating the murder of attorney Gilson Nogueira
de Carvalho had started and that an appeal had been lodged against the previous
file. No other response has
been received. (See the full text of the reply in footnote 3.)
On August 25, 2000 the petitioners sent new information on the status
of the case, which was forwarded to the State on August 30, with a request
for a reply within 30 days. At
the time this report was written, no answer had been received from the State.
FACTS ALLEGED IN THE PETITION
A. Background Information
Complainants note the prevalence of police violence in 1995 throughout
the state of Rio Grande do Norte and especially in its capital, Natal.
Allegedly, Deputy Secretary of Public Security, Maurilio Pinto de
Medeiros (Pinto) participated in the coordination of a death squad known
as the Meninos de Ouro (Golden Boys), comprised of civil
police officers and employees of the State Secretariat of Public Security
under Pintos direction.
According to the complaint, during Pintos tenure as Deputy
Secretary of Public Security, the Golden Boys, acting as state agents under
Pintos direction, committed a series of human rights violations, including
torture and murder.
The complaint refers to particular instances of police violence,
including the Mãe Luiza massacre, which occurred on March 5, 1995.
Police Officer Jorge Luiz Fernandes, known as Jorge the Smotherer,
allegedly kicked down the door of Maria Lúcia Costas home at 1:30
in the morning, shot her in the face and shot her two sleeping children
at close-range, injuring her daughter in the arm and hip and blinding her
son in one eye. Allegedly,
Fernandes continued to fire eight more shots, killing her husband, and then
killed a pregnant woman observing the massacre from a neighboring window.
Evidence suggests the crime was committed to prevent the husband
from testifying about Fernandes involvement in another crime.
Since the massacre, Mrs. Costa and her son have been stalked and
threatened regarding their testimonies.
The complaint also notes the torture of Arivone Gonçalves who was
allegedly taken to Pintos office at the State Secretariat for Public
Security by three Golden Boys (Ranulfo Alves de Filho, Admilson Fernandes,
and Maurilio Pinto de Medeiros, Jr.) on April 2, 1993.
The three agents interrogated, kicked, beat, and electrocuted Gonçalves
through wires attached to his back, face, tongue, teeth, and testicles.
Despite complaints by Gonçalves and his attorney, Gilson Nogueira
(the primary subject of this petition), no serious investigation into the
torture was conducted.
The third example of police violence noted in the complaint concerned
Fernandes and Ranulfos alleged shooting of Wanderley Dantas
Marques on December 18, 1993, for a fee of 200,000 cruzeiros.
Fernandes then allegedly fired into a crowd of bystanders, killing
Jeferson do Nascimento, a sixteen-year-old boy.
Nascimentos family reported the incident to police officers
at the hospital, at the local precinct, and at the Secretariat for Public
however, a police inquiry into the case was not opened until two years later
when Gilson Nogueira pressured prosecutors to investigate this incident
in connection with numerous other homicides attributed to Fernandes.
According to the complaint, as a result of Nogueiras work and
NGO pressure, a Special Federal Commission was established to investigate
crimes committed by the Golden Boys.
The Special Commission heard over 100 witnesses, investigated about
30 cases, filed seven prosecutorial indictments against members of the Golden
Boys, filed two indictments against Pinto, and issued two reports, finding
civil police agents and employees of the State Secretariat for Public Security
responsible for all the crimes investigated.
The complaint states that by August 7, 1995, the Public Prosecutors
Office finally indicted Ranulfo and Fernandes for their criminal activities
and requested their pre-trial detention, which was ordered.
However, Ranulfo was released four months later, and Fernandes has
been allowed to leave prison on numerous occasions.
The complaint points out that after the report of December 18, 1995,
the Special Commission was disbanded and the cases were effectively dropped
due to the apparent lack of institutional support within the state apparatus
and due to death threats against prosecutors, discouraging them from pursuing
the cases. To date, no one
has been convicted for any of the crimes investigated by the Special Commission.
B. Specific Violations
Alleged in the Complaint
According to the complaint, attorney and human rights defender Gilson
Nogueira spearheaded investigations into the previously mentioned cases
of torture and murder committed by police officers under the authority of
the Deputy Secretary of Public Security, Maurilio Pinto de Medeiros (Pinto).
Nogueira provided legal assistance to the surviving relatives and
victims of state sponsored torture, murder, and other human rights violations
attributed to the Golden Boys. In
addition, Nogueira pressed the public prosecutors office to conduct
independent investigations into police-led death squad activities in Natal,
and he served as Assistant to the Prosecution in several of these cases.
Nogueira also exposed the climate of impunity in Natal that allowed
the Golden Boys to repeatedly escape prosecution for criminal acts.
The complaint alleges that as a result of attorney Nogueiras
efforts to expose police violence, his was the first name on a hit
In addition, he received death threats, which he reported to federal
authorities during a hearing organized by the Federal Human Rights Commission
in Brasilia on August 14, and 15, 1995.
The complaint notes that as a result of this hearing, Nogueira received
federal police protection, which began on September 6, 1995.
However, this protection was withdrawn on June 3, 1996.
According to the complaint, on October 20, 1996, in the state of
Rio Grande do Norte, Nogueira was gunned down outside of his home just after
midnight. The complaint indicates
that seventeen bullets were fired at Nogueira by three hit-men in a red
Volkswagen Golf, license plate number KCP171Z, which had been reported stolen
from its owner, Bruno Netto Ferraz, three weeks earlier. According to the complaint, medical exams established that
Nogueiras wounds were caused by rounds fired from a twelve-shooter
shotgun and a 9-mm. rifle.
The complaint alleges that the three hit men fled the scene and burned
the stolen vehicle in an attempt to destroy forensic evidence.
The complaint reports that on October 28, 1996, federal authorities
sent a delegation from Brasilia to investigate Nogueiras murder.
The delegation of federal deputies urged local authorities to investigate
Nogueiras killing and to prosecute those responsible.
According to the complaint, the Public Prosecutor also visited Natal
and exerted pressure on the Governor of Rio Grande do Norte to suspend Pinto
from his position as Deputy Secretary for Public Security. Continuing efforts to keep Pinto from resuming his post as
Deputy Secretary of Public Security have been made by the Federal Attorney
General for Human Rights.
The complaint notes that despite these visits, federal agents closed
investigations into Nogueiras murder without naming suspects for indictment,
notwithstanding significant evidence pointing to the involvement of members
of the Golden Boys in the crime. The
complaint alleges that one of the primary suspects in Nogueiras murder
is civil police officer, Jorge Luiz Fernandes.
Federal investigators identified him, but, according to the petition,
conducted inadequate inquiries into his involvement in the crime because
they failed to pursue various leads or to question potentially key witnesses.
The complaint cites as an indicator of impunity and lack of preventive
action by the State, the fact that, although Fernandes was already under
pre-trial detention for his participation in other homicides, he was released
from custody the weekend of Nogueiras murder, as was documented by
the detention centers official registry and Pintos statement.
Judicial authorities in Natal permitted Fernandes to make conjugal visits
to his wife, inconsistent with Brazilian law, which only permits detainees
to receive conjugal visits (not
to leave prison for that purpose).
Fernandes also frequently left his place of detention during times
not specified by the judicial order, escorted by Maurílio Pinto de Medeiros,
Jr. and the personal driver of the Deputy Secretary for Public Security,
Medeiros Pinto. While outside
jail, Fernandes and the other Golden Boys allegedly intimidated and threatened
witnesses to prevent them from testifying and reporting criminal police
IV. POSITIONS OF
A. Position of the petitioners
Complainants allege that the State is directly responsible for the
murder of Gilson Nogueira due to the involvement of its state agents.
The State failed to suppress routine acts of violence committed by
police agents, thus allowing a climate of impunity to develop.
The State also failed to undertake thorough and meaningful investigations
into Nogueiras killing, to prosecute those responsible, and to provide
adequate and effective judicial recourse.
The petitioners maintain that the State failed to fulfill its obligations
under the Convention for the following reasons:
It withdrew police protection for Nogueira too soon.
It allowed violent and criminal members of the death squad known
as the Golden Boys to continue in active service in the police, thereby
risking that they would continue to misuse their authority by torturing
and murdering those who, like Nogueira, dared to object to their conduct.
It allowed Jorge Luiz Fernandes regularly to leave the precincts
in which he was detained, knowing that such outings jeopardized the lives
of witnesses of the crimes committed by him and those of others, like Nogueira,
who were trying to have Fernandes tried;
It failed to conduct thorough investigations into police involvement
in the murder of Nogueira; and
It neglected to provide adequate protection for witnesses or judicial
remedy for the victims of police violence and their relatives.
Regarding admissibility, the complainants claim in their original
petition exhaustion of domestic remedies since investigations were closed
before any suspect could be indicted for the crime, and police involvement
in the killing was dismissed without serious consideration.
Federal Police Investigator Gilson Campos neither questioned the
credibility of Fernandes alibi, nor did he adequately probe police
involvement into Nogueiras murder, claiming that he lacked sufficient
resources to conduct thorough investigations.
On June 19, 1997, after seven months of investigations, Campos and
the local prosecutor recommended that Judge Talita de Borba Maranhao e Silva
shelve the case. As a result,
no formal charges were brought and police investigations were closed.
The petitioners contend that the shelving of the case constitutes
a final judgment since under Brazilian law, once a case has been shelved
(arquivado) proceedings may only
be reopened if new facts are found, and petitioners are not authorized to
reopen cases that have been shelved.
The petitioners assert in that original petition that although the
decision to shelve a case is not necessarily final, for purposes of Article
46(1)(b), the decision may be considered a final judgement for
admitting a petition seeking recourse for violations of the Convention.
Since the petition was filed within six months of the shelving date,
the petitioners contend that it satisfies the requirements of Regulation
The petitioners request that the Commission find that the State of
Brazil violated Articles 4 (right to life); 8 (right to a fair trial); and
25 (right to judicial protection) in conjunction with Article 1(1) (obligation
to respect rights) of the Convention and recommend that the State:
1) reopen the investigation into the death of Gilson Nogueira, conducting
thorough and meaningful inquiries into police involvement, particularly
that of Jorge Luiz Fernandes; 2) prosecute to the fullest extent of the
law those found directly and indirectly responsible; 3) provide protection
for individuals willing to testify against police and state agents; and
4) pay reparations to Gilson Nogueiras family.
In regard to Deputy Secretary of Security, Pinto, the petitioners
request that the Commission recommend that the State: 1) investigate his background, expose his involvement in criminal
activities, and prosecute him in accordance with Brazilian law; 2) remove
him from his post as head of the Special Arrests Precinct (Delegácia
de Capturas); and 3) suspend him from the police force.
The petitioners also request that the Commission recommend that the
State: 1) monitor the independence and the integrity of the judiciary; 2)
support efforts by the State Prosecutors Office to prosecute and try
local police; 3) immediately suspend local police officers from duty for
their involvement in criminal activities and reverse judicial orders allowing
Jorge Luiz Fernandes to leave his place of detention on a regular basis;
and 4) clarify and strengthen the power of the Federal Government in disputes
with state authorities.
On August 5, 2000, the petitioners provided updated information on
the investigation and criminal proceedings. According to the information
provided, one of the current petitioners, James Cavallaro, at that time
Director of the Human Rights Watch office in Brazil and persons filming
documentaries for the British Broadcasting Corporation were able to meet
a former policeman in Río Grande do Norte.
This former police officer (whose name they do not disclose for security
reasons and whom they call Luis) provided them with information
on policemen and civil servants in the Secretariat of Public Security who,
he said, had taken part in actions attributed to the Golden Boys, and with
whom he had worked as a police agent for several years.
The information provided states that Luis told them of the existence
of a place about 10 to 15 kilometers outside Natal, where the bodies of
the victims of the White Hand and Golden Boys death
squads were buried. Luis also provided details of the conspiracy to kill
attorney Gilson Nogueira and of his actual murder.
According to Luis, four members of the death squad (two from each
subdivision of Golden Boys) took part in the murder led by the
Deputy Secretary of Defense Maurilio Pinto de Medeiros.
The four that took part, according to Luis, were Maurilio Pinto Jr.,
Otávio Ernesto, Jorge Luis Fernandes (alias The Smotherer) and
policeman Admilson Fernandez.
The then Director of Human Rights Watch (HRW) and the BBC reporters
apparently met Luis on several occasions, with each encounter yielding more
information as to the pattern of the killings and location of the clandestine
graveyard. Luis also gave the
names of the victims. The BBC and HRW professionals checked those names
in local newspaper archives and confirmed that several of them were dead
or had disappeared. The BBC reporters filmed one of the interviews in which
Luis provided extensive information, and, specifically, details of Gilson
According to this information provided by the petitioners, the Human
Rights Watch and BBC staff contacted investigate reporter Caco Barcellos
of the Globo television network, who in turn hand the information over to
the Federal Police authorities in Brasilia. Armed with the data on the existence
of a clandestine burial place, together with the information on the death
of Gilson Nogueira, the Federal Police obtained a warrant to search the
property where the bodies had allegedly been disposed of.
The plot of land belonged to former civil police officer Otavio Ernesto.
On November 16, 1998, Federal Police agents entered the premises
owned by Otavio Ernesto pursuant to the warrant, accompanied by Globo network
and BBC journalists and Human Rights Watch staff.
After a morning spent searching in vain for the bodies, the police
decided to suspend the search. The
petitioners maintain that with the (archeological) search method employed
it would have taken 20 days to comb the area completely. During their search,
the police found weapons and arrested Otavio Ernesto for illegal possession
of firearms. A few days later
Otavio Ernesto was released.
The authorities in charge of the investigation decided to conduct
a laboratory test to see whether the weapons seized matched the deflagrated
bullet shells found at the site where Gilson Nogueira was killed.
The ballistic analyses showed conclusively that they belonged to
one of those weapons. On that ground, and on the basis of the Luis interview,
the Government Attorney (Promotor de la Justicia) indicted Otavio Ernesto and ordered his arrest.
As this report was written no date had been set for his trial.
According to this same information, in April 1999 Judge Patricia
Gondim Moreira Pereira summoned James Cavallaro, Director of HRW, to testify
and in his statement he told her the names of the policemen and civilians
who, according to Luis, took part in the murder of Gilson Nogueira, together
with details of the conspiracy and assassination, including Luis statement
that Maurilio Pinto de Medeiros had coordinated the murder.
The next day, James Cavallaro gave an interview to the local newspaper
in Natal (Diario de Natal), in
which he repeated the information he had given the judge. As a result of that interview, Maurilio Pinto de Medeiros filed
a civil action against Cavallaro, demanding payment of damages. He also
filed a criminal accusation with the Office of the Public Prosecutor, which
admitted it and opened a case for libel, in which evidence had already been
heard on August 4, 2000.
This additional information was transmitted to the State on August
30, 2000, with a request that it reply within 30 days. No reply from the
State has been received.
Position of the State
The State has not contested the facts alleged in the petition. However,
in its succinct reply, the State indicated that there is evidence of criminal
activity in the case of Gilson Nogueira, as well as traces of evidence of
the perpetrator, and the case has been reopened with an accusatory statement
that has been appealed by the public prosecutor.
See footnote 1 for the full text of the reply. The State has not
replied regarding the additional information it was sent on August 30, 2000.
Request for precautionary measures related to the case
On November 8, 1996, the Commission received a request for precautionary
measures to protect various judicial authorities and human rights defenders
in Río Grande do Norte allegedly on a death list drawn up by the Golden
Boys because of their opposition to the death squads activities
and their denunciations in connection with the murder of Gilson de Nogueira,
the month before. The applicants
cited, for the Commissions information, a list of 31 instances of
repression, murder, and torture by police that they attributed to the Golden
Boys under the leadership of the Deputy Secretary for Public Security.
The Commission informed the Government of this denunciation on November
13, 1996 and asked it to comment.
The Commission received no answer to this request. However, on December
17, the petitioners reported that the Federal Minister of Justice and the
Chair of the Council for the Defense of the Individual had formed a committee
to investigate the situation in Río Grande do Norte, but that the resolution
concerned did not contemplate providing protection to the people on the
On December 19, 2000, pursuant to Article 29(2) of its Regulations,
the Commission decided to request precautionary measures to protect that
list of threatened persons, which included the State Attorney General (Procurador
General de Justicia del Estado), the Prosecutor (Procurador
de Justicia), five justice outreach workers (promotores
de justicia) and a congressman; as well as two human rights defenders
at the Center for Human Rights and Popular Memory.
In April 1997, the Commission was notified that one of these persons
resigned from his post in the Chamber of Deputies due to the lack of security
in his work environment. It was also told that no security measures had
been adopted and that there had been an attack on the home of one of the
human rights defenders, Dr. Roberto Monte. Moreover, the Deputy Secretary
of Public Security, Maurilio Pinto de Medeiros, who had been denounced as
the commander of the Golden Boys death squad, had been reinstated
in the post from which he had been temporarily suspended.
The Commission received further information on May 19 and October
16, 1998, and on April 19, 1999, updating the information on the judicial
proceeding related to the events that gave rise to the request for precautionary
measures. That information
showed and described the still dangerous situation in Río Grande do Norte.
The information referred to the discovery of new evidence regarding
the activities of the Golden Boys and mentioned that several
public and private human rights defenders had had to leave Río Grande do
Norte for security reasons.
In each of these cases, the information was transmitted to the Government
within the process of requesting precautionary measures. No reply from the
State has been received.
V. ANALYSIS OF JURISDICTION AND ADMISSIBILITY
A. Competence Ratione
Materiae, Ratione Tempori, Ratione
Personae and Ratione Loci
of the Commission
The Commission has jurisdiction
ratione materiae (over the subject matter), ratione loci (over
the place), and ratione tempori (by reason of time) since the case
concerns rights protected by the Convention under Articles 4, 8, 25, and
1, and the alleged violation of those rights that occurred in Brazil on
October 20, 1996, subsequent to Brazils ratification of the Convention
on September 25, 1992.
The Commission has jurisdiction ratione personae (over the
person). Regarding its passive ratione personae competence, the petitioners
claim that the violations were committed by government officials of Brazil,
a member State. Article 1(1)
of the Convention implies that any impairment of rights guaranteed by the
Convention, which can be attributed under the rules of international law
to the action or omission of any public authority, constitutes an act imputable
to the State.
Under Article 28 of the Convention, in the case of a federal state,
such as Brazil, the national government is responsible internationally for
actions of the agents of entities forming the federation.
Regarding its active ratione personae competence, Regulation 26(1)
provides that [a]ny person or group of persons or nongovernmental
entity legally recognized in one or more of the member states of the Organization
may submit petitions to the Commission, on ones own behalf or on behalf
of third persons. Therefore,
the nongovernmental organizations, CDHMP, HHRP and GIHRLS, have standing
to petition on behalf of Nogueira.
Exhaustion of Domestic Remedies
The rule contained in Article 46(1)(a) of the Convention, requiring
that any remedy offered by domestic law first be pursued and exhausted,
stipulates that the substance of all petitions brought before the Commission
must have first been heard by the domestic courts. This rule allows states
to resolve disputes under their own legal systems before facing international
proceedings. The petitioner
notes that inquiries into Nogueiras death were closed and the case
was shelved (arquivado). According
to Brazilian law, once a case has been shelved, it may only be reopened
if new facts are found. Therefore,
the Commission must analyze: a)
whether the State has invoked this exception and did so on time; and alternatively
b) if the new facts have a bearing on the admissibility of the case.
In its only reply, the State does not invoke the non-exhaustion of
domestic remedies objection. According to Article 46(1)(a) of the Convention,
the remedies under domestic law must have been exhausted for a petition
to be admitted by the Commission. As the Inter-American Court has pointed
out, this is a rule that can be waived by the State either expressly or
by implication and to be timely it must be invoked at an early stage of
the proceedings, failing which the State may be presumed to have tacitly
waived this requirement.
The Commission considers that the States silence in this
case constitutes a tacit waiver of the right to invoke this objection and
relieves the Commission of the need to continue to consider the question
of compliance. The Commission therefore declares the case admissible with
respect to this requirement.
In addition to the above, and even had the Commission not recognized
a tacit waiver by the State of its right to timely objection to nonexhaustion
of the domestic remedies requirement, the Commission considers that the
exceptions stipulated in Article 46(2)(a)(b) and (c) of the Convention would
have applied. They allow for
admission of cases when: 1) the domestic legislation of the state concerned
does not afford due process of law for the protection of the right or rights
that have allegedly been violated; and 2) the party alleging violation of
his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them.
The Commission reached on the basis of the following facts.
It is an undisputed fact that the State shelved the case and ended
the investigations seven months after the death of Nogueira, without having
made any serious effort to identify and try the person or persons responsible.
It is also an undisputed fact that the reopening of the proceedings
mentioned by the State in its note of June 2000 refers to only one of those
accused of the murder of Gilson Nogueira, and that that reopening was not
due to any urge to investigate and indict on the part of the State but a
result of pressure exerted by human rights defenders and local and foreign
journalists, who managed to persuade a former policeman involved in the
activities of the Golden Boys death squad to tell them about
those activities and the plot to murder Gilson Nogueira, together with the
names of the perpetrators. This
information was corroborated to the extent that the weapon used in the crime
was found on a plot belonging to one of the policemen accused. Only the
actions undertaken by these human rights defenders proved capable of provoking
a response from the Federal Police (not the state police, nor military court
prosecutors) and achieving a partial reopening of the case.
It is also an undisputed fact that the reopening of proceedings concerned
only one of the five policemen involved, since the investigations focused
exclusively on the responsibility of the civilian policeman, Otavio Ernesto.
The State has not conducted any other serious and effective inquiry into
the criminal association of the other policemen and civilian authorities
accused along with the policeman currently on trial, despite the fact that
human rights defenders have submitted evidence linking them to the crime.
There has been unwarranted delay in moving ahead with this case,
primarily due to the lack of a proper investigation, which led to its being
shelved, and then due to the absence of investigations or proceedings against
the majority of those responsible. The Commission has been told that, as
of the date of this report, no date has yet been set for the trial of the
The Commission considers that the exhaustion of domestic remedies
requirement is subject, under Article 46(2)(1), to the existence of effective
domestic remedies. In the Fairén
Garbi and Solís Corrales case, the Court maintained that the merely theoretical
existence of legal remedies is not sufficient for this objection to be invoked:
they have to be effective, They are not effective when formal requirements
make them inapplicable in practice; the authorities against whom they were
brought simply ignored them, or because attorneys and judges were threatened
and intimidated by those authorities.
As emerges from the information in the petition, the additional information
provided, and in the various different requests for precautionary measures,
none of which has been disputed by the State, inquiries by the military
courts, the state police, the Attorney Generals office, and the judicial
authorities have beenand in this caseare still ineffective.
The Commission would again like to point out that it had to ask the
State to take steps to protect senior officials in the Public Prosecutors
Office, justice outreach workers, attorneys, and human rights defenders,
all of whom have been threatened and intimidated.
In principle the intimidation would appear to be continuing in the
form of lawsuits against two human rights defense attorneys for alleged
libel offenses, for having repeated to the press the testimony they gave
to the judge in the case.
Article 46(1)(b) of the Convention stipulates that for a petition
to be admissible, it must be submitted to the Commission within six months
of the date on which the petitioner was notified of the final ruling.
The Commission finds in the instant case that the decision to shelve
the case constitutes a final decision for determining the filing period.
Since the petition was placed before the Commission on December 11,
1997, within six months from the date the case was shelved (June 19, 1997),
the Commission concludes that this requirement has been met.
In the alternative, since the Commission notes that the petitioners
meet at least one of the exceptions under Article 46(2) of the Convention,
the 6 month filing period does not apply as is stated in Article 46(2).
Duplication of Proceedings and Res
With regard to the requirement in Article 46(1)(c) of the Convention,
stating that the petition must not be pending settlement in any other international
proceeding, the Commission has received no information indicating that any
such situation exists. The Commission therefore holds that this requirement
has been met. In addition, the Commission also concludes that the requirement
set forth in Article 47(d) has been met, in that this petition is not substantially
the same as any petition already studied by the Commission or ruled on by
another international organization.
Nature of the Violations
Article 47(b) of the Convention states that the Commission shall
consider inadmissible any petition or communication that does not
state facts that tend to establish a violation of the rights guaranteed
by this Convention. The
petitioners claim that the State, through its agents, assassinated Nogueira,
violating his right to life (Article 4), and that in failing to make adequate
investigations into the murder, the State violated Nogueiras rights
of due process (Article 8). Finally,
the petitioners contend that the State has allowed crimes to go unpunished,
fostering a climate of impunity which has lead to human rights violations,
violating the right to judicial protection and the obligation to respect
the rights set forth in the Convention (Article 1). If
proven true, the facts alleged by the petitioners could constitute violations
of rights protected by the Convention. Therefore, the Commission concludes
that this requirement has been met.
The Commission concludes
that it is competent to take cognizance of this case and that the petition
meets the admissibility requirements under Articles 46 and 47 of the American
Convention and Articles 1 and 20 of its Regulations.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare, without prejudging the merits of the instant case, that
this petition is admissible with respect to the alleged facts, and to Article
4 (right to life); Article 8 (right to a fair trial); and Article 25 (right
to judicial protection), in conjunction with Article 1(1) (obligation to
respect rights) of the American Convention.
To transmit this report to the State and to the petitioners.
To place itself at the disposal of the parties concerned with a view
to reaching a friendly settlement, in accordance with Article 48(f) of the
To continue processing the case with an analysis of the merits of
To publish this report and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C. on the third day of the month of October, 2000. (Signed): Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
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.
With the consent of the other petitioners, the Global Justice Center
joined the petition on August 25, 2000.
The full text of the States reply was as follows:
case 11.852 (Gilson Nogueira de Carvalho), I have the honor to inform
Your Excellency that, according to information recently received from
the Office of the Attorney General of the State of Río Grande do Norte,
the investigations into the death of attorney Gilson Nogueira de Carvalho
have reached the arraignment stage, which is tantamount to the court
admitting there is convincing evidence that a crime has been committed
and traces of evidence as to who committed it.
At the same time, given that the opinion of the Office of the
Attorney General differs from that of the court, it will be up to the
Court of Justice of the State of Río Grande do Norte to rule on admission.
In petitions concerning that case, requesting precautionary measures,
complainants mention 31 cases of killings, murders, attacks, and torture
that they attribute to this already accused death squad.
In the investigation carried out by the Office of the Attorney General
and the report on it issued on July 31, 1995, Jorge Luis Fernandes (alias
Jorge Abafador) is registered as charged with the commission, alone
or in association with others, of five homicides, three attempted murders,
and cases of serious bodily harm.
Testimony of Maria Lúcia Costa during proceedings in Processo
No. 5.030/95 pronounced on November 8, 1996, before the Criminal
Court of Rio Grande do Norte and subsequently repeated on October 6,
1995, in the State Legislative Assembly of Rio Grande do Norte before
the President of the Federal Human Rights Commission of the Federal
Chamber of Deputies.
Deposition of Arivone Gonçalves signed by him and his attorney, Gilson
Nogueira and confirmed in an interview between Gonçalves and a representative
for the petitioner.
Equivalent to US$770.00 at the time.
Human Rights Watch/Americas at 97.
Interview of Jeane do Nascimento on August 13, 1997.
In this report the Commission stated that the civil police under investigation
formed part of the Golden Boys death squad, an informal vigilante group
tied directly to the Deputy Secretariat for Public Security.
According to the petitioners, Articles 268-273 of the Brazilian Code
of Criminal Procedure allow the victim or the immediate family to appoint
an Assistant to the Prosecution.
The petitioners contend that this is one of the methods used
by human rights organizations and those with sufficient economic resources
to pressure Brazils notoriously slow judicial system into quicker
action. This individual
(who may also be the victim) can propose arguments about the evidence,
request questions to be put to witnesses, participate in the oral debate
in the case, and participate in the appeals made by the public prosecutors
office or advance his or her own appeals.
The Commission asked the State to take precautionary measures to protect
those threatened persons, as described in this admissibility report,
in the section entitled Request for Precautionary Measures.
In August 2000, the Commission received information, not contradicted
by the Government, that the above-mentioned person was reinstated in
The file contains a copy of the note from the Regular Judge for application
of criminal law, Official Letter 108/96 of October 31, 1996, indicating
that Jorge Luiz Fernandes was authorized to leave prison with a police
escort for conjugal visits of six hours each twice a week.
There is also a note from the Office of the Attorney General
of Natal (RN) accepting the accuseds request for these outings,
dated July 31, 1995.
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, paragraph 164.
The Commission notes that the General Assembly of the OAS resolved on
June 5, 2000 To invite the Inter-American Commission on Human
Rights to continue to pay due attention to the situation of human rights
defenders in the Americas and said it was concerned over
the persistence in the Americas of situations that directly or indirectly
prevent or hamper the work of individuals, groups, or organizations
working to promote and protect fundamental rights. [AG/RES.
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1999, paragraph 164.
Inter-American Court of Human Rights. Godínez
Cruz case. Preliminary
Objections. Judgment of June 26, 1987.
Series C, No. 3, paragraphs 90 and 91 state: 90. 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, paragraph 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 are effective.
91. The record shows that the Government failed to make a timely objection
when the petition was before the Commission and did not object at any
time during the proceedings.
Inter-American Court of Human Rights, Fairén
Garbi and Solís Corrales, Judgment of March 15, 1989. Series C No.
6, paragraph 102.
Commission has in mind resolution AG/RES. 1711 (XXX-O00) of June 5,
2000 on Human Rights Defenders in the Americas, and similar resolutions
in previous years.