Alonso Eugenio da Silva v. Brasil, Case 11.598, Report Nº 9/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 399 (1999).
REPORT Nº 9/00*
ALONSO EUGÉNIO DA SILVA
February 24, 2000
On December 7, 1995, the Inter-American Commission on Human Rights
(hereinafter, the “Commission”) received a petition from the Center for the
Defense and Guaranteeing of Human Rights/Legal Project of the Brazilian Institute
of Innovations in Public Health [Centro de Defensa y Garantía de
los Derechos Humanos/proyecto legal del Instituto Brasileño de Innovaciones
en Salud Social] (I.B.I.S.S.)
against the Federative Republic of Brazil (hereinafter
the “State,” “Brazil,” the “Brazilian State,” or the “State of Brazil”). The
petition denounces the homicide of Alonso Eugenio da Silva, a minor aged 16,
by a military policeman of the State of Rio de Janeiro, in a restaurant in
Madureira, Rio de Janeiro, on March 8, 1992.
According to the petition, the policeman supposedly shot him as he
attempted to arrest him for an alleged robbery. Although more than three and
a half years had elapsed since the incident, the police inquiry into the events
had still not concluded.
The petition denounces the events as grave violations by the Brazilian
State of the rights protected under Article I (right to life), Article XVIII
(right to a fair trial), Article XXV (right of protection against arbitrary
arrest), and Article XXVI (right to due process of law) of the American Declaration
of the Rights and Duties of Man (hereinafter, “the Declaration”); and of the
rights enshrined in Articles 8 and 25 (right to a fair trial and to judicial
protection) of the American Convention on Human Rights (hereinafter, “the
Convention”). The Commission
processed the petition in accordance with its regulations and the State has
submitted no comments in respect thereof.
As indicated in this report, the Commission finds this case admissible
and the acts in question constitute a violation of Articles I, XVIII, XXV,
and XXVI of the Declaration and of Articles 1(1), 8, and 25 of the Convention
and recommends that the investigation be completed, that those responsible
be tried and convicted, and that compensation be provided to the relatives
of the victim.
PROCEDURE BEFORE THE COMMISSION
The complaint was received on December 7, 1995, during the Commission’s
visit to Brazil; it was transmitted on March 22, 1996 to the Brazilian State,
which was requested to comment on the facts under protest and on any other
elements pertinent to the case within a period of 90 days.
On August 28, 1996, the State requested a 30-day extension, and the
Commission allowed 15 days. The
State did not respond thereafter, despite a reiteration of the request on
September 6, 1998, indicating the possibility of applying Article 42 of the
On August 5, 1997, the petitioners informed the Commission that it
had not received any notification from the responsible Brazilian authorities
concerning the conduct of the police investigation and stressed that, under
Article 34, paragraph 6 of the Commission's Regulations the maximum time period
of 180 days for submission of the Brazilian State ’s response had expired
in September of that year.
Processing of friendly settlement
On October 13, 1998, the Commission contacted the parties and placed
itself at their disposal to initiate a process of friendly settlement in accordance
with Article 48(1)(f) of the Convention, but did not receive a positive response
from the parties within the 60-day period allowed.
POSITIONS OF THE PARTIES
Position of the petitioner
According to the complaint, the minor Alonso Eugenio da Silva, born
February 21, l976, and then age 16, was shot and killed by a military police
officer of the state of Río de Janeiro, Nivaldo Vieira Pinto, and by a security
agent accompanying him, in a pizzeria/grill in that city, on March 8, 1992,
at 3:20 p.m., when the police officer and security guard entered the restaurant
after having been alerted to an alleged assault.
The victim, a hotel employee up to a few days earlier, was a member
of a youth project known as “Flor de
Mañana”. The petitioners
characterize the death as “extermination”.
The petitioners indicate that the official version of the facts comes
from the documents of the investigation opened at police station #28 on March
9, 1992. According to those documents,
the police officer stated he was forced to fire on the minor because he was
resisting arrest for assault on the restaurant. In the report on resisted arrest 48/92 (files 13 and 14) a
police officer and a witness described the events as follows:
“Alerted by a bystander that a person of suspicious demeanor had entered
the pizzeria, [the two police officers] left the police booth where they were
on duty and made their way into the kitchen, where they found Alonso and asked
him what he was doing there. In
replying, Alonso moved his hand toward his waist, whereupon the police officer
drew his pistol and fired while, simultaneously, Alonso fired as well (file
14). Alonso was hit by the shot and the police officer maintained
that he provided medical attention while moving the victim to the hospital.
It is also noted in the police report that two firearms were requisitioned,
one of them a “service” arm, and that each of them contained five unfired
cartridges and one fired shell (file 15).
The petitioners, on the other hand, maintain that the circumstances
were otherwise. They assert that the events took place in broad daylight when
the restaurant was filled with customers.
Members of Alonso’s family maintain that the waiters in the pizzeria
where the death took place had told them that Alonso had gone to buy a hot
sandwich and was unable to show a receipt when he left.
One waiter believed him and let him go, but another did not believe
him, and an argument ensued. They maintain that someone called the police officer, who entered
and fired at point blank range. The
person who heard this from the waiters maintained that it was someone from
restaurant security who was called and who killed Alonso.
She states that “the place is full of security staff, and if there
is a problem, they don’t have to call the police”.
She also states that the owner of the restaurant himself said “this
is cowardice, killing a person like that unnecessarily”.
According to the petition, several friends and relatives attending
the funeral heard that when Alonso’s body reached the hospital, the doctor
said: “the boy’s gun; he was
a nobody; don’t you see that this is a police gun?”
The petition points out that the Police Commissioner did not call for
an expert examination of the shooting site (the restaurant kitchen) maintaining
that the investigating detectives had not found bullet marks on the premises.
The petition also indicates that Alonso had confided earlier to several
relatives that he had had an altercation with a police officer in Madureira
and was very fearful of reprisals. Alonso
allegedly confided in his relatives that the police officer wanted Alonso
to respond to his advances (which the petitioner implies were sexual in nature),
that Alonso was offended and reacted by throwing the shoeshine box he was
carrying at the police officer’s face.
The petition indicates further that an uncle of Alonso had stated that
Alonso arrived at the hospital in a fireman’s ambulance, and the doctor announced
that he was already dead; that Alonso had a work identity card and was carrying
it that day when he left home, but it could not be recovered or found at the
hospital or anywhere else. (File
The complaint points out that up to a few days earlier, Alonso had
worked in a hotel, but had lost his job.
In addition, he was a member of a youth project entitled Flor
de Mañana (file 12).
The petitioners affirm that when they attempted to obtain information
on the course of the police investigation at Station 28, they were informed
that the file had been misplaced. The
petitioners requested information from Station 28 on the status of the investigation
on December 5, 1995, and again on March 29, 1996, but without success.
The petitioners argued that the requisitioned firearm did not belong
to the minor but to the police officers.
They reaffirm that Alonso’s family members feared for his life, since
on another occasion he had argued and fought with a police officer.
With respect to admissibility, the petitioners allege unwarranted delay,
since the investigation has not been completed 3 and a half years after the
events. They request application
of the exception in Article 46(2)(c) of the Convention to the exhaustion of
domestic remedies requirement. They
also maintain that the investigation proved ineffective, since there was abundant
evidence and numerous witnesses never pursued in the case, that a serious
and prompt investigation should have been conducted, but that the police officers
assigned to the case did not conduct such an investigation in order to cover
up the police operation and their complicity in the unjustified assault on
The petitioners also request that the Commission recommend the Brazilian
State to complete the investigation, try, and punish the perpetrators of the
violations; and that the victim’s relatives be compensated.
Position of the State
18. The Brazilian
State did not submit a written response commenting on the complaint.
The Commission also notes that the Brazilian State has not responded
to the presentation of facts in the complaint, despite several notes from
the Commission requesting it to do so, and despite the fact that the time
periods established in the Convention and the Commission’s Regulations for
such responses have long since expired. The State’s silence on this point
is contrary to its obligation as a State Party to the American Convention
with respect to the Commission’s authority to “take action in respect of petitions
and other communications in the exercise of its authority under Articles 44
to 51 of the Convention…”.
ANALYSIS OF ADMISSIBILITY
19. The Commission
has jurisdiction ratione materiae and ratione temporis, inasmuch as the case concerns
rights protected by the American Declaration and Convention at a time when
they were in force in the Federative Republic of Brazil.
The Commission recalls that, although the events took place on March
8, 1992, a number of months before Brazil ratified the Convention on September
25, 1992, the Brazilian State is not exempt from responsibility for acts violating
human rights occurring prior to ratification of the Convention, since the
rights guaranteed by the Declaration were binding.
The Inter-American Court of Human Rights explicitly recognized the
binding character of the Declaration when it stated “Articles 1(2)(b) and
20 of the Commission’s Statute define the Commission’s jurisdiction with respect
to the human rights enshrined in the Declaration.
In other words, for States that ratified the Buenos Aires Protocol,
the American Declaration constitutes a source of international obligations
under the Organization’s Charter.”
The Commission also has jurisdiction in this case to analyze the judicial
guarantees and due process recognized by Articles 8 and 25 of the Convention
subsequent to ratification, since the facts targeted by the complaint potentially
represent continued denial of these rights since that time.
In depositing its instrument of accession to the Convention, Brazil
undertook to respect the rights and freedoms recognized therein and to ensure
their full and free exercise to all persons subject to its jurisdiction (Article
With respect to jurisdiction ratione
personae, the same Article 1(1) of the Convention implies that any impairment
of those rights, 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.
The case in question concerns allegations of violations of several
human rights protected by the Declaration and the Convention, violations committed
by agents of the State, and in particular by the military police of the state
of Río de Janeiro, as far as the death is concerned, and by the military and
civil police of that state as far as the investigation is concerned--also
because of the responsibility of the State Public Ministry for supervising
the investigation’s activities, compliance with deadlines, and soundness.
Accordingly, the Commission concludes that it has jurisdiction ratione
The present petition meets the formal requirements for admissibility
under Articles 46(1)(c) and 46(1)(d) of the Convention and Article 32 of the
Commission’s Rules of Procedure. The
Commission has no knowledge that the matters covered by the petition are pending
a solution, or have been the object of a decision, by any other international
Exhaustion of domestic remedies
24. According to
Article 46(1)(a) of the Convention, in order for a petition to be admissible
by the Commission, domestic judicial remedies must first have been exhausted
in accordance with the principles of international law.
Paragraph 12 of that same Article, however, allows for exceptions when:
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
the party alleging violation of his rights has been denied access to
the remedies under domestic law or has been prevented from exhausting them;
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
The petitioners point out that, although the police investigation began
on March 9, 1992, and more than 3 and a half years had passed by the date
of the petition, the investigation still had not been completed.
Brazilian criminal legislation establishes a period of 30 days to complete
police investigations, which may be extended by authorization of the judge. There was no such extension in the instant case.
For the purposes of admissibility, the Commission considers that the
police investigation has been prolonged to an excessive degree, without any
sign that the government intends to intensify or accelerate it.
The Commission therefore accepts the hypothesis that the exception
to exhaustion of domestic remedies established in Article 46(1)(a) is applicable,
based on the unwarranted delay in rendering a final judgment under the aforementioned
remedies, in accordance with Article 46(2)(c) of the Convention and 37(2)(c)
of its Regulations.
The Commission notes that, to date, the Brazilian State has not presented
its response to the petition, although the Commission has reiterated its requests
beyond the conventional time period stipulated in its Regulations.
The Commission interprets this silence as a tacit waiver of the right
to invoke a failure to exhaust domestic remedies under Article 46 of the Convention.
Timeliness of the petition
27. Under Article
38 of the Regulations, in the presence of an unwarranted delay in the administration
of justice the exception contemplated in Articles 46(2)(c) of the Convention
and 37(2)(c) of the Regulations applies in respect of the requirement stipulating
a period of six months for presentation of a petition to the Commission reckoned
from the date on which the injured party has been notified of the final decision.
Since it was received three years after the alleged violation of rights
occurred, the Commission considers that the petition was presented within
a reasonable period of time under the aforementioned Article 38(2).
ANALYSIS OF THE MERITS OF THE CASE
The silence on the part of the State concerning this petition contradicts
its obligation as a State Party to the American Convention with regard to
the functions of the Commission to “take action on petitions and other communications
pursuant to its authority under the provisions of Articles 44 through 51 of
this Convention”. The analysis
that follows is done based on the elements in the record before the Commission.
Taking into consideration Article 42 of the Commission’s Regulations,
noting that during the maximum time period set in accordance with Article
34(5) of the Regulations, the State has not provided the information requested.
The Commission has analyzed the available evidence presented by the
petitioners, which was not contradicted by the State, and makes the following
A. Right to life, liberty, and
security of the person (Article I of the Declaration)
29. The death of
the minor da Silva occurred on March 8, 1992.
At that time, the American Declaration was in force in Brazil.
Article I of the Declaration provides: “Every human being has the right
to life, liberty and the security of his person.”
In the instant case, there is abundant evidence in the police reports
that the military police officer Nivaldo Vieira Pinto himself declared that
he had shot and killed the minor Alonso Eugenio da Silva, although he maintains
that he did so in self defense. The
file contains copies of the statements by military police officer Nivaldo
and another witness, interrogated at civil police station 28 (files 13-18).
The petitioner indicates that the shots could have come from the police
officer or from the private security agent.
There is nothing in the Commission’s file to support the contention
that it was the security agent who had fired; and if that had been the case,
the responsibility of the police officer would be complicated still further.
Not only was he present when the act took place, but afterwards assumed
responsibility for it, presumably to cover up the crime and make it appear
to be legitimate police intervention.
In his report of the incident (file 14), Officer Nivaldo maintains
that he shot Alonso because the minor moved his hands toward his waist after
the police officer asked him what he was doing in the restaurant.
Later, in his statements, this police officer affirmed that there was
an exchange of fire between him and the minor and that the minor was hit by
one of his shots. According to a police report, an inspection of the site did
not find traces of gunfire aside from the shot that hit the victim.
The report of the incident filed at the police station refers to the
requisition of a firearm belonging to the minor Alonso.
However, the petitioners argue that Alonso did not own a firearm.
The doctor who received the body allegedly had said that the weapon
in Alonso’s possession when he arrived at the hospital was not his, but a
police weapon. That characterization
is plausible. An additional element
contradicting the police version of legitimate defense is that no trace of
any shots fired by the victim was found, according to the police report.
This is noted in the judicial file itself (files 13-14), according
to which the second revolver contained a fired cartridge.
All of this leads the Commission to the conclusion that the second
gun had been fired by the police and placed on the victim to implicate him.
Moreover, the lack of any evidence of this other gunshot was used as
police justification for not conducting an expert inspection of the site normally
required in a case of this kind.
With regard to motive, several witnesses maintain that the victim had
quarreled with a police officer in rejecting his advances and that he was
living in a state of fear. In
addition, based on numerous investigations, the Commission has observed generally
that the military police of several Brazilian states, including Río de Janeiro,
have repeatedly shown a disregard for the lives of poor minors, and that it
is not implausible that they might shoot them under any pretext to “exterminate
them”. Although that tendency
cannot in itself provide grounds for a conclusion, it is an important element
of plausibility supporting the concrete facts in the case.
The Commission has also noted that during those years, the persecution
and extermination of street children and youths was a frequent practice in
Río de Janeiro among government or private security agents, for personal reasons
or, supposedly, for the purpose of “social cleansing”.
The Commission has denounced this practice, which constitutes one of
the most horrible systematic violations of the right to life and humane treatment,
and amounts to a failure by the State to perform its obligation of guaranteeing
the rights of all persons, and in particular the rights of children and young
In analyzing the case, the Commission regards the testimony and evidence
in the file as the main grounds for determination of the case.
However, it believes it must mention this general situation to make
it clear that this was not an isolated and anomalous case, but an example
of a systematic attitude among certain police officers during that time.
The Commission must consider that the shot fired by the security agent
that cost the victim his life could have been fired out of necessity to avoid
a serious crime, or constituted an act of legitimate defense by the police
officer. The Commission takes
into account the “Basic Principles on the use of Force and Firearms by Law
Enforcement Officers”, which clearly define the legitimate uses. Although
the State has not made such an argument in its defense, the Commission believes
this point must be addressed. There
is no convincing evidence in the case supporting either of these hypotheses,
nor any evidence that the youth was armed or was threatening the life of the
police officer or other persons. Killing
persons presumed to be committing acts of theft is not how security forces
are expected to react, except in circumstances of extreme danger or legitimate
defense. Moreover, there is evidence
that this police officer had had prior confrontations with this young person.
There is no information indicating that required investigative procedures
were followed in respect of evidence and testimony that should have been gathered
immediately after a homicide and which might have clarified the question of
Based on the testimony and evidence in the file, and that presented
earlier, the Commission considers that there is sufficient evidence to conclude
that a Río de Janeiro police officer violated the right to life of Alonso
Eugenio da Silva on March 8, 1992 in that city.
Right of protection from arbitrary arrests (Article XXV of the Declaration)
The petitioners allege violation of Article XXV concerning arbitrary
arrest. The Commission has interpreted
the complaint as characterizing a violation of the right to life through an
abuse of police power. There
are no elements supporting the characterization of the acts in question as
an arrest; accordingly the Commission considers the petition’s arguments on
this point to be unfounded.
Rights to a fair trial and judicial protection and the obligation to
respect rights (Article XVIII of the Declaration) and (Articles 8, 25, and
1(1) of the Convention)
37. Article XVIII
of the American Declaration, an instrument in force and applicable to the
impugned acts prior to ratification of the Convention on September 25, 1992,
person may resort to the courts to ensure respect for his legal rights. There
should likewise be available to him a simple, brief procedure whereby the
courts will protect him from acts of authority that, to his prejudice, violate
any fundamental constitutional rights.
Although the petitioners did not invoke Articles 8, 25, and 1(1) of
the Convention, it is the opinion of the Commission that these provisions
should also be examined in accordance with the general principle of international
law jura novit cura, under which
international organizations have the power and even the duty to apply all
of the juridical provisions relevant to a proceeding, even when the parties
do not expressly invoke them.
Article 25 of the Convention provides the following:
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.
Article 8 provides that every person has the right to a hearing, with
due guarantees, and within a reasonable time, by a competent, independent,
and impartial tribunal. Under Article 1(1) of the Convention, the States Parties undertake
to respect the rights and freedoms recognized in the Convention and to ensure
to all persons subject to their jurisdiction the free and full exercise of
those rights and freedoms.
The Commission has indicated earlier that when, as in the instant case,
the victim is not in a position to seek judicial remedy, the right to such
recourse necessarily transfers to the victim’s next-of-kin.
The Commission has reached the conclusion that the victims and/or their
next-of-kin are entitled to a judicial investigation entrusted with a criminal
court to determine and establish responsibilities in cases of human rights
This stems from the legal duty of the State to “use the means at its
disposal to carry out a serious investigation of violations committed within
its jurisdiction to identify those responsible, impose the appropriate punishment
and ensure the victim adequate compensation”.
The Inter-American Court of Human Rights has expressed its opinion
concerning the duty of the State to investigate acts violating human rights
protected by the Convention:
duty to] investigate, like the duty to prevent, is not breached merely because
the investigation does not produce a satisfactory result.
Nevertheless, it must be undertaken in a serious manner and not as
a mere formality preordained to be ineffective.
An investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that depends
on the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.
In the instant case, the investigation appears to be biased towards
legitimizing the conduct of the police in the death of Alonso Eugenio da Silva,
and did not include essential regulatory procedures.
There was no serious investigation of the alleged resistance of the
minor, even though the owner of the restaurant himself had protested saying
that there was no need to kill him.
Nothing in the file shows that a statement was taken from the owner,
waiters, and other persons present in the restaurant, taking into account
that the events took place in the middle of the afternoon in a very busy place.
No expert investigation into the facts took place on the premises,
nor was the restaurant closed until such an investigation had been completed.
Nor is there convincing evidence that the victim was armed, except
the appearance of a gun containing a fired cartridge next to the body when
it arrived at the hospital. There was no serious investigation as to why, if gunfire was
exchanged (as the police officer said), no trace of the shot
(except for the fatal shot) was found in the preliminary inspection
of the premises. Nor was there
a serious investigation into the opinion expressed by the doctor who received
the victim’s body when he said that the weapon could not have belonged to
the minor. There was no investigation
to determine whether the minor had had previous confrontations with the police
officer in question, and particularly the episode involving the alleged offense
against the minor and his aggressive response to the police officer.
There was no investigation into the background of the police officer
with respect to other minors, who could have shed light on the motive for
his action. These elements lead
the Commission to the conclusion that the investigation was not conducted
with the guarantees of seriousness required by Article 25 of the Convention.
Those judicial guarantees must also be analyzed with respect to the
alleged delays in the investigation of the facts.
To determine whether the time taken was reasonable
under Articles 8 and 25 of the Convention, the Commission must undertake a
comprehensive analysis of the police investigation in question.
In the Inter-American system for the Protection of Human Rights there
are provisions concerning the period of time that can be reasonably taken
to solve cases of human rights violations.
The American Convention stipulates a series of guarantees that must
be provided in every judicial investigation process, to ensure that it is
resolved within a reasonable period of time.
Article 8(1) provides that:
person has the right to a hearing, with due guarantees and within
a reasonable time, by a competent, independent, and impartial tribunal.
(emphasis added by the Commission)
Article 25 provides that:
has the right to simple and prompt recourse (…) to a competent court or tribunal for protection
against acts that violate his fundamental rights. (emphasis added by the Commission)
The Commission and the European Court of Human Rights, as well as the
Inter-American Commission, have established a series of criteria or considerations
that must be taken into account to determine whether an unwarranted delay
has occurred in the administration of justice, “which does not mean that in
a particular case any particular one of these criteria will not prove the
Jurisprudence has established the following criteria to determine whether
such a period of time is reasonable:
(1) the complexity of the case; (2) the conduct of the injured party
in terms of his cooperation in the course of the proceedings; (3) the form
in which the preliminary investigation of the proceedings has been carried
out; (4) the activities of the judicial authorities.
To conduct an appropriate analysis of the complexity of the case, it
is necessary to refer to the substance of the case: the violation of the right
to life. Here we encounter a
single presumed crime, homicide, under defined and simple circumstances.
These characteristics are such that the instant case is not complex
and is easy to investigate. The
jurisprudence applied by the Inter-American Commission on Human Rights in
case 10.037 (Firmenich) is instructive: it declared the complaint inadmissible
because the particular characteristics of the case and the complexity of the
factors contributing to it were such that no unwarranted delay in the administration
of justice could be asserted.
In another case before the Commission, a State referred to the complexity
of the dispute, arguing that the investigation had not been completed because
of the extreme gravity of the impugned acts, the complexity of the situation,
and the seriousness with which the competent authorities undertook its examination
and clarification. In that case,
the Commission considered the facts that more than two years had passed since
the events had occurred, that up to the time of the complaint no criminal
prosecution had taken place, and that there was no sign of any such action
about to take place, which it concluded clearly demonstrated a failure to
conduct a serious and effective investigation.
According to the information in the possession of the Commission, the
police investigation began on March 9, 1992, and remains open to this day.
More than six years have passed, and the Commission has not received
information indicating that it has been completed, although Brazilian law
establishes that the investigation should be completed within 30 days.
In the instant case, it was the responsibility of the Public Ministry
to enforce the law in respect of judicial acts and time periods, and to require
an investigation by the police department responsible, but it did not do so.
And in October 1994, the police authorities indicated that the investigation
file had been misplaced. The
petitioners requested information twice on the status of the investigation,
but did not receive a response from the local authorities.
It can be seen in the file that more than six years have passed since
the events took place, five of them at a time when the Convention was in force,
and yet the investigation still has not taken place and criminal prosecution
has not been instigated.
According to the Inter-American Court of Human Rights, this duty consists
duty of the State 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…
Thus, in depositing its instrument of ratification of the Convention,
Brazil assumed the international obligation to respect the rights to a fair
trial and judicial protection so as to prevent, investigate, and punish any
violation of the rights enshrined in the Convention.
Article 1(1) of the Convention, in turn, provides that the States Parties
to the Convention undertake to respect the rights and freedoms recognized
in the Convention and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms.
Accordingly, the Commission considers that the ineffectiveness, negligence,
or omission by the authorities in the investigations, which resulted in an
unwarranted delay in the completion of the police investigation, not only
exempted the petitioners of the obligation to exhaust domestic judicial remedies,
as already noted above in relation to admissibility, but also violated Article
XVIII of the Declaration and Articles 8 and 25 of the Convention, by depriving
the victim’s next-of-kin of the right to obtain justice within a reasonable
period of time by means of simple and prompt recourse.
PROCEEDINGS SUBSEQUENT TO REPORT 22/99
Commission transmitted the previous report to the State on March 24, 1999,
granting it a period of two months in which to comply with the recommendations
formulated. Furthermore, the Commission notified the petitioners of the approval
of a report under Article 50 of the Convention. The period granted having
elapsed, the Commission has not received a response from the State in respect
of the said recommendations.
53. The Commission
concludes that it is competent to take cognizance of this case and that the
petition is admissible, in accordance with Articles 46 and 47 of the American
Convention, and Article 1 and 20 of its Statute.
54. Based on the foregoing facts and analysis, the Commission concludes that the Federative Republic of Brazil is responsible for violation of the rights to life (Article I) and to a fair trial (Article XVIII) recognized in the American Declaration of the Rights and Duties of Man; as well as of the right to a fair trial and judicial protection (Articles 8 and 25) and of the obligation of the State to ensure and respect rights (Article 1(1)) enshrined in the American Convention on Human Rights in connection with the murder of Alonso Eugenio da Silva by a military policeman of the State of Rio de Janeiro; and for failure to investigate and effectively punish those responsible.
Based on the foregoing analysis
and recommendations, the Inter-American Commission on Human Rights reiterates
the following recommendations to the State of Brazil:
1. To conduct a
complete, impartial, and effective investigation to determine the circumstances
in which the death of the minor Alonso Eugenio da Silva took place; to investigate
the irregularities in the subsequent police investigation and the activities
of the Public Ministry and judicial authorities; and to punish all those responsible
in accordance with Brazilian legislation.
2. To adopt the
measures necessary to enable the victim’s next-of-kin to receive adequate
and timely compensation for the violations established herein.
The Commission transmitted the report adopted pursuant to Article 51
of the American Convention to the State and to the petitioner on October 15,
1999, and gave the State one month to submit information on the measures adopted
to comply with the Commission’s recommendations.
The State failed to present a response within the time limit.
56. 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 53 and 54, 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.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 24th day of the month of February in the year 2000. (Signed): Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
Pursuant to Article 19(2)(a) of the
Commission’s Regulations, Commission Member Hélio Bicudo,
a Brazilian national, did not participate in the discussion or voting
on this case.
Advisory Opinion of the Inter-American Court of Human Rights, paragraph
45, July 14, 1989 on “the interpretation of the American Declaration on
the Rights and Duties of Man in the context of Article 64 of the American
Convention on Human Rights”.
“…the doctrine established by the European Commission and the Human Rights
Committee of the Civil Rights Pact is applicable to the American system.
According to this doctrine, these organs declared themselves competent
to review facts prior to the Convention’s entry into force for a particular
State, provided that these acts are of a nature to have constituted continued
violation of the Convention beyond the aforementioned date.”
Andrés Aguilar, Derechos
Humanos en las Américas, note 8, page 202.
The rule of prior exhaustion of domestic remedies under the international
law of human rights has certain implications that are present in the Convention.
Under the Convention, States Parties have an obligation to provide
effective judicial remedies to victims of human rights violations (Artícle
25), remedies that must be substantiated in accordance with the rules
of due process of law (Article 8(1), all in keeping with the general obligation
of such States to guarantee the free and full exercise of the rights recognized
by the Convention (Article 1). Thus,
when certain exceptions to the rule of non-exhaustion of domestic remedies
are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is under
no obligation to pursue such remedies, but, indirectly, the State in question
is also charged with a new
violation of the obligations assumed under the Convention.
Thus, the question of domestic remedies is closely tied to the
merits of the case.
Court of Human Rights, Velásquez Rodríguez case, Judgment of July 26,
1987, preliminary exceptions, paragraph. 91).
Inter-American Court of Human Rights, Velázquez Rodríguez, Judgment of
July 29, 1988, paragraph. 164.
IACHR, Viviana Gallardo case, September 13, 1981, paragraph. 16; Velázquez
Rodríguez, paragraph 88; Caballero Delgado and Santana, preliminary exceptions,
Judgment of January 21, 1994, paragraph. 66.
Scholarly commentary on this question includes the following:
that the right in question can be waived, even tacitly, it must be assumed
that there has been an opportunity to exercise it, and that opportunity
is in fact that available during the admissibility phase of the petition
before the Commission. Accordingly,
if, due to the negligence, carelessness, or ignorance of its attorneys
the impugned State does not argue failure to exhaust domestic remedies
in that stage of the process, it may not do so subsequently before the
Commission or the Court.” (Faúndez L. Hector, “El
Sistema interamericano de protección de los derechos humanos, aspectos
institucionales y procesales”, page 198, IIDR, 1998).
“The rights of minors and children”, Report on the Human Rights situation
in Brazil. IACHR, Washington,
D. C., September 1997.
United Nations. “Basic Principles…” adopted by the 8th
Congress on Crime Prevention and Treatment of Offenders. Havana,
Cuba, August 27th to September 7, 1990.
The following paragraphs apply in particular:
enforcement officers will not use firearms except in self defense or the
defense of others against imminent threat of death or serious injury;
to prevent the execution of a crime particularly grave involving serious
death threat; to arrest someone that presents such danger and resists
the authority, or to prevent his/her escape, and only when other meassures
less extreme are insufficient to achieve those goals.
In all cases, the intentional use of firearms can only be accomplished
when strictly inavoidable to protect human life.
the cases indicated in Principle 9, law enforcement officers shall identify
themselves as such and give clear notice of their intent to use firearms,
with enough time for the notice to be received, except when to do so may
unduly put in risk the law enforcement officer, or it could create a death
risk or risk of serious injury to others, or it will be clearly inappropiate
or not useful in the circumstances of the incident.
Inter-American Court of Human Rights. Velásquez Rodríguez case, Judgment
of July 29, 1998, paragraph 163, citing the Permanent Court of International
Justice, “Lotus” case, Judgment no. 9, 1927, series A. no. 10, p. 31,
and European Court of Human Rights, Handyside case, Judgment of September
7, 1976, series A. no. 24, paragraph. 41.
See, in general,
Reports Nos. 28/92 (Argentina) and 29/92 (Uruguay) in the IACHR Annual
Report 1992-93, OEA/Ser.L/V/II.83, doc. 14 corr.1, March 12, 1993, pp.
Velásquez Rodríguez case, supra,
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, paragraph. 177, p. 156.
“The right to a trial within a reasonable time provided for in the American
Convention is based, among other things, on the need to avoid undue delays
that translate into a deprivation and denial of justice to the detriment
of persons who argue that their rights protected in the American Convention
have been violated.” (Report 43/96, case 11.411, Mexico, page 483, paragraph
30, Annual Report 1996 IACHR).
See, for example: IACHR,
Resolution Nº 17/89 Report Case Nº 10.037 (Mario Eduardo Firmenich), in
Annual Report of the Inter-American Commission on Human Rights 1988-1989,
page, 38; European Court of Human Rights: Case “Konig”, Judgment of 28 June 1978, Series A Nº 27, pages
34 a 40 paragraphs 99, 102-105 y 107-111; Case Guincho, Judgment of 10
July 1984, Series A, Nº 81, page 16, paragraph 38; Unión
Alimentaria Sanders S.A., Judgment of 7 July 1989, Series A, Nº 157,
page 15, paragraph 40; Case Buchholz, Judgment of 6 May 1981, Series A
Nº 42, page 16, paragraph 51, pages 20-22, paragraphs 61 y 63; Case Kemmache,
Judgment of 27 November 1991, Series A Nº 218, page 27, paragraph 60.
IACHR, Annual Report 1997. Page 655 et seq. (report
48/97 case 11.411 “Ejido Morelia”, paragraphs 46-48).
 Inter-American Court of Human Rights, Velásquez Rodríguez, Judgment of July 29, 1988, paragraph 166.