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5. Report on the merits
REPORT Nº 23 /02 CASE 11.517 DINIZ BENTO DA SILVA BRAZIL February 28, 2002
I.
SUMMARY 1.
On July 5, 1995, the Inter-American Commission on Human Rights
(hereinafter the “Commission”) received a complaint from the Comissão Pastoral da Terra, do Centro
de Justiça e o Direito Internacional [Pastoral Land Commission, Center
for Justice and International Law] (CEJIL) and from Human Rights
Watch/Americas (hereinafter the “Petitioners”), alleging violations of the
rights enshrined in the American Convention on Human Rights (hereinafter
the “Convention” or “American Convention”) by the Federative Republic of
Brazil (hereinafter “Brazil”,
“Brazilian State“, or “State”), in connection with the death of
Diniz Bento da Silva, nicknamed Teixeirinha, a member of the “landless”
workers’ organization,[1] at the hands
of the military police of Paraná state, on March 8, 1993.
2.
The petitioners allege violations of Article 4 (right to life),
Article 5 (right to integrity of person), Article 8 (judicial guarantees),
Article 11 (protection of honor and dignity), and Article 25 (judicial
protection), in conjunction with Article 1(1) (obligation to guarantee and
respect the rights established in the Convention). 3.
The Commission has decided to admit the case and is of the opinion
that the military police of Paraná state summarily executed Mr. Diniz
Bento da Silva in retaliation for the death of other military police
during a confrontation between the latter and landless workers, and that
the State covered up the facts by prolonging inefficient investigations
for more than seven years. The Commission concluded that the Brazilian
State is responsible for violation of Articles 4, 8, 25, and 1(1) of the
American Convention. The Commission also advises the State to conduct a
complete investigation to determine the circumstances surrounding the
death of Diniz Bento da Silva as well as the irregularities of the police
inquiry. The Commission also recommends that the State take steps to
compensate the victim’s family. II.
PROCEEDINGS BEFORE THE COMMISSION 4.
The case was opened on July 24, 1995 with a request for information
from the State on the facts alleged by the petitioners. The State responded on June 27, 1996 and the
petitioners in turn submitted their observations on September 23, 1996,
and these were remitted to the State on October 29, 1996. On October 7, 1996, a hearing was
held, in which both parties submitted additional information. The
petitioners submitted further information on June 26, 1998, and on
November 30, 1998, the State presented its comments. On November 22, 1999,
the petitioners filed their comments in response to the State. The
Commission requested final comments from the State on the petitioner’s
allegations on December 14, 1999 and again on May 2, 2000, but the State
failed to respond to these requests. A.
Friendly Settlement
5.
On October 7, 1996, the Commission held a hearing, formally
offering its services to the parties for a friendly settlement, to no
avail since the parties could not reach an agreement. Consequently, the
Commission found that the circumstances did not permit a friendly
settlement at that stage of the process. III.
POSITION OF THE PARTIES A.
Position of the petitioners 6.
The petitioners allege that Mr. Diniz Bento da Silva was killed on
March 8, 1993 by members of the military police of Paraná state even
though he was unarmed and had surrendered without resisting. The
petitioners report that Diniz Bento da Silva was being sought by the
police because he had been accused of killing a military police office in
a confrontation between “landless” workers and the police at the Santana
Ranch in Campo Bonito, Paraná state, five days before his death. The
petitioners indicated that, before March 8, 1993, military police had
committed other acts of intimidation and torture in the “landless” workers
community in an attempt to locate Diniz Bento da Silva, including
threatening his son. According to the petitioners, Diniz Bento da Silva
was executed extrajudicially by the military police in retaliation for the
death of military police officers. 7.
The petitioners reported that a military police inquiry was
initiated on March 12, 1993 and ended on April 5, 1993, concluding that
there was insufficient evidence of military crimes, as defined in the
Military Penal Code. They stated that the case was referred to a Military
Tribunal in Paraná on May 12, 1993 and that only 10 months later did the
Public Prosecutor’s Office in Curitiba decide that the inquiry should be
closed on grounds that the military police acted strictly in the line of
duty, as the judge of the tribunal who reviewed the petition determined
that the case should be closed on March 8, 1994. 8.
The petitioners state that on September 30, 1994, they requested
the reopening of the inquiry, based on the statements made to the Public
Prosecutor’s Office by journalist Adalberto Maschio, who had been assigned
to cover the case. The journalist states that when he visited the Campo
Bonito Police Station three days before the crime occurred, he heard the
military and civil police authorities saying that they would get Diniz
Bento da Silva dead or alive.[2] One year and
six months later, on May 3, 1996, the Public Prosecutor’s Office denied
the petition on grounds that the evidence was not new and the military
judge kept the inquiry closed, by decision of May 27, 1996.
9.
In their additional information, the petitioners included a
statement by Diniz Bento da Silva’s son to the Commission describing how
the police held him so that he would show them where his father was
hiding, that he saw his father led away handcuffed and unarmed by the
police, thus he knew that his father could not have accosted the police.
10.
The petitioners allege that the Human Rights Defense Council of the
Justice Ministry (hereinafter the CDDPH) visited the scene of the crime
March 11-13, 1993, to monitor the investigations and that the Minister of
State for Justice and President of the CDDPH decided to open an
administrative procedure to determine the circumstances surrounding the
death of Diniz Bento da Silva. 11.
The petitioners argued that the expert report prepared at the
request of the CDDPH and completed on August 7, 1995 found a number of
irregularities in the conduct of the investigations, but that said expert
report was never publicized by the Brazilian government. The petitioners
added that the irregularities included: a) failure to seal off the crime
scene and lack of the corresponding expert analysis; b) no data on the
report of the Forensic Institute regarding the trajectory, direction, or
distance of the shots fired at the victim; c) failure to collect samples
from the victim’s hands to verify his alleged reaction; d) need to exhume
the body and write another report; d) need for expert analysis of the tape
recorded by the journalists; e) lack of ballistic results on the weapons
involved. According to the petitioners’ allegations, although the report
recommends conducting additional technical tests, five years later, the
tests had still not been done. The petitioners argue that the existence of
this report shows that the public authorities in Brazil were fully aware
of the irregularities that occurred during the military police
investigation and of the need to issue orders as the only way of gathering
substantial evidence to warrant the reopening of Military Justice
investigations. 12.
The petitioners reported that they repeatedly requested that the
inquiry be opened, after public statements had been made by the Secretary
of Labor of the Paraná Government, Joni Varisco, who accused the former
governor of the state, Roberto Requião, of involvement in the crime. The
request for the inquiry to be reopened was submitted to the State Public
Prosecutor’s Office in August 1997 under the new law (Law 9299/96), which determined
that the ordinary justice system had jurisdiction in intentional crimes
against life, committed by military police. On March 3, 1998, the Public
Prosecutor requested reopening of the inquiry in light of accusations by
the Secretary of Labor that the “death of Diniz Bento da Silva had not
resulted from conduct in the strict performance of their duties under the
law, but was indeed an execution ordered by the Governor of Paraná state,
Roberto Requião,” thereby constituting evidence that would warrant the
reopening of the case. The state judge ruled that the inquiry be reopened
on March 9, 1998. The petitioners alleged that the investigations resumed
on May 18, 1998, five years after the crime had been committed. The
petitioners added that the deadline for completion of the investigations
was extended more than twice and that, up until November 1999, the inquiry
had still not been completed. 13.
The petitioners reported that the family of Diniz Bento da Silva
filed a civil suit for damages against Paraná State in the state courts,
to establish the liability of the military police, but that the Public
Prosecutor’s Office denied the petition. 14.
Regarding the exhaustion of domestic remedies, the petitioners
argued that the case should be admitted given the ineffectiveness of
domestic remedies and the undue delay in reaching decisions through the
remedy envisaged in Article 46(2)(c) of the Convention. On that point, the
petitioners allege that domestic remedies proved ineffective because there
were irregularities in the investigations and failure to produce the
additional evidence necessary to proceed with the investigations. With
respect to the undue delay in the pursuit of domestic remedies, the
petitioners allege that, despite the reopening of the investigations in
May 1998 said remedies were still pending one year prior to the reporting
date. 15.
As to the ineffectiveness of domestic remedies, the petitioners
allege that the expert report provided and the request of the CDDPH shows
that there were irregularities during the investigations with the military
police and recommended that additional technical evidence be sought, but
that the State did not proceed with such discovery to determine the
circumstances surrounding the death of the victim. B.
Position of the State 16.
The State reported that Diniz Bento da Silva was accused of
qualified homicide of military police and that his death occurred during a
military police operation in Paraná state, aimed at his capture. It
reported also that although military police inquiry 245/93 was opened, it
was closed by the judge of the military tribunal on March 8, 1994, having
received the opinion of the Public Prosecutor’s Office ruling out any
unlawful act, in other words, stating that the police officers had acted
strictly in the line of their legal duty. The State also indicates that
the military justice system considered that the new evidence presented and
requests by the petitioners were not sufficient to justify the reopening
of the inquiry and that, on August 25, 1997, the appeal was submitted ton
the ordinary courts for consideration under the new Law 9299/96, which
reopened the inquiry on March 9,1998. Finally, the State alleges that
new depositions were taken on May 11, 1998 and again on August 18, 1998,
and that the government intended to continue with the police inquiry and
taking new statements from the press officers who witnessed the incident
and other witnesses who did not have the opportunity to submit statements
during the previous investigation. 17.
The State argues that the police inquiry was carried out in
accordance with Brazilian legislation, that the determination to reopen
the case results in a new police inquiry, with investigations conducted by
the civil police and monitored by the Pubic Prosecutor’s Office and that,
consequently, domestic remedies had not been exhausted, as the new police
inquiry is the appropriate legal channel for investigation the facts
alleged by the petitioner.
18.
In respect of the civil suit for damages, the State reports that it
was temporarily suspended by the presiding judge until the related
criminal action was decided. According to the State, Brazilian legislation
admits the trial of a civil suit for damages independently from the filing
of a criminal action, while enabling the judge in the civil action for
damages to suspend it until the criminal suit is heard. IV.
ANALYSIS OF ADMISSIBILITY A.
Competence ratione materiae,
personae, temporis and loci 19.
The Commission has competence ratione personae to review the
report because the petition shows the alleged victim to be an individual
with rights under the Convention that the Brazilian State has promised to
respect and guarantee. The alleged facts are related to action by officers
of the State. 20.
The Commission has competence ratione materiae to hear
allegations of violations of rights recognized by the Convention, namely,
the right to life (Article 4), the right to integrity of person
(Article 5), judicial guarantees (Article 8), protection of honor and
dignity (Article 11), and judicial protection (Article 25), in addition to
the obligation to guarantee and respect the rights established in the
Convention (Article 1(1)). 21.
The Commission has competence ratione temporis given that the
alleged facts date back to March 8, 1993, when Brazil was bound by the
obligation to respect and guarantee the rights established in the
Convention, having ratified the Convention on September 25, 1992.
22.
The Commission has competence ratione loci because the alleged
facts occurred in Paraná State, in the territory of the Federative
Republic of Brazil, a ratifying party. B.
Exhaustion of domestic remedies 23.
Pursuant to Article 46(1)(a) of the Convention, the Commission may
only admit a petition if the remedies under domestic law have been pursued
and exhausted in accordance with the principles of international law.
Notwithstanding, Article 46(2) of the Convention establishes that these
provisions shall not apply when: a. the domestic
legislation of the state concerned does not afford due process of law for
the protection of the right or rights that have allegedly been
violated; b. the party
alleging violation of his rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them; or c. there has
been unwarranted delay in rendering a final judgment under the
aforementioned remedies. 24.
In this case, according to information given by the petitioners and
confirmed by the Brazilian State, the police inquiry initiated on March
12, 1993 and conducted by the military police was closed by the judge of
the military tribunal. Subsequently, when a new law was passed, the
inquiry case was transferred to the State Public Prosecutor’s Office and
reopened by court ruling on March 9, 1998. The investigations were resumed
by the civil police of Paraná state on May 18, 1998, in light of new
evidence that had arisen and the deadline for their completion was
extended twice. According to information provided by the petitioners on
November 22, 1999, the police inquiry had still not been completed at that
date. The State did not contest the facts, even though the Commission
requested that it report on December 14, 1999 and May 2, 2000.
25.
Regarding the inquiry carried out by the military, the Commission
has firmly established jurisprudence that human rights violations tried by
the military justice system does not constitute an adequate remedy, thus
the petitioners were not obliged to exhaust domestic remedies under
military jurisdiction. The Commission is also of the view that, a case
revived seven years after the death of Diniz Bento da Silva, followed by
an additional two-and-a-half-year delay in carrying out the investigation
initiated with the civil suit on March 18, 1998, while the police inquiry
remains pending, represents an unwarranted delay, as described in Article
46(2)(c) of the Convention. The delay in conducting the investigations
into the death of Diniz Bento da Silva had precluded the filing of a
criminal action and the possibility of punishing the perpetrators, and
prevents the family from continuing the civil suit for damages. As
indicated earlier, the civil suit for damages has been adjourned by order
of the court pending the outcome of the corresponding criminal action. For
these reasons, the Commission considers that the requirement of exhaustion
of remedies under domestic law has been fulfilled. 26. Regarding the allegations of the petitioner on the ineffectiveness of domestic remedies, it should be noted that the expert report, requested by the CDDPH of the Public Prosecutor’s Office and completed in 1995, shows that there were serious irregularities during the investigations by the military police and recommends the discovery of additional technical evidence. Thus, in view of the allegations of possible dereliction of duty on the part of the Brazilian State in discovery of the new technical evidence indicated in the expert report, its importance for the progress of the investigations into the circumstances surrounding the death of Diniz Bento da Silva, and, consequently, the possible ineffectiveness of domestic remedies, the Commission considers that the exhaustion of domestic remedies is related to the effectiveness of such remedies, bringing it to the question of merit, wherefore it has decided to review both points jointly.[3] C.
Deadline for submission of the petition 27.
In light of the undue delay in the pursuit of domestic remedies and
the corresponding application of Article 46(2)(c) of the Convention and
Article 37(2)(c) of the Rules of Procedure, the Commission considers that
the petition, which was lodged 15 months after the date of the alleged
violation of rights, was submitted within a reasonable period of time,
pursuant to Article 38(2). D.
Duplication of procedures 28.
The Commission has no knowledge that the subject matter of the
petition is pending in any other international forum, or that it is a
duplication of a petition already examined by this or another
international organization. Thus, the Commission rules that the
requirements of Articles 46(1)(c) and 47(d) have been fulfilled. V.
ANALYSIS OF THE MERITS
Right to life (Article 4) 29.
Article 4 of the Convention provides that no one may be deprived of
the right to life arbitrarily. The Commission deems that the case in
question requires detailed analysis of the facts surrounding the death of
Diniz Bento da Silva and the evidence attached to the case, to determine
whether the State is liable for violation of said article. 30.
First, Diniz Bento da Silva, leader of the “landless” workers, was
wanted by the police because he had been charged with the homicide of
military police during a clash over occupied land between rural workers
and police on an estate in Paraná state, five days prior to his death. The
petitioners allege that the death of Diniz da Silva was in retaliation for
the death of the military police officers and, therefore, that it was an
extrajudicial execution. The State, in its response in October 1998,
states: It is true that there are reports of the police complicity to avenge the deaths of three members of the military police of Paraná state and that the military police inquiry supported that complicity. Furthermore, police brutalities, police who kill to avenge the deaths of other police, and the complicity of military justice, all have precedents. That being so, reports of a massive plot must be backed by objective evidence through legal means and instruments. The recent decision to reopen the case presents a good opportunity to determine whether there are grounds for such assertions. 31.
Secondly, the public statements by the Labor Secretary of the
Government of Paraná at the time of the incident, Joni Varisco, claiming
that the death of Diniz Bento da Silva was not the result of “conduct
strictly in the line of legal duty, but was indeed an execution authorized
by the Governor of the Paraná state to the Commander of the 6th Battalion
of the Military Police,”[4] led to the
reopening of the policy inquiry, as described by the judge: Mr. Joni Varisco made statements to the newspapers,
copies of which were entered into the record on folios 19/25, reporting
that the leader of the “landless” was executed by order of the Governor of
the state at that time, contrary to the determination of the police
inquiry, subject to possible reopening. (…) In light of the foregoing, the decision was taken to
reopen the police inquiry, which was the subject of this appeal on the
basis of Article 18 of the Code of Criminal Procedure, to continue
investigations into the death of Diniz Bento da Silva, commonly known as
“Teixeirinha”.[5] 32.
Thirdly, the victim’s son, Marcos Antonio da Silva, sent a
statement to the Commission confirming the statements made earlier to the
police authorities and the Public Prosecutor’s Office indicating that “his
father could not have had a confrontation with the PM (military police),
because he was handcuffed and unarmed.” 33.
Lastly, the expert report provided at the request of the Public
Prosecutor’s Office, proved that there were serious irregularities in the
conduct of the inquiry by the military police, which may have profoundly
changed the course of the investigations. Yet, even though it was aware of
the irregularities, there is no proof that the State took any action to
reopen the inquiry or to correct the irregularities, which constitutes
concealment of the facts by the State. 34.
The Inter-American Court of Human Rights previously ruled on the
international liability of the State in human rights violations: To establish whether there was a violation of rights enshrined in the Convention, does not require determination of the guilt of the perpetrators or their intention, as in criminal law, nor is it necessary to individually identify the perpetrators of the violations. It is sufficient to demonstrate that the authorities encouraged or tolerated the violation of the rights recognized in the Convention. The State incurs liability when it does not take the necessary action, in accordance with its law, to identify and, where applicable, punish the perpetrators of these violations.[6] 35.
In this case, the State’s liability goes far beyond tolerating and
encouraging the violation of the right to life, as it was officers of the
State, under the aegis of the authorities and bearing the emblems that
represent them--weapons, uniforms, etc.—who decided, planned, and executed
the assassination of Diniz Bento da Silva, then covered up the facts
through an irregular and inefficient investigation within the military
justice system. 36.
The Commission considers that, in view of the above analysis and
the assessment of the circumstances surrounding the death of Diniz Bento
da Silva, which was not an isolated case because, as the State itself
said, there is a precedent of cases of police brutality, there was not
sufficient evidence to establish that the officers of the Brazilian State
extrajudicially executed Mr. Diniz Bento da Silva. In addition, the
Brazilian State did not adopt measures to prevent the practice of
extrajudicial executions, nor did it punish the perpetrators of the
violation.[7] Consequently,
the Commission found that the State had violated the right to life
enshrined in Article 4 of the American Convention. Right to
physical integrity (Article 5) and right to honor and dignity (Article
11) 37.
The Commission finds that there is insufficient evidence in the
file to prove that the victim was tortured or cruelly treated or that
there were acts or campaigns to denigrate or slander the victim before his
death. Consequently, the Commission finds insufficient evidence to charge
Brazil with violations of Articles 5 and 11 of the Convention. Judicial
guarantees (Article 8(1)) and judicial protection (Article 25(1)) 38.
Article 8(1) 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, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or
for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature 39.
The Commission finds that the military justice system in Brazil, by
the nature and structure of its activities, does not meet the requirements
of independence and impartiality established in Article 8 of the
Convention, to investigate and try crimes related to human rights
violations.[8] The
inefficiency of military justice in determining the crimes committed by
military police was already an issue for discussion in Brazil and resulted
in the promulgation of Law 9.299 of August 7, 1996, which transfers to the
jurisdiction of the ordinary courts intentional crimes against life
committed by the military police against civilians.[9] The fact that
the first part of the investigations subject to this complaint were
conducted within the military justice system and before the aforementioned
law was passed denied Diniz Bento da Silva’s family a right guaranteed by
Article 8 of the Convention, namely the right to an independent and
impartial tribunal to determine the crime committed against the victim of
a human rights violation. 40.
The Commission points out some examples of the inadequacy of
Brazilian military justice procedures in this case. 41.
As indicated above, Article 8 of the Convention makes reference to
a reasonable period of time for settlement of a case of human rights
violations and the inter-American human rights protection system
establishes specific criteria. The Inter-American Court and the European
Court of Human Rights, as well as the Human Rights Commission established
a series of criteria for determining, in specific cases, reasonable time
periods for the administration of justice. The criteria are a) the
complexity of the matter; b) the action taken by the damaged party in
terms of the process; and c) the conduct of the judicial authorities.
42.
Regarding the complexity of the case and the conduct of the police
authorities, the Commission understands that an objective analysis of the
nature of the facts and the persons involved should have been made, and
the specific case is simple enough, involving the homicide of a single
victim. In addition to this, the earlier expert report concluded that
there were irregularities in the conduct of the military police inquiry
and determined which additional technical evidence was necessary to solve
the crime. Still, there is no evidence of discovery by the State of the
additional evidence to determine the irregularities. This was compounded
by the fact that the civil police inquiry was still incomplete two years
after the case was reopened and seven years after the victim’s death. 43.
Regarding the action of the damaged party, the Commission, upon
examination of the documents filed by the petitioners, finds that the
legal representatives of Diniz Bento da Silva made every effort within
their power to reopen the police inquiry as a criminal matter, submitting
new data and filing the request for reopening twice, in addition to filing
a civil suit for damages. 44.
Article 25(1) of the Convention provides that everyone 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 the Convention, even though such violation may have been
committed by persons acting in the course of their official duties. 45.
The Inter-American Court found that Article 25(1) of the American
Convention incorporates the principle of effective or efficient due
process for guaranteeing the rights protected thereunder. Thus, the
absence of domestic remedies leaves the victim of human rights violations
defenseless and, therefore, justifies international protection.[10]
46.
Pursuant to the above-cited article, Diniz Bento da Silva’s family
had the right to a judicial investigation by a court, to establish and
punish the perpetrators of human rights violations. This right flows from
the State’s obligation to “seriously investigate, by any means available
to it, the violations committed within the scope of its jurisdiction, with
a view to identifying those responsible, imposing the pertinent sanctions,
and ensuring adequate reparations for the victim.”[11] 47.
The Court commented earlier on the State’s obligation to
investigate acts in violation of the human rights protected by the
Convention: [the obligation to] investigate is, like that of
prevention, an obligation of means and conduct, for which the mere fact
that the investigation did not produce satisfactory results does not
constitute noncompliance. On the contrary, 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 upon the initiative of the victim
or his family or upon their offer of proof, without an effective search
for the truth by the government.[12] 48.
The Commission has been applying the criteria established in the Principles on Effective Prevention and
Investigation of Extra-legal, Arbitrary, and Summary Executions,
adopted by Resolution 1989/65 of the United Nations Economic and Social
Council,[13] and designed
to determine whether a State complied with its obligation to conduct a
thorough, prompt and impartial investigation of all suspected cases of
extra-legal, arbitrary and summary executions of persons under its
exclusive control. According to these principles, in such cases, the
purpose of the investigation shall be to determine the cause, manner and
time of death, the person responsible, and any pattern or practice which
may have brought about that death. It shall include an adequate autopsy,
collection and analysis of all physical and documentary evidence and
statements from witnesses. 49.
The Commission has also been implementing the recommendations in
the Manual on Effective Prevention
and Investigation of Extrajudicial, Arbitrary, or Summary Executions,
which states that the main objective of an investigation is to discover
the truth about the events that caused the victim’s death. The following
are the salient criteria of the manual: (a) The area around the body should be closed
off. Only investigators and their staff should be allowed entry into the
area; (b) Color photographs of the victim should be
taken since these—as compared with black-and-white—may reveal in more
detail the nature and circumstances of the victim's death; (c) Photographs should be taken of the scene
(interior and exterior) and of any other physical evidence; (…) j) Any evidence
of weapons, such as guns, projectiles, bullets and cartridge cases, should
be taken and preserved. When applicable, tests for gunshot residue and
trace metal detection should be performed. 50.
In the case in question, the investigations to determine the
circumstances of the death of Diniz Bento da Silva were first conducted by
the military police and followed up by CDDPH in the Public Prosecutor’s
Office, which visited the crime scene a few days after the incident.
Subsequently, the Deputy Attorney General of the Republic and Rapporteur
of the Proceedings to determine the circumstances of the death of Diniz
Bento da Silva, pursuant to Resolution 002, of March 18, 1993 of the
Public Prosecutor’s office, ruled in favor of an expert report, which
latter was completed on August 7, 1995 and which confirms a number of
serious irregularities, as reflected in the copy of that report attached
to the file: V – EXAMINATION OF THE CRIME SCENE (…) It is essential to preserve the site to be examined in
order to maintain the original conditions intact and enable the expert to
gather samples for examination and photographical documentation. In the case under review, it was found that the site
was not preserved and there was no expert report. Two days after the
incident, Mr. Ives Consentino Cordeiro was able to remove material
evidence from the site, which had not been reported by the official
experts. (…) VI – THE AUTOPSY The autopsy
report follows the model for the vast majority of Brazilian states,
but faces technical challenges as a result of the authorities’ neglect of
forensic agencies, which lack the most elementary equipment and do not
perform other critical examinations, such as x-rays. We also observed that
only one forensic medicine expert signed all the autopsy reports, which
point to the lack of human resources in the Institute of Forensic
Medicine. Despite the fact that the report submitted was
satisfactory from a descriptive point of view, it gave no indication of
the path, direction, trajectory, and distance of the shots fired that
killed Diniz, which constitutes a grave omission in the document and makes
it impossible to properly reconstruct the dynamics of the incident. In addition to this shortcoming, it should also be
noted that no residue was collected from the victim’s hands to perform the
examination that would have clarified his alleged reaction at the time he
was captured. Also regrettable is the lack of photographs and
pictures illustrating the report which, even though they are not required
from Institutes of Forensic Medicine, would have been called for in the
case under review because of its national and international
resonance. (…) VII – CRIMINAL EVIDENCE The technical evidence was damaged by the failure to
make any effort to preserve and collect it. This allowed persons other
than the experts to collect remains from the site. Necessary evidence includes the residue test and
complete photographic documentation of the scene. Other physical evidence subject to expert evaluation
is the videotape provided by a television station, which may undergo a
sound test of the gunshots to determine how many and which weapons were
involved in the shoot-out. Another important document not examined was the
ballistic and descriptive report on the weapons involved, particularly the
one referring to the 7.65 firearm supposedly taken from Mr. Diniz. VIII – TESTIMONY BY WITNESSES The statements made by the group linked to the police
diverged radically from those of the group of laborers. There is striking
uniformity in the depositions of the laborers, which recount in
detail Mr. Diniz’s last
moments before his death. All the statements must be compared and used to
establish a technical version of the events to be used as the basis for
their reconstruction. 51.
The report also recommends the gathering of additional technical
evidence: X – CONCLUSION In light of the foregoing, we suggest that, in order
to dispel any doubts about the facts involved in the death of Mr. Diniz,
the following technical evidence must be gathered: a) exhuming of
the body to determine the trajectory, path, and direction of the
projectiles from the firearms that struck Mr. Diniz; b) examination
of the videotapes for sound tests of the gunshots fired; c) detailed
expert analysis of the 7.65 caliber pistol found with Mr. Diniz; d) comparison of
all the eye witness evidence; f)
reconstruction of the facts; g) establishment
of the forensic dynamics of the shots. 52.
However, it should be noted that the Brazilian State found
irregularities in the military police inquiry[14] before the
reopening of said inquiry on March 9, 1998, but took no action thereon.
The irregularities reported by the petitioners, through the findings of
the official report, were not refuted by the State, which provided no
information with regard to the correction of the irregularities in the
first investigations or the production of new technical evidence. 53.
On June 11, 1999, namely one year after the reopening of the
investigations by the civil police, the Office of the Public Prosecutor of
Paraná declared the need to determine any possible link between the
ex-governor of Paraná state and the death of the victim, and pointed to
the unjustified delay in the investigations by the civil police, as
reflected in his opinion: Let us not forget that it is essential to elucidate
any possible involvement of the former governor Roberto Requião in the
facts now under investigation. We are also aware that the crime occurred
in 1993, which makes it very difficult to collect evidence, and find that
there is no justifiable reason why these investigations, which started on
May 18, 1998, never attempted to clarify the manner in which DINIZ BENTO DA SILVA,
“Teixeirinha” was assassinated or whether or not the military police were
acquitted of criminal liability. So, I call upon Mr. JULIO CESAR DOS REIS,
the police authority in charge of this case, to order the Internal
Investigation Office of the Civil Police of Paraná state [Corregidora
Geral da Policía Civil do Estado do Paraná] to appoint a new special
delegate to exclusively move forward with the investigations. 54. Despite the fact
that two years have passed since the reopening of the police inquiry and
seven years since the crime took place, the inquiry has not been
completed, thereby depriving the victim’s family of their right to seek
justice within a reasonable period of time by means of simple and rapid
remedies. These factors lead the Commission to conclude that the
investigations were not conducted seriously and effectively as required in
Articles 8(1) and 25(1) of the Convention, and consequently to find that
the Brazilian State violated those articles. Duty of the
State to guarantee and respect rights (Article 1(1)) 55.
Article 1(1) of the Convention clearly establishes the State’s
obligation to respect the rights and freedoms recognized in the Convention
and to guarantee their free and full exercise by all persons under its
jurisdiction, so that any violation of rights recognized in the
Convention, which could be attributed, in accordance with the rules of
international law, to the action or omission of any public authority,
constitute an act for which the State is liable, as follows: On the other hand, the State is required to
investigate any situation in which the human rights protected under the
Convention may have been violated. If the State apparatus acts in such a
way that the violation remains unpunished and does not fully restore the
victim‘s rights, to the extent possible, it could be charged with
noncompliance with its duty to guarantee free exercise by persons under
its jurisdiction.[15] 56.
Wherefore, the Commission finds that the Brazilian State did not
undertake a serious and exhaustive investigation, resulting in impunity of
the crime, combined with failure to compensate the victim and thereby
violated Article 1(1) of the Convention. VI.
ACTION SUBSEQUENT TO THE APPROVAL OF REPORT 75/00, PURSUANT TO
ARTICLE 50 OF THE CONVENTION 57.
On February 20, 2001, the Commission approved Report 38/01,
pursuant to Article 50 of the American Convention on Human Rights, at its
meeting Nº 1053 during the 110th regular session. In this report, the Commission
found that it had jurisdiction to hear the case and that the petition was
admissible under Articles 46(2)(c) and 47 of the American Convention. In the same report, it concluded
that the Federative Republic of Brazil is responsible for violating the
right to life (Article 4) of Mr. Diniz Bento da Silva, in Paraná
State on March 8, 1993, and for violating the right to judicial guarantees
(Article 8), the right to judicial protection (Article 25), and the
obligation to guarantee and respect the rights listed in the Convention
(Article 1(1)). In addition, it advised the Government to: 1) Conduct an
impartial and effective investigation in the ordinary courts to bring to
trial and punish those responsible for the death of Diniz Bento da Silva;
punish those responsible for the irregularities noted in the investigation
by the military police; and punish those responsible for the unjustified
delay in conducting the civil investigation, under Brazilian law; 2) Take
the necessary steps to ensure that the victim’s family receives adequate
compensation for the violations established herein; 3) Take the necessary
steps to prevent such incidents from occurring in future, in particular,
measures to prevent confrontations with rural workers in conflicts over
land, negotiation and peaceful settlement of such disputes. Thus, the case
should continue to be processed, pursuant to Article 51 of the American
Convention. Report 38/01, produced in accordance with Article 50 of the
Convention, was duly transmitted to the Government on March 12, 2001,
requesting that it inform the Commission, within six months, of the
measures adopted to comply with the recommendations made. To date, the
Government has not responded to the communication. VII.
CONCLUSIONS 58.
Taking into account the facts and analysis given above, and by the
powers vested in it through Article 51 of the American Convention, the
Inter-American Commission on Human Rights finds: 59.
That it has jurisdiction to hear the case and that the petition is
admissible under Articles 46(2)(c) and 47 of the American Convention. 60.
That the Federative Republic of Brazil is responsible for violating
the right to life (Article 4) of Mr. Diniz Bento da Silva in Paraná State
on March 8, 1993, and for violating the right to judicial guarantees
(Article 8), the right to judicial protection (Article 25), and the right
to guarantee and respect the rights listed in the Convention VIII.
RECOMMENDATIONS 61.
Based on the preceding analysis and findings, the Inter-American
Commission on Human Rights reiterates the following recommendations to
Brazil: 1.
Conduct a serious, effective, and impartial investigation through
the ordinary justice system to determine and punish those responsible for
the death of Diniz Bento da Silva, punish those responsible for the
irregularities in the investigation by the military police, as well as
those responsible for the unjustifiable delay in conducting the civil
investigation, in accordance with Brazilian law. 2.
Take the necessary steps to ensure that the victim’s family
receives adequate compensation for the violations established herein. 3.
Take steps to prevent a repetition of such events and, in
particular, to prevent confrontations with rural workers over land
disputes, and to negotiate the peaceful settlement of these disputes.
IX.
PUBLICATION
62.
The Commission approved Report Nº 111/01 pertaining to this case on
October 15, 2001 pursuant to Article 51 of the American Convention. On November 28, 2001 the
Commission transmitted this report to the Brazilian State and to the
petitioners, in conformity
with Article 51(1) of the American Convention 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
regarding the said recommendations, for which reason the Commission is of
the view that they have not been complied with.
63.
Pursuant to the foregoing considerations, and in conformity with
Articles 51(3) of the American Convention and 45 of its Regulations, the
Commission decides to reiterate the precedent recommendations in
paragraphs 58, 59, 60 and 61, 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, Washington, D.C., on February, 28, 2002. (Signed) Juan Méndez, President; Marta Altolaguirre, First Vice-President; José Zalaquett, Second Vice-President; Robert Goldman, Julio Prado Vallejo and Clare Roberts, Commissioners. [ Table of Contents | Previous | Next ]
[1]
The term “landless” workers is used in Brazil to refer to rural workers
engaged in the struggle for agrarian reform. [2]
In his statements to the Public Prosecutor’s Office, the journalist
affirmed: “that he went to the Police Station in Campo Bonito to gather
information on the case and that, while inside, some persons were gathered
in the station room including the local police chief, Lieutenant Silveira
of the Cascavel military police, and Delgado Almari Pedro Kochianki, of
the civil police, who was specially assigned to the case, and he overheard
snatches of a conversation between the three in which they stated: “that
Teixeirinha is a ‘goner’. He won’t escape. He’s dead,” (…) “When he asked
questions about what he had overheard, Lieutenant Silveira denied having
said any such thing, but added ‘Teixeirinha is a dangerous element. He has
already killed three and he’ll do it again, and we’ll catch him, dead or
alive’”. [3]
“For that reason, when some exceptions to the rule of non-exhaustion of
domestic remedies are evoked, such as the ineffectiveness of such
remedies, or the non-existence of due process, it is alleged that the
petitioner is not required to pursue such remedies and the State is
indirectly implicated in another violation of obligations assumed under
the Convention. In such circumstances, the question of domestic remedies
can be equated with the substance of the case.” Inter-American Court of
Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment
of June 26, 1987, par. 91. Fairén Garbi and Solis Corrales case,
Preliminary Objections, Judgment of June 26, 1987, par. 90. “Under no
circumstances should the rule of prior exhaustion of domestic remedies
defer or delay to the point of futility international action in support of
defenseless victims. This is the reason why Article 46.2 establishes
exemptions to the requirement to use domestic remedies before resorting to
international protection, precisely in situations where, for various
reasons, these remedies are not effective. Naturally, if the State’s
intervention is timely, this exception should be considered and settled,
but the relationship between the judgment on applicability of the rule and
the need for timely international action in the absence of effective
domestic remedies may frequently advise consideration of questions
regarding that rule together with the substance of the claim, to prevent
preliminary objection procedures from delaying the process unnecessarily.”
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Preliminary Objections, Judgment of June 26, 1987, par. 93. Fairén Garbi
and Solís Corrales Case, Preliminary Objections, Judgment of June 26,
1987, par. 92. [4]
Copy of the opinion of Public Prosecutor Eduardo Augusto Cabrini of the
Public Prosecutor’s Office of Paraná State, dated March 3, 1998 in appeal
case 14/97. [5]
Copy of the decision by Judge Cristiane Santos Leite of the District of
Guaraniaçu-PR, Single Criminal Bench, dated March 9, 1998 in case
14/97.
[6]
Inter-American Court of Human Rights, Paniagua Morales et al. Case.
Judgment of March 8, 1998. [7]
Regarding the situation of conflicts between rural workers and the
military police, the report monitoring compliance with the recommendations
of the IACHR found in the Report on the Situation of Human Rights in
Brazil - 1997, published in 1999 indicates: “(…) However, there is still a
lack of serious measures to alleviate the problem of clashes over land
occupation and distribution, as well as the impunity of police officers or
individuals that make attempts on the lives and personal security of
workers and defenders of the human rights of rural workers.”
[8]
IACHR, Report on Human Rights Situation in Brazil – 1997, Chapter III:“77.
Military court cases are often delayed on for years, due to the heavy
workload, the scarcity of judges and prosecutors, excessive red tape,
delays, etc. The Commission has found that the courts tend to be indulgent
with police accused of human rights abuses and other criminal offenses,
thereby allowing the guilty to go unpunished". ‘78. In this climate of
impunity, which breeds violence by the military police corps, the police
officers involved in this type of activity are encouraged to participate
in extrajudicial executions, to abuse detainees, and to engage in other
types of criminal activity. The violence has even spread to the
prosecutors who, when they insist on continuing investigations into the
crimes committed by the military police, have been threatened and even
subjected to death threats. It is also not uncommon for witnesses summoned
to testify against police officers on trial to receive intimidating
threats." 79. "In a letter addressed to the Commission in 1996, the Santo
Dias Center stated, in this regard: In military investigations
(inquiries), officially carried out by the organs of military justice,
the bias in favor of incriminated police officers in most cases is
so flagrant that it turns the victims into criminals. It is also very
common to intimidate witnesses, whose court depositions are taken in the
presence of the accused police officers. Under such conditions, it is not
surprising that so many investigations are dismissed on grounds of
insufficient evidence.... If this stage is completed and charges actually
filed or admitted, new difficulties arise in the proceedings, which are
deliberately slow and plagued with delays: deferred establishment of the
councils, repeated postponements for minor procedural problems, etc. Thus,
it is not surprising to find proceedings dragging on for four or five
years or indefinitely, allowing enough time for the events to be forgotten
by the press and the public. After such a long time, the victims' families
lose hope, witnesses move away, and the evidence disappears.” In view
of these facts, the IACHR gave the following advice to the Brazilian
Government:
“Conferring on the ordinary justice system the authority to judge
all crimes committed by members of the state military police.” (par.
95.9). Recommendations made to the Brazilian Government in the IACHR
Annual Report for 1997: “Military justice […] can only be used to try
Armed Forces personnel in active service for misdemeanors or offences
pertaining to their function. In any case, this special jurisdiction must
exclude the crimes against humanity and human rights violations”
(Recommendation Nº 1, Chapter VII, Recommendations of the Inter-American
Commission on Human Rights). See also IACHR Annual Report 1999, Report Nº
34/00, Case 11.291- Carandirú (Brazil), par. 80. Similarly, for the
Inter-American Commission on Human Rights, see IACHR Annual Report 1999,
Report 7/00, Case 10.337 (Colombia); par. 53-58; IACHR, Third Report on
the Situation of Human Rights in Colombia (1999), p. 175 [of Spanish
version]. The UN Commission on Human Rights also judged that military
justice was inappropriate in its final observations on the First Periodic
Report submitted by the Brazilian Government to that body in 1996. The
Committee expressed its concern about the practice in the Brazilian system
of administration of justice of trying military police accused of human
rights violations in military courts and found it regrettable that
jurisdiction in these cases had not yet been transferred to the civil
courts. In the same vein, the report prepared by Mr. Joinet for the
Sub-commission on Prevention of Discrimination and Protection of
Minorities of the UN Commission on Human Rights, in establishing the
principles of administration of justice, stated that, in order to prevent
military courts in those countries where they have not yet been abolished
from perpetuating impunity owing to their lack of independence from the
chain of command to which all its members are subject, their jurisdiction
should be limited specifically to military offenses committed by members
of the armed forces, and should exclude human rights violations, which
constitute serious crimes under international law, which should be under
the jurisdiction of the ordinary courts or, where necessary, the
international courts” (Report Nº E/CN.4/Sub.2/1997/20, June 26, 1997,
principle Nº 34). [9]
IACHR Report on the Human Rights Situation in Brazil, 1997, Chapter III:
“82. Military police violence and impunity have given rise to several
congressional initiatives designed to suppress the special military
jurisdiction for judging the crimes committed by military police in the
performance of their public order functions. […]." 83. […] The President
enacted the substitute bill on August 7, 1996 (law 9299 of August 7,
1996). Law 9299 amends Article 9 of the Military Penal Code (decree-law
1001) defining military crimes. The new “sole paragraph” of this provision
establishes: The ordinary justice
system shall have jurisdiction in the crimes discussed in this article,
when they constitute criminal attempts on life committed against
civilians." (Underlining by the Commission). [10]
See also Note 2. Furthermore, the Inter-American Commission considers that
the jurisprudence of the Inter-American Court of Human Rights in this
regard refers as well to cases of forced disappearance, and is also
applicable to cases of extrajudicial execution (IACHR, Annual Report 1999,
Report Nº 37/00, Monsignor Oscar Arnulfo Romero y Galdámez, Case 11.481,
(El Salvador), note 80. [11]
Velásquez Rodríguez Case, Judgment of July 29, 1988, par.174. Godínez Cruz
Case, Judgment of January 20, 1989, par. 184. [12]
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
of July 29, 1988, par.177. [13]
Principles on Effective Prevention
and Investigation of Extra-legal, Arbitrary, and Summary Executions,
Economic and Social Council, resolution 1989/65 of May 24, 1989, United
Nations. [14]
Report on the Human Rights Situation in Brazil, IACHR, 1997, par. 79: “In
a letter addressed to the Commission in 1996, the Santo Dias Center
stated, in this regard: In military
investigations (inquiries), officially carried out by the organs of
military justice, the bias in favor of incriminated police officers
in most cases is so flagrant that it turns the victims into criminals. It
is also very common to intimidate witnesses, whose court depositions are
taken in the presence of the accused police officers. Under such
conditions, it is not surprising that so many investigations are dismissed
on grounds of insufficient evidence.... If this stage is completed and
charges actually filed or admitted, new difficulties arise in the
proceedings, which are deliberately slow and plagued with delays: deferred
establishment of the councils, repeated postponements for minor procedural
problems, etc." (Underlining by the Commission). "Thus, it is not
surprising to find proceedings dragging on for four or five years or
indefinitely, allowing enough time for the events to be forgotten by the
press and the public. After such a long time, the victims' families lose
hope, witnesses move away, and the evidence disappears.” [15]
Velásquez Rodríguez Case, Judgment of July 29, 1988, par. 174. Godínez
Cruz Case, Judgment of January 20, 1989, par. 187. |