REPORT Nº 35/01*
On December 7, 1995, during its visit to Brazil, the Inter-American
Commission on Human Rights (hereinafter the “Commission” or “IACHR”)
received a petition that the Centro de Defesa Dom Luciano Mendes of
the Associação Beneficiente São Martinho [São Martinho
Charitable Association] (hereinafter the “petitioner”) filed against
the Federative Republic of Brazil (hereinafter called the “State” or
the “Brazilian State” or “Brazil”) for the alleged extrajudicial
execution of the minor Jailton Neri da Fonseca (hereinafter the
“victim”) by Rio de Janeiro State military police during a police
operation in the Ramos favela. If
proven true, the facts alleged in the petition could constitute violations
of Article 4 (right to life), Article 8 (the right to a fair trial),
Article 19 (the rights of the child), and Article 25 (the right to
judicial protection) of the American Convention on Human Rights
(hereinafter the “American Convention” or the “Convention”).
Brazil reported on the internal measures in progress, including the
investigations and the ruling handed down by the Military Tribunal of the
State of Rio de Janeiro.
After examining the parties’ allegations, the Commission decided
to declare this case admissible.
PROCESSING WITH THE COMMISSION
In accordance with Article 33 of the Commission’s Regulations, in
March 1996 the Commission asked the petitioner to complete the petition by
supplying additional information. The
petitioner supplied the requested information on April 19, 1996, including
a copy of the ruling handed down by the Military Tribunal on March 12,
1996. On June 14, 1996, the
Commission requested information from the State.
The latter twice requested that the deadline for supplying that
information be extended: the first time on September 18, and the second
time on November 26, 1996. With
no information from the State forthcoming, on July 7, 1998 the Commission
again asked the Brazilian State to supply the previously requested
information and advised it of the possible application of Article 42 of
the Commission’s Regulations. The
State sent information on August 17, 1998, a copy of which was forwarded
to the petitioner on September 25, 1998.
The petitioner did not present final comments.
POSITION OF THE PARTIES
Position of the petitioner
The petitioner alleges that the minor Jailton Neri da Fonseca, age
thirteen, was killed by military police during a police raid in the Ramos
favela in the city of Rio de Janeiro on December 22, 1992.
The petitioner also alleges that the minor Jailton had been
detained some days before being killed by police officers in charge of
patrolling the Ramos favela. To secure Jailton’s release, police had demanded that
Jailton’s mother pay a sum that was, at the time of the crime,
Cr$1,500,000 (one and a half million cruzeiros), which was extortion.
The petitioner reports that police inquiry Nº 601 was instituted
on December 23, 1992. In it, the Office of the State’s Attorney indicted
four police officers in case 96/30/95.
The petitioner adds that on March 12, 1996, the Permanent Military
Tribunal handed down a verdict acquitting the accused police officers,
based on the maxim of the law in dubio pro reo. Its
reasoning was that there were doubts as to the authorship of the crime and
that any new evidence in the case was impossible.
The petitioner did not make clear whether an appeal was filed to
challenge the acquittal, but it does report that the remedies under
domestic law were exhausted when the verdict became final, at which point
no appeal could be filed.
The petitioner adds that it is routine military police practice to
intimidate witnesses in order to keep them from testifying against the
police, thus ensuring that violations will go unpunished.
Position of the State
According to information
received from the Office of the State’s Attorney of Rio de Janeiro,
Jailton Neri da Fonseca, then a teenager, was killed at the time of an
operation conducted by the Rio de Janeiro military police to stop illegal
drug trafficking and to apprehend those drug traffickers who hide out in
Ramos Favela. The State went on to say that:
Obviously the vast majority
of those who live in the favelas are not criminals and are not involved in
drug trafficking. But the
truth is that the majority of the people used in illegal drug trafficking
in Rio de Janeiro are from those favelas.
Many are minors, preferably teenagers, particularly inasmuch as
they are not subject to criminal indictment.
The State reported that criminal case Nº 9630/95 was instituted
with the judge advocate’s office because the military courts have
jurisdiction in homicide cases involving military police.
It also reported that the probable-cause proceedings are
adversarial proceedings, where the accused have full guarantees of
self-defense. The State added
that on March 12, 1996, the Military Tribunal unanimously decided to
acquit the military police accused of the murder of Jailton Neri da
Fonseca and of the crime of extortion they were alleged to have committed
against the victim’s mother. The
State points out that the verdict became final, and thus no longer subject
to any type of legal challenge.
Lastly, the State reports that in the matter of damages for
unlawful acts committed by police officers, under the Brazilian legal
system the State does not have the authority to take the initiative in
this regard, and that some judicial or legislative measure directly
related to the victims or their next of kin was needed.
In the instant case, where the offenses were criminal in nature,
the accused would have to be convicted. It added that in this specific
case, the suit seeking damages on behalf of the victim and his next of kin
was brought in the civil courts of the state of Rio de Janeiro, and that
damages were contingent upon the outcome of the case brought in the
state’s criminal justice system.
materiae, personae, temporis and loci
The Commission has competence ratione
personae to examine the complaint because the petition names as the
alleged victim a person whose Convention-recognized rights the Brazilian
State undertook to respect and guarantee. The facts alleged involve
actions of agents of the state of Rio de Janeiro.
Under Article 28 of the Convention, where a State Party is
constituted as a federal state, as in Brazil’s case, the federal
government will be answerable at the international level for acts
committed by agents of the federation’s units.
The Commission has competence ratione
materiae because the case
involves allegations that, if proved true, would constitute violations of
rights recognized in the Convention, namely: the right to life (Article
4), the right to a fair trial (Article 8), the rights of the child
(Article 19), and the right to judicial protection (Article 25).
The Commission has competence ratione
temporis given that the facts alleged date back to December 22, 1992,
when the obligation to respect and guarantee the rights recognized in the
Convention was already binding upon the Brazilian State, which ratified
the Convention on September 25, 1992.
The Commission has competence ratione
loci because the facts alleged occurred in the city of Rio de Janeiro,
within the territory of the Federative Republic of Brazil, a State that
ratified the American Convention.
Requirements for the petition’s admissibility
Under Article 46 of the American Convention, admission by the
Commission of a petition or communication will be subject to the following
that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
b) that the petition or communication is lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment;
c) that the subject of the petition or communication is not pending in
another international proceeding for settlement.
The Commission will now examine each of the requirements listed
Exhaustion of remedies under domestic law
In the instant case, based on the information supplied by the
parties, the only inquiry was the one conducted by the military justice
The Commission has repeatedly held that prosecution of human rights
violations by military courts was not an effective recourse.
Hence, the petitioner is not required to exhaust it.
Also, the Commission considers that the remedies under domestic law
were exhausted once the Military Tribunal’s March 12, 1996 verdict
Deadline for filing the petition
While the exception to the rule requiring exhaustion of domestic
remedies applies, so does the rule stipulated in Article 46(1)(b) of the
Convention, which requires that the petition be submitted within six
months of notification of the final judgment.
The Commission considers that the petition was submitted within a
reasonable period of time, that it was basically complete when submitted
and fully complete with the additional information requested by the
Commission and supplied by the petitioner on time, that is to say, just
one month after notification of the March 12, 1996 verdict.
Duplication of proceedings or res
The Commission has no information to indicate that the subject of
the petition is pending in another international proceeding for settlement
or that it is substantially the same as one previously studied by the
Commission or by another international organization.
Hence, the Commission finds that the requirements stipulated in
Articles 46(1)(c) and 47(d) are met.
Characterization of the facts
If the facts alleged by the petitioner are proved true, they could
constitute violations of rights protected by the American Convention.
The Commission concludes that it is competent to consider the
present case and that the petition satisfies the admissibility
requirements set forth in articles 46 and 47 of the American Convention.
Based on the foregoing arguments of fact and of law, and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the case admissible with regard to the facts alleged
which, if proven true, would constitute violations of Articles 4, 8, 19
and 25 of the American Convention.
To notify the Brazilian State and the petitioners of this decision.
To proceed with its analysis of the merits of the case.
To publish this decision and include it in the Commission’s
Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the twentieth day of February, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Commissioners: Robert K. Goldman, Julio Prado Vallejo and Peter Laurie.
Pursuant to Article 19(2)(a) of the Commission’s Regulations
Commission member Hélio Bicudo, a Brazilian national, did not
participate in the discussion of this case or in the adoption of this
IACHR, Report on the situation of human rights in Brazil, 1997,
Chapter III, paragraphs 77 to 79; IACHR, Annual Report 1999; Report Nº
34/00, Case 11.291- Carandirú (Brazil), par. 80. See also:
IACHR, Annual Report 1999, Report 7/00, case 10.337 (Colombia);
paragraphs 53 to 58; IACHR, Third report on the situation of human
rights in Colombia (1999), p. 175.