On July 24, 1996, the Inter-American Commission on Human Rights
(hereinafter "the Commission" or “the IACHR”) received a
petition from the Center for Justice and International Law (CEJIL) and
Human Rights Watch/Americas (hereinafter “the petitioners”) alleging
that on October 18, 1994, the Federative Republic of Brazil (hereinafter
the “State” or the “Brazilian State” or “Brazil”), had
unlawfully executed Evandro de Oliveira, Andre
Luis Neri da Silva, Alberto dos Santos Ramos, Macmillea Faria Neves,
Adriano Silva Donato, Alex Viana dos Santos, Alexandre Batista de Souza,
Alan Kardec Silva de Oliveira, Clemilson dos Santos Moura, Robson Genuino
dos Santos, Fabio Henrique Fernades Vieira, and Ramilson José de Souza,
and had allegedly sexually abused J.F.C., C.S.S., and L.R.J. during a raid conducted by the
Civil Police in the Nova Brasília favela in Rio de Janeiro.
The petitioners allege that the Brazilian State is responsible for
violating Article 4 (Right to Life); Article 5 (Right to Humane
Treatment); Article 8 (Right to a Fair Trial); Article 11(1) (Right to
Privacy); and Article 11(2) and 11(3) (right to the inviolability of the
home) of the American Convention on Human Rights (hereinafter “the
American Convention” or “the Convention”).
The State provided information on the domestic measures taken to
establish the circumstances in which the offenses occurred.
However, it has not expressly disputed compliance with the
requirement regarding exhaustion of domestic remedies.
After analyzing the allegations of the parties, the Commission
decided to declare the case admissible.
PROCEEDINGS BEFORE THE COMMISSION
On November 19, 1996, the Commission asked the Brazilian State to
provide information regarding the facts alleged in the petition.
On February 19, 1997, and again on March 31, 1997, the State asked
for an additional 30 days to respond, and the Commission agreed to both
requests. On July 7, 1998, in
view of the State's inaction, the Commission sent a letter to the State
requesting the necessary information and advising it of the application of
Article 42 of its Rules of Procedure. On August 7, 1998, the State forwarded its reply.
On September 1, 1998, the Commission forwarded information from the
State to the petitioners, who provided additional information on November
17, 1998. On November 25, 1998, and again on May 1, 2000, the Commission
requested the Brazilian State to make its final observations.
The State did not reply to either of these requests.
POSITION OF THE PARTIES
A. Position of the
The petitioners allege that at 5:00 a.m., on October 18, 1994, a
group of 110 civil police from Divisão
de Repressão a Entorpecentes [Narcotics Enforcement Division]
(DRE) of the state of Rio de Janeiro conducted a raid in the Nova Brasília
favela in Rio de Janeiro on the pretext of serving 104 arrest warrants.
They add that there was an armed confrontation between drug
traffickers and police and that the alleged violations of human rights
took various forms, which are described below.
According to the petitioners, a first group of police invaded the
home of J.F.C. and her boyfriend “Paizinho,"
and ordered them to surrender. After
handcuffing Paizinho, the police kicked him and beat him over the head in
order to force him to tell them the whereabouts of one of the leaders of
the local drug trafficking ring, and finally grabbed him and threatened to
kill him. The police also injured J.F.C. by beating her on the legs
The petitioners also allege that the same police raided another
trafficker's house and, as they were firing when they went in, they killed
Adriano Silva Donato and Alan Kardec de Oliveira, whose bodies were
dragged outside and taken to the main town square.
Immediately afterwards, police dragged Clemilson dos Santos from
his house and allegedly summarily executed him in the same square.
According to the petitioners' version, a second group of police
raided a house and allegedly summarily executed Sergio Mendes Oliveira,
Fabio Henrique Vieira, and Evandro de Oliveira, the last of whom was shot
in both eyes. The police then
raided another house and killed Robson Genuino dos Santos, Ramilson José
de Souza, and Alberto dos Santos Ramos.
The petitioners also allege that a group of 10 police raided
another house, in which C.S.S., L.R.J.,
and André Luiz Neri Silva were present, and some of the police sexually
abused C.S.S. and L.R.J.. In
addition, the police beat L.R.J. and André in order to extract
information on the whereabouts of one of the leaders of the local
trafficking ring. The police
then took André, whose body was later found in the main square with the
The petitioners state that the police operation ended at 9:30 a.m.
with fourteen (14) of the alleged traffickers dead.
The petitioners state that police inquiry Nº 184/94 was begun on
October 18, 1994, by the Narcotics Enforcement Commission to establish the
irregularities in the actions of the police.
At the same time, the Rio de Janeiro government established a
special commission to oversee investigations (Inquiry Nº 52/94), which
were conducted by the Ombudsman for the Civil Police and the Delegacia
Especial contra a Tortura e Abuso de Autoridade (DETAA) [Special
Commission against Torture and Abuse of Authority].
The petitioners state that inquiry Nº 52/94, conducted by the
DETAA, concluded that the police had summarily executed individuals and
committed other abuses but that, in the course of investigations, none of
the aggressors identified by the victims gave evidence or were arrested.
The petitioners state that the Public Prosecutor, Maria Inês
Pimentel, who was responsible for following-up on Inquiries Nº 184/94 and
Nº 52/94, systematically refused to provide any information regarding
The petitioners state that, under Article 10 of the Brazilian Penal
Code, 30 days are allowed for completion of police inquiries, which may be
extended, with judicial authorization, for an additional 30 days.
The petitioners state that, in this case, the inquiries begun to
establish the events that transpired in Nova Brasília favela were not
concluded until November 1998, when additional information was sent in,
that is, four years after the inquiries were initiated.
With respect to exhaustion of domestic remedies, the petitioners
affirm that the petition is admissible on the grounds of the unwarranted
delay under domestic remedies, Article 46(2)(c). The petitioners add that
the four-year delay in conducting the police inquiry, without any of the
corresponding criminal charges having been brought against the
perpetrators, demonstrates that domestic remedies are ineffective in
redressing the violations of human rights in this case.
B. Position of the
In response to the allegations of the petitioners, the Brazilian
It was also clearly demonstrated that the drug traffickers reacted
violently, and that three civil police officers were injured as a result.
police inquiry conducted by the Narcotics Enforcement Division therefore
intended to investigate whether there was criminal or culpable excess in
the repressive police action.
With respect to the investigations process, the State transcribed
the information supplied by representatives of the Office of the Public
ANALYSIS OF ADMISSIBILITY
Competence ratione materiae,
ratione personae, ratione temporis, and ratione loci of the Commission
The Commission has competence ratione
personae (by reason of the person involved)
to examine the case because the petition indicates that the alleged
victims are individuals whose rights, as enshrined in the Convention, the
Brazilian State undertook to respect and guarantee.
In addition, the facts alleged relate to the action of agents of
the state of Rio de
Janeiro and, under Article 28 of the Convention, where a federal state,
such as Brazil, is involved, the national government is responsible under
international law for acts committed by agents of the constituent states
of the federation.
The Commission has competence ratione
materiae (by reason of the
matter involved) as the case involves allegations of violations of rights
recognized in the Convention, that is:
the right to life
(Article 4); the right to humane treatment (Article 5); the right to a
fair trial (Article 8); the right to privacy [Article 11(1)]; and the
right to inviolability of the home [Article 11(2) and 11(3)].
The Commission has competence ratione
temporis (by reason of the time involved) as the alleged facts date
from October 18, 1994, when the obligation to respect and guarantee the
rights established in the Convention was in force for the Brazilian State,
which ratified the Convention on September 25, 1992.
The Commission has competence ratione
loci (by reason of the place involved) because the alleged facts
occurred in the city of Rio de Janeiro, that is, within territory subject
to the jurisdiction of the Brazilian State.
Exhaustion of domestic remedies
Pursuant to Article 46(1)(a) of the Convention, one the
Commission's admissibility requirements is that domestic remedies must
have been exhausted, in accordance with principles of international law.
However, Article 46(2) of the Convention establishes that the
aforementioned provision does not apply in the following cases:
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;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
In this case, according to information supplied by the petitioners
and confirmed by the Brazilian State, two police inquiries were initiated
to determine the events that took place in Nova Brasília favela: (a)
Inquiry Nº 184/94, begun on October 18, 1994, conducted by the Narcotics
Enforcement Commission; and (b) Inquiry Nº 52/94, conducted by the
Special Commission against Torture and Abuse of Authority.
The opening date of this inquiry is not available.
According to the information available, the Commission notes that
Brazilian law provides for a 30-day period for conclusion of police
inquiries, which may be extended for an additional thirty days with
judicial authorization. However, according to the information available in the file,
even now the inquiries have not been completed, despite the passage of six
The State did not expressly dispute whether the requirement of
exhaustion of domestic remedies had been met, confining itself to
reporting that two police inquiries had been initiated to establish the
alleged violations taking place in the police raid of Nova Brasília
favela, and that the investigations process is being supervised by the
Office of the Public Prosecutor. The
Commission indicates that the State should expressly and duly cite the
provisions regarding failure to exhaust domestic remedies so that it may
oppose the petition's admissibility.
In this case, the State did not avail itself of that prerogative, which amounts to its tacit waiver.
In view of the foregoing, the Commission states that, with six
years having elapsed since the initiation of the investigations in 1994,
without the police inquiries having been concluded, there has been an
unwarranted delay as defined in Article 46(2) (c) of the Convention.
Delay in the conclusion of these investigations implies that
criminal proceedings cannot be brought, thereby making it impossible for
the perpetrators to be punished. For
the foregoing reasons, the Commission considers that the requirement
regarding the exhaustion of domestic remedies is met.
Period for lodging the petition
In view of the unwarranted delay under domestic remedies and the
corresponding application of Article 46(2)(c) of the Convention and
Article 37(2)(c) of the Commission's Rules of Procedure, the Commission
decides that, pursuant to Article 46(2) of the Convention, the exception
to said requirement regarding the period for lodging the petition also
applies. The Commission
considers that the petition was lodged within a reasonable period of time.
Duplication of proceedings and res
The Commission has no knowledge that the subject of the petition is
pending in another international proceeding for settlement, or that it
represents, from a substantive standpoint, a reproduction of an appeal
already examined by the Commission or another international entity.
Therefore, the Commission finds that the requirements of Article 46(1)(c)
and 47(d) of the Convention have been met.
of the facts
If their veracity is confirmed, the facts alleged by the
petitioners may be characterized as violations of the rights enshrined in
the American Convention.
The Commission concludes that it is competent to hear this case and
that it is admissible under Articles 46 and 47 of the American Convention.
Based on the arguments of fact and law set forth above, and without
prejudice to the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with regard to the facts which, if
their veracity is confirmed, constitute violations of Articles 4, 5, 8, 11
(1), 12 (2), 12 (3), and 25 of the American Convention.
To notify the Brazilian State and the petitioners of this decision.
3. To continue its analysis of the merits of the case; and
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights in Washington, D.C., on this 22nd day of
February 2001. (Signed):
Claudio Grossman, Chairman, Juan Méndez, Vice-Chairman; Marta
Altolaguirre, Second Vice-Chair; Robert K. Goldman, Julio Prado Vallejo,
and Peter Laurie, Commissioners.
Commissioner Hélio Bicudo, a Brazilian national, did not participate
in the discussion of this case in accordance with Article 19(2)(a) of
the Commission's Rules of Procedure.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, Judgment of June 26, 1987, Series C, No. 1,
para. 88, and Inter-American Court of Human Rights, Case of Loayza
Tamayo, Preliminary Objections, Judgment of January 31, 1996, Series
C, Nº 25, para. 40.