The present petition concerns events that took place on October 10, 1992
at the Carandirú detention center in São Paulo, and was filed by Americas
Watch, CEJIL, and the Teotonio Vilela Commission against the Federative Republic
of Brazil (hereinafter called the State or Brazil).
It relates to a prison riot in which 111 prisoners (84 of whom had not
been sentenced) were killed and others seriously wounded in actions allegedly
committed by the São Paulo military police on October 2, 1992.
It is requested that the State be sanctioned for violations of Articles
4, 5, 8, 25, and 1(1) of the American Convention on Human Rights ("the
Convention") for violations of the right to life and personal integrity,
due process, and judicial protection, all in keeping with the State's obligation
to respect and ensure enjoyment of such rights (Article 1(1)).
According to the original complaint, the investigation was still bogged
down 16 months after the events occurred and proceedings had not been instituted
against those allegedly responsible; in fact some of the officers involved had
In later submissions, complaints were lodged over the persisting impunity
and the absence of compensation for the victims.
The State, for its part, while generally acknowledging that violations of
the right to life and personal integrity occurred during the riot, maintains
that it has taken serious and significant steps to improve prisons conditions in
the state of São Paulo.
Also, proceedings had been instituted to prosecute the agents responsible
and to seek compensation and continue in different jurisdictions in accordance
with procedural guarantees.
It further asserts that the cases of voluntary manslaughter by members of
the police were transferred to the civil courts in accordance with Law 9299-96
Consequently, domestic remedies have not been exhausted and the petition
does not satisfy the conditions of admissibility.
The attempt to seek a friendly solution proposed by the Commission to
both parties on various occasions has not been successful.
The Commission concludes that the petition is admissible.
After analyzing the facts and the law, the Commission finds that what
took place was a massacre in which the State violated the rights to life, and
personal integrity, and in subsequent proceedings violated the rights to due
process and judicial protection (Articles 4, 5, 8, and 25) with respect to
Article 1 of the Convention.
Also, it recommends that the events be investigated, those responsible
punished, the victims given compensation, and steps be taken at the national and
state level to avoid a repetition of violations of this kind.
PROCEEDINGS BEFORE THE COMMISSION
On February 22, 1994, the petition was filed with the Commission, which
forwarded it to the State on May 11, 1994, with a request for the latter's
Additional information was received from the petitioner on September 16,
The State initially responded on August 8, 1994, with information on the
progress of the legal proceedings, with a request for an extension in order to
answer more fully.
An extension to November 4, 1994, was granted.
The petitioner replied to the State's response on August 14, 1995.
Throughout this period, both parties furnished additional information on
the progress of the domestic remedies.
The petitioner responded on October 3 and 10, 1995, and on January 15,
The State provided fresh information on September 7, 1995.
In addition, during its on-site visit to Brazil in December 1995, the
Commission obtained information on the case from the military courts of the
The State provided new information on the implementation of the prison
reform in São Paulo on August 4, 1999.
Hearings for the case were held on four occasions -- September 8, 1995,
February 23, 1996, October 7, 1996, and October 8, 1997.
In the first hearing, the Commission made itself available to the parties
in seeking a friendly solution.
This proposal was reiterated unsuccessfully on other occasions, including
during the visit to Brazil in July 1997 by the Commission's Rapporteur for
matters in Brazil.
The State presented a report at the hearing of October 7, 1996, on the
steps that were being effectively taken to close down the Carandirú prison
At the hearing, the Commission "decided to suspend consideration of
the case until such time as the Supreme Court ruled on the conflict of
clarifying that the case was not being dismissed but would continue its normal
course as soon the Supreme Court's decision was known.
On December 13, 1996, the State reported that the Supreme Court had
decided that the proceedings be transferred to the jurisdiction of the civil
criminal courts of the state of São Paulo, which had already been done and it
was expected that the proceedings would be concluded shortly and that a jury
trial would take place.
On April 10, 1997, the petitioner asked the Commission to intervene with
the State to set up a Special Commission composed of non-governmental agencies
and the State, to monitor the closing down of the Carandirú correctional
This proposal was sent to, and rejected by, the State.
On October 7, 1997, the petitioner requested that the State take various
measures and that the Commission reopen the proceedings in view of the delay by
the civil courts in prosecuting the proceedings and provided new information on
the problems that persisted at the Carandirú facility, including more riots and
At that same hearing the State reported that it had been decided by the
courts to compensate some of the victims' families and that additional steps
were being taken to resolve the case.
The petitioner responded that such steps were ineffective and incomplete
and again requested that the Commission act on the petition.
In view of the fact that the grounds for suspending consideration of the
case were removed through the transfer of the proceedings to the civil criminal
courts, the Commission decided to reopen consideration of the matter.
POSITIONS OF THE PARTIES
The events of October 2, 1992
The petitioner alleges
that on the date of the riot there were 2,069 inmates in Block 9 of the Carandirú
complex, a number in excess of the facility's capacity, that these inmates were
in the charge of just 15 prison guards, and that conditions in the detention
center were against the regulations and abusive; and that as a result of the
tensions and ill-feelings that existed, what started out as a minor altercation
between inmates was mishandled by the guards and degenerated into a full-scale
The petitioner specifies that two prisoners began to fight over a trivial
matter at 2:00 p.m. that day.
When the fight was over, the guards shut off access to the corridor,
crowding and confining the prisoners together on the second floor of the
In desperation, the prisoners managed to break the lock and the uprising
When the riot broke out, the guards decided to withdraw from the building
and the Warden called on the military police for assistance.
Approximately 350 agents of the military police arrived on the scene at
2:45 p.m. from various barracks, including shock troops and the ROTA special
At the same time, the Warden requested that magistrates with jurisdiction
in the matter (i.e. the juiz da vara de
execuções criminais and the juiz
corregedor da policía).
Upon their arrival, the magistrates were discouraged from intervening by
members of the military police of São Paulo (PM) and were told that they could
not enter block 9 on grounds that the prisoners were armed.
This brief effort at negotiation that the judges were about to attempt
was thus thwarted, and at 4:00 p.m. the military police began their take over of
Eleven hours later, some time after midnight, when the military police
withdrew from the prison and returned to their barracks, the prison guards
confirmed that the action had claimed 111 lives and left about 35 prisoners
No members of the police were killed.
The petitioner also maintains that the deaths were summary executions of
the inmates, who were murdered after they had surrendered and that wounded
inmates who had surrendered were subsequently executed.
The petitioner goes on to say that according to police experts bullet
holes in the cell walls corroborate the version that they had been summarily
The petitioner reports that an expert, Osvaldo Negrini Neto, author of
the work on the massacre, disclosed in an interview for Folha
de São Paulo that military police units had probably stormed cell block
9, had prior information of the location of the ring leaders, went directly to
that spot, and murdered them in their cells.
According to the expert:
found evidence that a hail of machine gun bullets had been fired about 50
centimeters above ground level, indicating that the prisoners had been shot
while on their knees.
The marks indicate that the bullets had been fired in a single direction.
There were no holes in the opposite wall, indicating that no shots had
been fired at the police.
The petitioner further states that immediately after the massacre
military police destroyed any evidence that could have been used to determine
individual responsibility for the murders, and that the three magistrates
present had done nothing to prevent this from happening.
The main pieces of evidence that would have made it easier to establish
the identity of those responsible disappeared.
The petitioner affirms that the subsequent behavior of the authorities
was as shameful as the massacre itself.
The relatives of the victims were not given any information until the
afternoon of the following day.
The official list of victims was not released until October 8, six days
after the massacre.
Reporters were initially prevented from disclosing any information about
the matter, and two news photographers were held at the police station for
photographing the removal of the bodies.
The petitioner also indicated that many of the inmates who had been
wounded in the action, most of them seriously, had to wait several days before
being treated and that the families of the victims were subjected to inhumane
treatment, by being kept waiting at length exposed to the elements and
threatened by police dogs.
The petitioner notes that the riot and the subsequent massacre occurred
following a decade during which the military police of São Paulo had earned a
reputation for resorting frequently to the use of deadly force as reflected by
the fact that 25% of all violent deaths in 1991 in the state of São Paulo had
been caused by the police.
The petitioner maintains that government data show that 14 of the senior
police officers who commanded the operations at the detention center on October
2, 1992, were being tried by military courts for 148 other counts of homicide or
The petitioner maintains that in the past massacres had taken place in
operations to quell prison riots in São Paulo but none of the magnitude of the
one of October 2.
Notwithstanding these previous incidents of police violence, the
Secretary of Public Security for São Paulo gave the military police absolute
authority to put down the riot.
The petitioner subsequently indicated that the problem had persisted over
the years since then, because on several occasions, including in 1997, riots
continued to break out at Carandirú.
The petitioner reports that in October 1997, despite the body of evidence
that had accumulated since the events, the Government had not issued an official
version of the facts acknowledging the massacre or the responsibility of the
agents of the State.
It is also noted that the victims' next of kin had not been paid
compensation. The petitioner clarifies that although the Prosecutor's Office had
initiated legal proceedings for compensation in 59 cases, with a ruling in favor
for 13 of the victims, even these few compensation awards had not been effected,
as confirmed in newspaper reports indicating that compensation could not be paid
unless the State allocated special funds to the budget, in other words
compensation could only be paid if funds were appropriated by the Legislature as
late as 1999.
Five years after the events, a ruling of the lower court was still
pending in 20 other actions for civil damages arising from these events, an
indication of the failure of the State to fulfill its international obligation
to compensate the victims for these violations.
In its submissions, the petitioner also reported that after the events
had taken place, and pursuant to the Officer Promotion Act (Executive Order
13,654/54), senior and middle ranking officers in charge of putting down the
riot and who had been charged with, amongst other things, voluntary manslaughter
of the victims, had been promoted.
One of the officers promoted, Lt. Col. Armando Rafael Araujo, who
had been made Commander of the 9th of July Cavalry Regiment, was charged with
injuring 87 prisoners.
It further reports that the names of members of a group of military
police officers under the command of Major Rail de Mendoça, that included four
plainclothesmen, all of whom had taken part in the assault to crush the Carandirú
riot, do not appear on the list of the accused and are still active members of
the police force.
The petitioner recalls that the Court established the obligations of the
States parties with respect to individuals in its custody:
the terms of Article 5(2) of the Convention, every person deprived of her or his
liberty has the right to live in detention conditions compatible with her or his
personal dignity, and the State must guarantee to that person the right to life
and to humane treatment.
Consequently, since the State is the institution responsible for
detention establishments, it is the guarantor of these rights of the prisoners.
The petitioner maintains that the judicial authorities and the prosecutor
have confirmed that agents of the State had entered the prison and opened fire
on defenseless inmates, and that the details of these events submitted to the
Commission were never denied by the State.
Even the State's own investigations established that violations to the
right to life and integrity of the person had occurred (Articles 4 and 5 of the
Convention) and that failure to elucidate the case and take effective legal
action to bring those responsible to justice are violations of Articles 8 and 25
(judicial guarantees) of the Convention.
As to compensation to the victims' families, the petitioner refers to the
established precedent of the Inter-American Court of Human Rights concerning the
obligation of the State to provide adequate compensation to the victims and
Legal remedies and judicial guarantees
The petitioner notes in its submission of January 15, 1996, that
after processing the case for 3 years the military courts decided to transfer it
to the civil courts.
Thus, on February 13, 1996, the Special Council of Military Justice
decided unanimously to transfer the case to the civil courts on grounds that
"there was proof of involvement in the case by the then duly established
civil authorities" presumably in reference to the alleged responsibilities
of former governor Luis Antonio Fleury Filho and the former Secretary of
Security Pedro Franco de Campos.
It is maintained that if the civil courts do not agree to take over the
there will be a conflict of jurisdictions on which the Federal Supreme Court
would have to rule.
The petitioner points out the delay and complexity that this means since
after three years during which a vast body of evidence had been accumulated and
the testimony of 253 witnesses, filling 26 volumes and 7,651 pages, only now was
jurisdiction passing to the civil courts and in accordance with the new jury
In light of the fact that this new court will use only the technical
evidence -- ballistic evidence, expert testimony, etc. -- the accused will
request that the testimony of the witnesses be reexamined, with the additional
delay that this implies.
The petitioner maintains that this not only violates due process to which
the victims are entitled but is also a manoeuvre to add to the unwarranted delay
that has already occurred in the military courts.
Subsequently, the petitioner reported that there was a lengthy additional
delay, noting that only 14 months later in April 1997, the Supreme Court
confirmed the decision for transfer of the case to the civil courts.
The petitioner again reiterates that the proceedings are lengthy since
this decision took more than one year and was in fact redundant since such a
transfer should automatically have been done pursuant to the Bicudo Act adopted
seven months earlier on August 6, 1996.
On October 8, 1997, the petitioner reports provision had not yet been
made for the case to be tried by the jury, and that the main proceedings had
been split up in order to separate from the case the only officer charged, Col.
Ubiratan Guimaraes, now retired who commanded the operation and had been elected
to the state Legislature in January 1997.
In that capacity, he enjoyed parliamentary immunity, which can only be
withdrawn by the Legislative Assembly of São Paulo and this had not been done.
The petitioner further reports that in another example of impunity in
case Nº 266-93 before the 5th criminal court of Santana Edson Faroro (military
officer) and Ismael Pedrosa (Warden of Carandirú at the time of the riot) were
found not guilty of abuse of authority in September 1997.
In efforts to maintain this impunity, on September 10, 1997, the Attorney
General requested that proceedings against seven of the military policemen
charged with seriously injuring an inmate be suspended in accordance with
Article 89 of law 9099/95, which allows conditional suspension for felonies with
a minimum sentence of a year in jail. It
is recalled that the police officers had been charged with seriously injuring
the prisoner when he had surrendered and was unarmed.
The petitioner indicates that as a result of this suspension requested by
the Prosecutor through a motion that seeks to benefit the principals charged, no
reference to the criminal charges even appears in the defendants' record.
Thus, the petitioner maintains the State is failing to fulfill its
international commitment to punish those responsible for violations of human
The petitioner maintains that, given the nature of the alleged
violations, the Commission is fully competent to hear the case.
With respect to the requisite that domestic remedies be exhausted, such
remedies have been shown to be ineffectual and unwarranted delay has resulted in
the military and civil courts.
The petitioner mentions that three years after the proceedings were
initiated the military courts decided to transfer the case to the competence of
the civil courts, reopening proof despite the mountain of accumulated evidence.
The petitioner notes that as recently as 1997 no sentences had been
passed and no compensation had been paid, and requests that the exception
granted pursuant to Article 46(2)(c) of the Convention be applied.
The events in the prison and the response of the State institutions
With respect to objective responsibility of the State for homicide and
the attacks on the personal integrity of the inmates, the Government
acknowledges the serious nature of the situation and the events reported
although it maintains that it has taken steps to provide adequate compensation
and has initiated the legal proceedings provided for in Brazilian law.
Hence, as later indicated with respect to each action, it contends that:
(a) all of the families that have demonstrated their kinship with the
victims have been awarded compensation in civil proceedings; (b) a Secretary of
State has been established within the government of the state of São Paulo
solely to handle correctional facility matters; and (c) a plan has been
initiated to close down the Carandirú correctional facility and to build modern
As to the events of October 2, the State indicated on August 8, 1994,
that "the government and courts of Brazil are determined to press ahead
with the proceedings in this sad episode, and to elucidate the facts with a view
to determining responsibility".
It reported that 120 police officers had been charged, including Military
Police Colonel, Ubiratan Guimaraes, who together with Lt. Col. Edson Faroro, had
transferred to the reserve.
It reports that civil proceedings had commenced to compensate the
It further reports that immediately after the riot steps were taken to
set up a Secretary for Prison Administration in São Paulo and that a course in
human rights had become a compulsory part of police officer training in that
On October 15, 1996, the State reported that an agreement had been
reached between the Federative Republic of Brazil and the state of São Paulo to
close down the Carandirú prison complex as an initial step to fulfilling one of
the long-term objectives of the National Human Rights Program, which provides
that "the São Paulo Detention Center (Carandirú) and other correctional
facilities that failed to meet the minimum international prison standards be
In addition, a significant number of new prisons and associated
facilities will be built with the ultimate objective of rehabilitating the
The program acknowledges that at the time (1996) Carandirú housed almost
double its regulation inmate capacity.
These assertions on the implementation of the penitentiary reform were
broadened on August 4, 1999, noting that Carandirú had been closed down
completely and other preventive measures implemented.
The State reports that on November 27, 1996, the Supreme Court confirmed
the competence of the civil courts to hear the case concerning the massacre of
111 prisoners, expressing the view that "the crime may be considered a
matter for the civil courts although it had been committed by military personnel
on duty using military weapons and that the Military Code of Justice is clear in
In a subsequent communication, the government maintained that the
decision was based on the entry into force of the Bicudo Act (Law 9,299/96),
which transferred to the civil courts the prosecution of the crimes of voluntary
manslaughter committed by military personnel.
On April 6, 1996, the State officially forwarded to the Commission a
notice placed on the internet indicating that the "government of Brazil
accepts responsibility for Carandirú".
The notice states that the government of the state of São Paulo with the
support of José Gregori, National Human Rights Commissioner, was studying a
solution to the case, whereby compensation would be paid to the victims'
families. The notice also states
that the Governor of the state, Mario Covas, maintained that legal proceedings
for compensation needed to be followed, and that any decision taken should be
consistent with others being processed in other cases.
It is maintained that domestic remedies have not been exhausted in the
proceedings of the military police officers charged with voluntary manslaughter
and in the cases of compensation, all of which are being carried out in
accordance with the guarantees and procedures provided in Brazilian law.
ANALYSIS OF JURISDICTION AND ADMISSIBILITY
The Commission is competent prima
facie to examine this case, given that the alleged facts affected people
under the jurisdiction of the State when the obligation to respect and guarantee
rights recognized in the Convention was in full force.
As to competence ratione personae,
Article 1(1) of the Convention clearly establishes the obligation of the State
to respect the rights and freedoms recognized by the Convention as well as to
ensure the free and full exercise of such rights so that any violation of the
rights recognized under the Convention that may be attributable, in accordance
with the standards of international law, to an action or omission by any public
authority is the responsibility of the State.
Pursuant to Article 28 of the Convention, in the case of a federative
State like Brazil, the national government answers internationally for the acts
committed by the federation's constituent units.
The present case deals not only with alleged violations committed during
the violent suppression of the Carandirú riot but also alleged violations of
the rights to a fair trial, due process and judicial guarantees recognized under
the Convention. These violations are attributable to state officials (senior
authorities of the state of São Paulo, authorities in the prison system, state
military police, officials at the Attorney General's Office and judicial
The present petition therefore meets the formal requisites for
admissibility provided for in Articles 46(1)(c) and 46(1)(d) of the Convention
and in Article 32 of the Regulations of the Commission. The Commission is not
aware of the subject of this petition being pending for settlement or of a
ruling having been issued in another international proceeding.
of domestic remedies and period for presentation
The Commission now turns to the formal aspects of the admissibility of
Pursuant to Article 46(1)(a) of the Convention for a petition to be
admissible by the Commission all remedies available under domestic jurisdiction
must have been exhausted, in accordance with the principles of international
Article 46(2) establishes, however, that the provisions for exhaustion of
remedies available under domestic jurisdiction are not fulfilled 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; or
there has been unwarranted delay in rendering a final judgement under the
The petitioners alleged that the proceedings were delayed on numerous
occasions and held up in the various courts, with the result that five years
after the events occurred none of those responsible have been punished and no
compensation has been paid to the victims or their families.
The State on several occasions during the proceedings before the IACHR
alleged that the judicial remedies were in progress and had not been exhausted.
The State pressed ahead with various proceedings based on the events in
question in the criminal and civil courts.
Some of the actions had become statute barred before the proceedings were
completed, other proceedings were completed with a verdict, and others are in
According to the information at the Commission's disposal, a guilty
verdict has not been returned in any of the cases, and those still in progress,
seven years after the riot, have not been concluded.
Amongst those for which judicial remedies have been exhausted are the
proceedings against 8 policemen charged by the Attorney General of injuring the
The charges were filed on March 8, 1993, and lapsed two years later, in
1995, without a verdict.
In another case of civil liability for abuse of authority against Col.
Faroro, one of the officers commanding the forces used to suppress the riot, and
the Warden of the Prison, the defendants were acquitted.
The main criminal proceedings against 119 policemen charged with
aggravated manslaughter was initiated before the Military Court of São Paulo on
June 23, 1993 (case 78/93) and was seriously delayed.
Three years after the case was opened, during which period numerous
judicial proceedings took place, it was transferred by the Special Council of
Military Justice to the jurisdiction of the civil courts on February 13, 1996,
because of evidence of responsibility on the part of duly elected civil
Such evidence against civil authorities (the Governor and the Secretary
of Public Security) were known when the charges were filed in 1993.
Consequently, the three-year delay in transferring the case appears to be
unwarranted to the Commission.
In addition, the transfer further delayed the handling of the case since
under procedural law only the testimony of technical experts and documentary
evidence is still admissible in civil proceedings but the testimony of witnesses
would need to be repeated when 253 sworn declarations had already been taken.
This decision of the Council of Military Justice was reviewed by the
Federal Supreme Court, which took fourteen months to uphold it, in April 1997.
Since then the case continues to be heard in the civil courts for a
decision by the jury.
In case 78/93, charges were filed against the only officer accused, Col.
Ubiratan Guimaraes, who commanded the forces that suppressed the riot.
He was charged with manslaughter as well as other counts.
When Col. Ubiratan was elected to the state Legislature in January
1997, the proceedings came to standstill, and this will continue as long as he
has parliamentary immunity, without the Legislative Assembly initiating
proceedings against him at the political level to remove the privilege, despite
the enormity of the charge and requests from various representatives and civil
His term of office ended the first semester of 1999, thereby ending his
As to compensation, the Commission confirms that of the 59 trials
initiated by the State for satisfaction, the families of the victims were
identified in only 13, although compensation was determined, it was never paid
because funds had not been allocated for this purpose in the state budget.
The exemptions provided in Article 46(2) of the Convention seek to ensure
that international action will be taken when the remedies under domestic
jurisdiction and the judicial system itself are not effective in guaranteeing
respect for the victims' human rights.
Hence, the formal requirement regarding the nonexistence of domestic
remedies that safeguard the principle of due process (Article 46(2)(a) of the
Convention) refer not only to the absence of formal remedies under domestic
jurisdiction but also to the case in which they prove ineffective.
The denial of access to judicial remedies (Article 46(2)(b) of the
Convention), and unwarranted delay in rendering judgement (Article 46(2)(c) of
the Convention) are also linked to the effectiveness of such remedies.
The Court has maintained on this point that the generally recognized
principles of international law mean that domestic remedies must formally exist
and that they be suitable for addressing the infringed legal right and effective
in producing the result for which they were designed.
That is why exhaustion of such remedies should not be understood to
require mechanical attempts at formal procedures, but rather to require a
case-by-case analysis of the reasonable possibility of obtaining a remedy.
In this same vein, the right to furnish proof that domestic remedies have
been exhausted as grounds for declaring a petition inadmissible does not mean
that it may "lead to a halt or delay that would render international action
in support of the defenseless victim ineffective.".
In other words, if processing of domestic remedies is subject to
it can be inferred that they have ceased to be effective in producing the result
for which they were intended, thus rendering "the victim helpless".
It is at that point that the mechanisms of international protection including
the exceptions provided for in Article 46(2) of the Convention must be applied.
At the writing of this report, more than seven years have elapsed since
the events in question occurred.
Yet, domestic judicial remedies have failed to punish even one of those
responsible because of acquittal, or the lapse of statutory periods, or
unwarranted delay; nor has compensation been paid to the victims and/or their
Accordingly, the Commission can confirm that domestic remedies have been
exhausted or have been delayed unjustifiably.
Moreover, in their failure to provide for punishment because of
prescription or to pay compensation to the victims, domestic remedies have not
proven effective or at least up to the standard required for a decision of
admissibility or inadmissibility.
In view of the foregoing, the Commission is of the view that in the
present case the exception for unwarranted delay provided in Article 46(2) of
the Convention applies to criminal proceedings.
As to the requirement that the petition be submitted within six months
(Article 46(1)(b) of the Convention), in the Commission's judgment, the
exception provided in Article 46(2)(c) of the Convention and Article 37(2)(c) of
the Regulations of the Commission apply because there has been unjustified delay
in the serving of justice.
In this regard, Article 38(2) of the Regulations states:
In the circumstances set forth in Article 37(2) of these Regulations, the
deadline for presentation of a petition to the Commission shall be within a
reasonable period of time, in the Commission's judgment, as from the date on
which the alleged violation of rights has occurred, considering the
circumstances of each specific case.
Since the complaint was filed sixteen months after the alleged violation
of the rights and repeated in subsequent years, in confirming that the judicial
delays increased in frequency throughout this period, the Commission considers
that the petition was submitted within a reasonable period of time in accordance
with Article 38(2).
Consequently, in lights of Articles 46 and 47 of the Convention, the
terms for declaring the petition admissible in the present case have been
The Commission now examines the facts.
The Commission considers that it is competent to review the complaint
presented by the petitioners and declares that the present case is admissible in
accordance with the requirements provided in Articles 46 and 47 of the American
ANALYSIS ON THE MERITS
The prison situation and security
The Commission considers it necessary to examine the prison situation
that developed in the state of São Paulo, living conditions of the inmates, the
background to the riots at that particular facility, and the chain of command
and decision-making in circumstances such as a riot, and the pattern for the use
of extreme force by the São Paulo military police.
The basic requirements for inmates in prisons at the time of the riot
In September 1992, the Carandirú prison wing in which the riot and its
subsequent suppression occurred housed more than twice its permitted capacity,
as acknowledged by the Government in its prison reform plan.
Such overcrowding leads to friction amongst the inmates and between
inmates and prison guards.
A total of 7,257 prisoners were housed together in the facility.
Of this number, 2,706 were imprisoned in Cell Block 9, the scene of the
The prisoners in this wing were "first offenders" (those
imprisoned for the first time), many of whom had not been sentenced and were
under "amparo" on presumption of innocence.
Most of the inmates ranged in age from 18 to 25.
They were housed in 248 cells, or about eight per cell, in conditions of
physical overcrowding without sufficient space for relaxation or work.
In fact, as the Commission confirmed on its on-site visit in 1995, there
was barely enough room to stand or sit side by side.
The institutional control of the prison
When Fleury Filho, the former Secretary of Public Security, became
Governor in March 1991, he transferred administrative jurisdiction for state
prisons from the Secretariat of Justice to the Secretariat of Public Security.
This move was criticized by the São Paulo Bar Association since the
prisons were placed under the same authority as the Police and Prison Guards.
When riots take place in prisons, the monitoring magistrate
(juiz corrigedor da policía) and the sentencing magistrate (juiz
da vara execuções criminais) were called in to guarantee the safety of the
prisoners and decide on the actions to be taken to quell the disturbances.
In earlier incidents, the Secretary of Justice himself had been present
or actively involved in the negotiations.
On October 2, therefore, administrative responsibility for Carandirú
correctional and police services was centralized in the São Paulo Secretariat
of Public Security. Police
officials reporting to this Secretariat removed the potential for negotiations
by the judges who arrived at the prison, indicating to them that they should not
enter because the situation was extremely dangerous and hard to control.
The Commission calls attention to the fact that a study conducted in 1988
on riots in São Paulo found that eleven uprisings had occurred between
September 1986 and April 1988; in the six occurrences in which a negotiation
strategy was used there were no deaths, whereas there were 47 (inmates and
policemen) in those in which force was used to suppress the riot.
The São Paulo military police's pattern of violence
At the time of the riot, the São Paulo military police had a record of
using extreme force in their fight against crime.
In 1991, 25% (1,140) of all violent deaths in São Paulo were at the
hands of the police.
During Antonio Fleury Filho's administration (1991‑1992), the
military police killed on average one person every six hours, compared with an
average of one every 17 hours during the two previous administrations
(1982‑1991) and one every 30 hours in the 1978‑1982 administration.
A Federal Commission of Inquiry of the Legislature found that 14 of the
senior officers commanding the assault on October 2 had been charged with 148
counts of homicide or attempted homicide by military courts.
The State's response to the riot
State's responsibility for guaranteeing the integrity of the inmates and
preventing outbursts of violence
As the Court has stated:
"In terms of Article 5(2) of the Convention, every person deprived
of her or his liberty has the right to live in detention conditions compatible
with her of his dignity, and the State must guarantee the right to life and to
Consequently, the State, as the party responsible for establishments of
detention is the guarantor of these rights of detainees.
The living conditions of the inmates in the facility, which did not
conform to international standards due to overcrowding and lack of recreational
activities, created the conditions for an outbreak of friction between the
inmates that could easily escalate into acts of general rebellion with an
ensuing backlash of disproportionate force by agents of the State to bring the
violence under control.
The illegal conditions in which the inmates lived, the previous riots at
Carandirú, and the lack of any strategy to prevent or avoid the escalation of
friction, as well as the absence of any negotiating capacity by the State which
could have avoided or lessened the violence of the riot are themselves
violations on the part of the State to honor its obligation to guarantee the
life and personal integrity of individuals in its care.
Furthermore, in violation of national and international law, most of the
inmates at Carandirú at the time had not been sentenced (and must therefore be
presumed innocent) and were compelled to live in highly dangerous conditions
side by side with condemned convicts.
The riot and its suppression
The State's obligation to control the riot and the proportionality of
That the State has the right and the duty to put down a prison riot was
maintained by the Court in the Neira Alegría case.
The riot must be suppressed through such strategies and actions as are
needed to bring it under control with minimal harm to the life and physical
integrity of the inmates and minimal risk to law enforcement officials.
The repression by the police, as described in the petition and confirmed
by the official investigation and the opinion of experts, was conducted with
absolute disregard for the life of the inmates, demonstrating a retaliatory and
punitive attitude, wholly at variance with the guarantees that the police should
The Commission notes that the deaths did not take place in situations of
self-defense or to disarm the inmates since the prisoners' weapons were of the
homemade variety and had been thrown down on to the patio when the police
No firearms were found in the possession of the rioters nor had any shots
been fired against the police.
Their initially violent attitude was quickly overcome by the entry en
masse of the heavily armed police.
action of the civil authorities and the magistrates supervising the prison
during the uprising
According to facts furnished by the petitioners and not denied by the
State, the supervisory magistrates were notified by the Warden of the Prison as
soon as the alarm was sounded at 2:15 p.m. at which time the police authorities
were called in.
At 2:30 p.m. Commander Ubiratan Guimaraes, Chief of the Metropolitan São
Paulo police department, arrived with three battalions of shock troops,
including dogs and a heavily armed unit, and the ROTA Battalion, which
specializes in armed assaults.
The Secretary of Security transferred authority over the prison to
According to testimony given before the Legislature, such a transfer of
command was done without consulting the supervisory magistrates.
There were no instructions either as to the avoidance, if possible, of
the use of deadly force.
The Governor was then away from the city and apparently was not informed
of the riot until 5:35 p.m.
The Warden of the Prison declared before the Legislature that he was
prepared to negotiate with the rioters and with this in mind had approached Cell
Block 9 with a loud speaker but the police physically prevented him from
negotiating and he was pushed to one side as the police stampeded into the cell
Much the same thing happened to the magistrates, who had arrived at the
prison at 3:45 p.m. and were told by the military police that there were no
conditions to negotiate.
About 5:00 p.m., the magistrates were informed that the riot was over,
but that civilians could not enter the cellblock.
They were not authorized to enter until 7:00 p.m.
In their testimony before the Legislature, the magistrates indicated that
they had seen pipes, knives, pieces of wood, chains, and stones thrown out on to
the ground as well as "many naked prisoners sitting on the ground with
their hands on their heads".
The magistrates did not ask to inspect all of the sections and cells and
after visiting the first floor of the cell block, without visiting the others
floors, they went to the Warden's offices without questioning any of the
They left the prison at 10:30 p.m. after being informed by Lt. Col. Edson
Faroro that there were more than 50 dead.
They did not open any proceeding or investigation at that time.
The next day, they were advised that 111 inmates had died.
The Commission is of the view that the civil authorities of the state of
São Paulo failed to comply with their lawful responsibilities in dealing with
the riot, particularly the authorities of the Secretariat of Public Security
which, aware of the military police's violent attitude and disregard for the
right to life, sanctioned an invasion of the cell block without attempting to
isolate and pacify the rioters.
The magistrates, too, made no attempt to assert their authority since
they accepted a role wholly subordinate to the orders of the military even after
the riot had been put down, when they could have initiated an investigation in
order to preserve the evidence.
Probably, their presence alone would have prevented suffering and death;
nor did they then take any steps to control the fate of the inmates who had
survived the initial massacre, many of whom were killed in its aftermath.
The action by the police to suppress the riot
It has been fully confirmed that as a result of the police action 111
inmates were killed and approximately 35 wounded.
The petition also indicates that many of the victims were killed while
they were unarmed and defenseless, and this is not denied by the State and was
corroborated in the Legislative inquiry and by independent experts.
Governor Fleury himself declared that the situation got out of hand and
widespread killing began of those who may have been leaders or participants in
the riot as well as others who happened to witness the indiscriminate slaughter
when a number of inmates attacked the police and Commander Guimaraes was injured
when a television camera exploded.
It also emerges from the expert report that the shots fired in the cells
came from the police and were fired in a single direction about fifty
centimeters above ground level, indicating that the victims were on their knees
at the time.
The investigations and testimony of survivors also indicate that many of
the inmates were killed after they had surrendered, had their hands up and were
naked for the most part.
The nature of these violations of the rights to life and personal
integrity were further exacerbated by the savage methods used to suppress the
rioters who had surrendered through the execution of inmates who had been forced
to take part in the illegal removal of bodies, the attacks against the survivors
and the beating of their wounds, the delay in providing medical care, and the
murder of wounded inmates on their way to hospitals.
Of all of the cases of massacres heard by the Commission through the
years there have been few to equal the savagery and brutality that afternoon at
Actions to destroy the evidence and to prevent action by the newsmen
It also emerges that some of the inmates were murdered after carrying out
orders to remove the corpses from where they had originally fallen, as part of a
systematic effort to destroy any evidence that could be used to identify the
individual police officers responsible for each death and to cloud the evidence
and the circumstances.
These actions to conceal what had happened began when the magistrates
present in the prison were prevented from entering the cell blocks at the time
of the surrender, continuing with the execution of witnesses and numerous other
actions carried out systematically to elude investigation, confuse public
opinion, and ensure impunity.
These actions documented in the parliamentary investigation include
washing away the blood from the scene of the massacre, prohibiting photographs
from being taken after the inmates had surrendered, offering conflicting reports
on police casualties and inflating the number, producing thirteen firearms
attributed to the inmates from which none of the shots fired was found to have
come, and which because of their rusty condition and the way in which they
turned up had been blatantly "planted" after the event.
The Director of Prison Discipline testified to Amnesty International that
he had requested that each wounded inmate removed from the prison be accompanied
by correctional services personnel.
The police denied this request and according to the deposition the first
eight inmates taken away, slightly wounded, to the Santana Hospital died before
or soon after arriving at the hospital, apparently executed on the way.
The purpose of some of these maneuvers was to elude and confuse
reporters. For instance, photographers were not permitted to enter even when the
uprising was already under control, and from taking photographs of the dead and
wounded that were being taken away.
One reporter, Caco Barcellos, who had investigated police conduct in the
past, was harassed, through interference with his reports and threatened to the
point that he was forced to flee the country.
Although the number of dead was known to the civil and military
authorities at 8:00 a.m. on October 3, the figures were not released to the
press until 4:30 p.m., one half hour after the polls for the municipal election
being held that day had closed.
The press was informed on the night of October 2 that "eight
prisoners had been killed in a fracas between rival bands during the riot",
when in fact the eight prisoners in question were the ones who had been slightly
wounded and taken away and killed in police custody on their way to the
The IACHR notes that, as in previous cases
it is necessary to analyze and evaluate the present case in light of the
criteria established in the "Principles on the effective prevention and
investigation of extralegal, arbitrary, and summary executions", adopted by
the United Nations Economic and Social Council (Resolution 1989/65) in order to
determine whether the State has fulfilled its obligation to conduct an
immediate, exhaustive, and impartial investigation of the summary execution of
persons in its exclusive care.
According to these principles, in cases of this nature the purpose of the
investigation must be to determine the cause, the manner, and the moment of
death, the person responsible, and the procedure or practice that could have
Also, a proper autopsy must be performed, all of the material and
documentary evidence collected and analyzed, and eyewitness testimony taken.
The investigation should distinguish between death from natural causes,
accidental death, suicide, and homicide.
These principles have been supplemented by the adoption of the
"Manual on the Effective Prevention and Investigation of Extra Legal,
Arbitrary, and Summary Executions", whereby the main objective of an
investigation is "to discover the truth surrounding the events that caused
the suspicious death of a victim".
To this end, the Manual establishes that those carrying out the
investigation must adopt, as a minimum, the following measures:
Identify the victim;
Recover and preserve pieces of evidence from the deceased to assist in
any possible proceedings against those responsible;
Identify possible witnesses and obtain statements from the latter about
Determine the cause, manner, location, and time of death as well as any
method or practice that may have caused it;
Distinguish between natural and accidental death, suicide, and homicide;
Identify and apprehend the person or persons that may have participated
in the execution;
Bring the perpetrator or perpetrators suspected of having committed a
crime before a competent court established by law.
To ensure that an exhaustive and impartial investigation of an
extrajudicial, arbitrary, or summary execution, the Manual provides that
"one of the most important aspects of the process is the gathering together
and analysis of the evidence".
Therefore "the persons in charge of the investigation of a suspected
extrajudicial execution must have access to the place where the body was
discovered as well as the possible place of death."
According to the standards contained in the Manual, the procedure for
collecting evidence must conform to certain criteria, some of which are listed
The area adjacent to the body must be closed off.
Only investigators and their staff will be allowed to enter the area.
Color photographs of the victim must be taken since these could reveal
more details than black and white ones about the nature and circumstances of the
Photographs must be taken of the scene (inside and outside) and any
The position of the body and the condition of the clothing must be
The following factors serving to establish the time of death must be
f. All evidence of weapons such as
firearms, projectiles, bullets, and shell cases or cartridges must be collected
and preserved. If necessary, tests
must be performed to find residues from shots and/or to detect the presence of
The Commission confirms that these standards were not observed and were
systematically violated in an attempt to destroy the evidence and to prevent the
identification and punishment of those responsible.
Treatment of the wounded
The petition reports on a number of unidentified wounded persons who did
not receive care for days and in some cases died for lack of adequate medical
care. This information was
confirmed by the parliamentary investigation and in the Amnesty International
None of this information was denied by the State in its submissions.
An analysis of the documentation shows that they were not given adequate
assistance and that some of the wounded were subsequently executed in cold
blood, which is confirmed by the fact that the number of seriously wounded is
very small in proportion to the number of dead.
More importantly, some of the few wounded to survive were mistreated and
beaten on their wounds as a form of revenge and punishment.
The treatment of the families
In accordance with the United Nations Minimum Standard Rules for the
treatment of Prisoners (44(1)), "in the event of the death, serious
illness, or serious injury of a prisoner, the Director shall inform the spouse
immediately, if the prisoner is married, and if not his next of kin and, in all
cases, he shall report to any other person previously designated by the
prisoner". Although the number
of dead was known to the police at 8:00 a.m. the next day (October 3), the
families waiting outside the prison were not officially informed.
The names of the dead were not made public until October 4 when a list of
the 111 victims was affixed to the prison gate. No formal notification was given to each family, nor were
they told to which morgue the bodies had been taken, with the result that some
families visited several morgues before finding the bodies of their loved ones.
A number of errors appeared in the initial list, and three inmates listed
as killed turned up alive. No
official information on the survivors had been given by October 6, and although
there was a master list of inmates, official information on the dead and
survivors was not released until October 8.
On October 3 and 5, policemen with their identification tags covered beat
and set police dogs on the grief-stricken family members waiting outside the
The official investigations and the police action
The official investigation
Eight government agencies, six from the state of São Paulo and two
federal ones, investigated the events. The
State agencies were the civil police, the military police, the Prison Service,
the Attorney General, the Judicial Branch, and the Legislative Assembly.
The federal government agencies were the Council for the Defense of Human
Rights, a consultative body within the Ministry of Justice, and the Federal
Council for Policy on Crime and Prisons. Although
their interpretations differed somewhat, none denied the excesses of the
military and their crimes and that prisoners had been killed defenseless in
their cells. None of the agencies
was able to determine individual responsibility for the homicides.
The official state bodies agreed that there had been excessive force used
but in general considered the reaction understandable against the violent action
of the inmates. In general, they
tended to exonerate the police from blame, considering that the planning and
operation by the police had been correct ("perfect" according to the
note from the military police commander conducting the internal investigation)
and justifying the excesses. The
parliamentary investigation prepared mainly by members of the Governor's party
noted that there had been reprehensible excesses that should not be repeated but
did not apportion blame or agree that there had been a "massacre".
The investigation by the Judicial Branch exonerated the magistrates, and
indicated that they had performed their duties adequately.
The federal government investigations, however, noted that "it was
an action with inadequate planning, not coordinated, a criminal action that was
extremely violent and irresponsible. It
indicated that the "São Paulo military police had murdered without
justification 111 prisoners in their custody and under the responsibility of the
state," and that it was the "natural result of the climate of
political violence established in the state of São Paulo during that
period" in which "torture and summary executions was the modus
operandi" (AMR p. 26). However,
these federal bodies are consultative and their recommendations are not binding,
as indicated publicly by the Hon. Mr. Cardozo, then Minister of External
Relations, who alleged that there was no legal mechanism whereby the federal
government could ensure that those responsible were properly judged in the state
The Commission concludes that various bodies of the state of São Paulo
and the federal government investigated the facts.
Although they were all hampered by actions on the part of the São Paulo
military police to conceal and destroy evidence as indicated earlier, there is
evidently a contrast between the findings of the state bodies which tended to
minimize, justify, and exonerate from blame the state's civil and police
authorities, and those of the Brazilian government which conclude on the basis
of the evidence that there occurred a massacre of prisoners and serious and
systematic violations of rights on the part of the state police authorities.
The Commission also finds that in the present case, the federal
government had no effective mechanisms to ensure that federal agencies comply
with the international commitments of the Republic of Brazil with respect to
human rights or to establish by federal means other mechanisms to prevent, act
on, correct, or offset such failings by the states.
As indicated earlier in the section analyzing exhaustion of domestic
remedies (paragraphs 39-51) none of those responsible had been punished seven
years after the events had taken place. In
one of the proceedings, the statute of limitations had expired, in others the
proceedings became bogged down, and in others those charged were acquitted.
The proceedings against Commander Guimaraes were obstructed by the
parliamentary immunity he has enjoyed since January 1997 until the end of his
mandate in 1999 as a member of the Legislative Assembly.
The Legislative Assembly, despite numerous requests from national and
international organizations, had refused to remove his immunity as a member and
the proceedings against the Commander had therefore come to a standstill.
Also, the families have not been paid fair compensation. In this regard, the Commission was informed by the State that
proceedings to determine compensation had been initiated and that in 49 cases
compensation had already been received for the families.
The Commission was informed, however, that such compensation although
ordered, was not effectively paid out because funds had not been appropriated
for this purpose in the state budget. The
government also indicated that the state had acknowledged civil liability in the
civil courts and that a decision in the criminal courts was pending.
As further indicated in the section analyzing exhaustion of domestic
remedies, the proceedings before the military courts in which 121 military
policemen were charged had been transferred to the civil courts in March 1996
(three and one half years after the riot) on grounds that civilians had also
been charged. The proceedings,
however, were delayed for nearly a year without justification by the Supreme
Court of São Paulo for purposes of determining jurisdiction.
This process was not concluded until April 1997, although law 9,099 had
entered into force on August 7, 1996, permitting the transfer to civil
jurisdiction of crimes committed against civilian lives with malice aforethought
by members of the military police or the Prosecutor, once the Bicudo Act was in
The proceedings against the 120 military policemen went to trial by jury
in November 1998 with the defendants being found not guilty, a verdict that was
appealed by the Prosecutor. In the
proceedings (266/93) against military police officer Edson Faroro and the Warden
of the Prison, Ismael Pedrosa, charged with abuse of authority, the defendants
were acquitted in September 1997.
The proceedings against seven military policemen charged with seriously
injuring an inmate, Edson Xavier dos Santos, were suspended at the request of
the Attorney General in accordance with Article 89 of the Bicudo Act, which
provides for the possibility of a conditional suspension of a trial for crimes
with a minimum sentence of a year in prison.
This crime of causing serious injury against the inmate was committed
after the rioters had surrendered and were being beaten by the police.
The Commission finds that the different judicial proceedings by the
military and civil courts of São Paulo were subjected to numerous unwarranted
delays and postponements, failed to establish the truth of what happened and
corporate and individual responsibility, and did not award adequate compensation
to the victims and their families. The
Commission further concludes that, despite the destruction of evidence by the
military police, already noted, there were other pieces of evidence that would
have permitted a serious and thorough investigation, which was not carried out
by the prosecutors' offices and magistrates, contributing to the failure to
establish the truth and responsibility and to the resulting impunity.
Right to life (Article 4) and personal integrity (Article 5)
The American Convention on Human Rights consacrates the rights to life
and personal integrity as basic human rights that the State must respect,
enforce, and guarantee. (Articles
1(1), 4 and 5).
The Court has stated that:
The analysis that must be made has to do with the right of the State to
use force, even if this implies depriving people of their lives to maintain law
and order, an issue that currently is not under discussion. There is an abundance of reflections in philosophy and
history as to how the death of individuals in these circumstances generates no
responsibility whatsoever against the State or its officials.
Without question, the State has the right and duty to guarantee its
security. It is also indisputable
that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and
the culpability of the perpetrators of certain crimes, the power of the State is
not unlimited, nor may the State resort to any means to attain its ends.
The State is subject to law and morality.
Disrespect for human dignity cannot serve as the basis of any State
An analysis of the facts, the official and private investigations, the
large body of evidence presented in the case and to the Commission and the
acknowledgement of responsibility by the Brazilian State itself show clearly
that in the Carandirú riot the inmates were not killed or wounded by the agents
of the state in self-defense. They
were murdered or wounded in deliberate and systematic infringements of their
rights to life and integrity in violation of Articles 4(1) and 5 of the
The obligation of the State and its agent to respect the life and
personal integrity of persons in their care includes providing proper and timely
information to their families on the condition of their loved ones, an
obligation that is particularly sensitive in situations of friction and violence
as in the present case. The
failure, through negligence or fraud, to notify the families, who had been
waiting for days immediately outside the prison for reliable news, is in itself
a violation and causes a specific harm for which the State must assume
responsibility and make amends and every effort must be made to ensure that it
is not repeated.
The October 2, 1992, massacre at Carandirú and its background and
immediate effects must be examined as well in terms of the State's obligation:
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.
The Commission concludes that neither the state of São Paulo nor the
Federative Republic of Brazil took before, during, or after the riot steps to
organize its government structure in such a way as to avoid tragedies of this
kind. An examination of the
background information shows that before the events in question and taking into
account the prison conditions, the State had not developed any plans or
strategies to resolve the problems effectively and legally or to address the
frequent outbursts of violence that the situation caused.
First, the overcrowding and unsuitable living conditions were illegal and
increased the likelihood of violence. What
had been an altercation between inmates was mishandled to the extent that it
degenerated into a riot against the ineffective guards in charge of prison
security. The absence of any
mechanism to bring incidents quickly under control caused the violence to flair
up and grow, involving a large number of inmates. The negotiating capacity of the prison authorities was
minimal and was swept aside and undermined by the military police command.
It was also denied because of the orders issued to the police by the
civil authorities, particularly the Secretary of Security for the state.
The action by magistrates responsible for prison supervision was also cut
short by the police through an inversion of the decision-making hierarchy for a
situation of this kind. In fact,
the state's entire action strategy rested on the immediate use of all available
force, in a manner that was totally disproportionate and ruled out any strategy
that might resolve the situation effectively with respect for life and personal
integrity of the inmates. The
systematic use of deadly disproportionate violence by the São Paulo military
police in the handling of public security, which is backed by the official
statistics for those years, served as a blueprint that was tragically repeated
in the suppression of the October 2 riot. The
lack of planning by the State in terms of taking steps to improve the living
conditions in the facility as well as to organize strategies that were legal,
effective, and compatible with respect for life in the handling of emergency
situations in correctional facilities is also a violation of the international
commitments established by the Convention (Articles 4 and 5, in conjunction with
Right to judicial guarantees and due process (Articles 8 and 25 of the
Article 25 of the American Convention states that:
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.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
b) to develop the possibilities of
judicial remedy; and
c) to ensure that the competent
authorities shall enforce such remedies when granted.
The Court has ruled that, according to the Convention,
Parties have an obligation to provide effective judicial remedies to victims of
human rights violations (Art. 25), remedies that must be substantiated in
accordance with the rules of due process of law (Art. 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 to all persons subject to their
... the absence of an effective remedy to violations of the rights
recognized by the Convention is itself a violation of the Convention by the
State Party .... for such a remedy to exist, it is not sufficient that it be
provided for ... or that it be formally recognized, but rather it must be truly
effective in establishing whether there has been a violation of human rights and
in providing redress. A remedy
which proves illusory because of the general conditions prevailing in the
country, or even in the particular circumstances of a given case, cannot be
considered effective. That could be the case, for example, when practice has
shown its ineffectiveness: when the
Judicial Power lacks the necessary independence to render impartial decisions or
the means to carry out its judgments; or in any other situation that constitutes
a denial of justice, as when there is an unjustified delay in the decision.
The Commission concludes
that the total impunity to date for the events of October 2, 1992, as
demonstrated by: (a) the lack of efficient action by the judges present when the
riot was put down and immediately thereafter and the obstruction of their
actions by the police forces; (b) the destruction and intentional distortion of
evidence immediately following the riot and its suppression; (c) the unwarranted
delay in the main trial in both the military judiciary and the appeal before the
High Court of Justice; (d) the negligence that
allowed a case for minor injuries inflicted
on a prisoner to prescribe due to the statute of limitations (paragraph
42); (e) the dropping of the serious injury charges; and (f) the failure to
revoke the parliamentary immunity of the commander of the unit that put down the
riot, shows that the State has violated its commitment to respect and guarantee
the right to justice and to a fair trial enshrined in the Convention (Art. 1(1),
8, and 25). This proven ineffectiveness and negligence in the judicial
intervention during the events and in the military and civilian criminal
proceedings is such that seven years later total impunity of the perpetrators
persists; there is no complete, official version of the events; and no one has
assumed responsibility specifically for those events or for redressing them.
The Commission has indicated in a decision that:
The Constitutions of the Federative Republic of Brazil and the State of São
Paulo contain similar Articles that establish the inviolability of deputies and
senators for “their opinions, words, and votes” (Constitution of Brazil,
Article 53) and prohibit the arrest, criminal prosecution, or incarceration “without
prior authorization by the respective House (bold added by the Commission)
from the date of the issuance of the certificate of electoral victory, except in
flagrante delicto of an unbailable
crime” (Constitution of Brazil, Article 53(1)), which suspends “the
limitation for the duration of the term of office” (Constitution of Brazil,
In this case, Colonel Guimaraes, the commander of the forces responsible
for suppressing the riot and indicted for multiple intentional homicide and
other serious offenses was elected in 1997 to the parliament of the State of São
Paulo, which granted him parliamentary immunity until his term ended in early
1999, when he lost his bid for reelection. Despite the notoriety of the case and
the requests made by different organizations and various members of parliament,
the legislature of São Paulo refrained from revoking his immunity throughout
The Commission notes with concern that pursuant to Brazilian law (and in
this case due to the inaction of the parliament of the State of São Paulo), a
parliamentarian, merely because he was elected, can escape criminal prosecution,
even for serious offenses, including homicide with perfidy and torture,
committed prior to or during his term in office. Although the Commission
understands the need for parliamentary immunity, particularly for actions
related to parliamentary activities, when that immunity translates into total
impunity, such as in this case of serious human rights violations, it is not
consistent with the essential commitments of the State set forth in the American
Convention. If allowed, this would deny victims the right to effective judicial
recourse, as required in Article 25 of the Convention.
The obligation to investigate
Failure to fulfill the obligation to conduct an immediate investigation
took various forms in the present case. These
include the responsibility of the military police itself in destroying the
evidence and the failure of the civil police to step with a rigorous
investigation documenting and preserving physical evidence in the cell block,
the shortcomings in the forensic autopsies, and failings on the part of the São
Paulo Attorney General and state judicial bodies which did not make use of the
body of still existing evidence, which could have led to those responsible being
effectively brought to justice.
Although the obligation to investigate is an obligation of
"means" and not of "result", when the State is presented
with a case of this magnitude it must make full use of its administrative
apparatus, law enforcement bodies, and the Attorney General to conduct an
investigation, that is serious, exhaustive, impartial, and conclusive, supported
insofar as is necessary by the political and legislative bodies, something that
did not occur. Here, the Commission draws attention to the fact that when
the central government concluded from its investigations that an unjustified
massacre had occurred, the Federative Republic of Brazil had no effective
mechanisms to require that the state of São Paulo conduct a more thorough
investigation so that effective administrative and judicial proceedings could be
instituted in accordance with the State's international commitments.
The Commission concludes, therefore, that the State failed to fulfill its
obligation to investigate in an exhaustive, impartial, and conclusive manner the
events that occurred at Carandirú, thus contributing to the resulting impunity
and lack of compensation.
The obligation to try and punish those responsible
The Commission concludes that the State has not fulfilled its obligation
to prosecute and punish those responsible.
As a corollary to Article 1(1) of the Convention, the State has the
obligation to guarantee the full exercise of the rights recognized therein and
must make provision for, investigate, and punish any violation.
The State contended that various proceedings had been initiated and were
being conducted in accordance with domestic legislation and in observance of
procedural guarantees. However, the
analysis of the course and results of these proceedings confirms that they have
encountered unwarranted delays, have been conducted negligently, and have been
hampered by obstacles of all kinds, all with a view to ensuring, inadvertently
or intentionally, the impunity of the those responsible.
Seven years after the events, the inability to fully punish those
responsible is the ultimate expression of noncompliance of the obligation set
out in Article 1(1) of the Convention.
This obligation is breached by the absence of any effective punishment
for those charged and a series of violations and crimes that went unpunished,
namely: the inability to take the
necessary steps to preserve evidence, the inability of the judicial authorities
to intervene while the events were taking place, the lack of serious and
effective action by the Attorney General to prosecute those charged as being
directly responsible or accessories, insufficient domestic legal remedies to
activate federal mechanisms to reinforce the federal government's prosecutorial
capacity when it is unable to fulfill the minimum standards guaranteeing
recognized rights; and the decision of the Legislative Assembly of São Paulo
not to remove parliamentary immunity from one of its members, who has been
charged, as commander of the operation that ultimately perpetrated voluntary
manslaughter and other atrocious crimes.
The obligation to provide compensation
In addition, the Court notes the failure on the part of the State of
Brazil to provide compensation to the victims or their families, if applicable.
The State has the obligation to ensure that the victim receives fair
compensation for the violations of the Convention as a result of action by its
agents or the lack of adequate guarantees.
Such compensation is not separate from the existence of a violation of
the Convention, and in this case, the violations of the right to life, personal
integrity, access to justice, and judicial guarantees have been clearly
The Inter-American Court in commenting on the obligation to
"guarantee" the rights established in Article 1(1) of the Convention,
a consequence of this obligation, the State must ... moreover, if possible,
attempt to restore the right violated and provide compensation as warranted for
damages resulting from the violation of human rights.
The compensation of the victims is not limited to financial compensation.
It must include measures to compensate, rehabilitate in the case of
wounded survivors, provide satisfaction for moral damages to the families and
guarantee that it will not be repeated. The
Commission notes that although the State initiated judicial proceedings for
compensation several years after the events they had not yet been effective
according to the information possessed by the Commission, and also the
unjustified delay in the criminal proceedings as well as their ineffectiveness
have prevented the victims from initiating civil proceedings for the
compensation and restitution. This in itself is a violation independent of the Convention,
for which the State is responsible and which must be corrected.
The Commission recalls that under international law:
States have the duty to adopt, when the situation so requires, special measures
to permit compensation to be granted, quickly, fully, and effectively.
subsequent to Report Nº 120/99 (Article 50)
The Commission forwarded the aforementioned report to the State on
October 26, 1999 and gave it two months to comply with the recommendations
therein. It also informed the petitioners of the approval of a report under the
terms of Article 50 of the Convention. The deadline passed, and the Commission
did not receive the State’s reply regarding those recommendations.
INTER-AMERICAN COMISSION OF HUMAN RIGHTS,
1. That it is
competent to hear the present case and that the petition is admissible in
accordance with Articles 46 and 47 of the American Convention.
2. That the
Federative Republic of Brazil violated its obligations under Article 4 (right to
life) and Article 5 (right to personal integrity) in causing the deaths of 111
persons and in wounding an indefinite number of others, all of whom were in its
custody, during the suppression of the Carandirú prison riot on October 2,
1992, as a result of actions by the agents of the São Paulo military police.
That the Federative Republic of Brazil is responsible for the violation
of the aforesaid Articles of the Convention as a result of noncompliance with
the conditions of detention of the inmates at Carandirú and the absence of
appropriate strategies and measures to provide for situations of violence and to
put down potential riots. The
Commission acknowledges that steps have been taken to improve conditions of
detention, particularly through the building of new correctional facilities, the
setting of new standards for detention, and the establishment within the state
of São Paulo of a special Secretariat in charge of such matters.
4. That the
Federative Republic of Brazil is responsible for the violation of Articles 8 and
25 (guarantees and judicial protection) in conjunction with Article 1(1) of the
Convention owing to the failure to investigate, bring to trial, and punish
seriously and effectively those responsible and the lack of effective
compensation for the victims of these violations and their families.
On the basis of the analysis and the conclusions of this report,
The Inter-American Commission of Human Rights recommends that the
Federative Republic of Brazil:
Conduct a full, impartial, and effective investigation of these
violations with a view to identifying and prosecuting the authorities and
functionaries responsible for the violations of the human rights as indicated in
the conclusions of this report.
Take such steps as are necessary to ensure that the victims of these
violations who have been identified and their families receive fair and timely
compensation for the violations indicated in the conclusions of this report and
to identify those not identified.
Develop policies and strategies to ease congestion in detention centers,
introduce programs for rehabilitation and social integration in accordance with
national and international standards, and provide for outbursts of violence at
such establishments. Develop policies and strategies and provide special
training to correctional facilities and law enforcement personnel in negotiating
peaceful settlements of conflicts, and methods for restoring order that make it
possible to suppress possible riots with minimal risk to the life and personal
integrity of the inmates and law enforcement agencies.
Adopt measures necessaries for fulfilling in this case Art. 28 (Federal
Clause) of the Convention at the level of the national government such measures
as are needed, in accordance with the Constitution and laws of Brazil.
On February 24, 2000, the Commission decided to transmit this report to
the Brazilian State, which it did on March 3, 2000, pursuant to Article 51 of
the Convention. The Commission gave the State one month from the date it was
sent to comply with the aforementioned recommendations. The deadline has since
passed, and the Commission did not receive a reply from the State in this
In view of the above and in keeping with Article 51(3) of the American
Convention and Article 48 of the Regulations, the Commission decides to
reiterate the foregoing conclusions and recommendations, to publish this report,
and to include it in its Annual Report to the OAS General Assembly. In
fulfillment of its mandate, the Commission will continue to evaluate the
measures taken by the Brazilian State regarding those recommendations, until
they are executed in full.
by the Inter-American Commission of Human Rights, on the 13th day of
April of 2000. (Signed):
Claudio Grossman, First Vice Chairman; Juan Méndez, Second Vice
Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman ,Peter Laurie and
Julio Prado Vallejo.
Hélio Bicudo, a Brazilian national, who is a member of the Commission, did
not take part in the discussion or in the voting in this case in accordance
with Article 19(2)(a) of the Regulations of the Commission.
Pursuant to Law 9.299/96 issued on August 6, 1996, consideration of the
proceedings relating to the voluntary manslaughter by the military police
would cease to be considered by the military courts and would be handed over
to the civil criminal courts. This
law is known as the Bicudo Act after its principal proponent, Representative
The petitioner furnishes material from newspapers and an Amnesty
International report. See
Amnesty International, Prison Massacre at the Casa de Detencão, Sao
Paulo. AMR 19/0893 P.4, hereinafter called AMR.
Brazil, judicial responsibility for the prisons rests with two magistrates,
the juiz corregedor da policía (police monitoring magistrate), who is
responsible for the well being of the prisoners, and the juiz da vara de
execuções criminais (sentencing magistrate), responsible for supervision
of sentences. The Office of the
Public Prosecutor is also responsible for visiting the prisons regularly and
for intervening in cases of abuse.
See Amnesty International, Prison Massacre at the Casa de Detenção,
Sao Paulo. AMR 19.08093 P.4.
The number of wounded has never been definitely established and the figures
in official versions vary. Reports
after the event indicate that inmates originally wounded in the repression
were subsequently executed.
Note from the petitioner, October 8, 1997.
Folha de São Paulo, September 28, 1997.
Communication from the petitioner in March 1995 made available to the State.
Inter-American Court of Human Rights. Neira Alegria Case, Decision of
January 19,1995, para. 60
He cites the judgments in the Velásquez Rodríguez case of July 29, 1988,
para. 174 and the Godinez Cruz case of January 20, 1989, para. 185.
Judgment on pp. 112.
At that time, Law 9,299 was not yet in force, the transfer was therefore not
based on the law but on the alleged responsibility of the civil authorities.
The State has not denied at any time the facts alleged in the petition, and
has forwarded to the Commission information indicating that it generally
accepts responsibility for the violations committed.
In statements by newsmen obtained by the Commission, Luiz Antonio
Fleury Filho, Governor of Sao Paulo at the time of the events and who had
been Secretary of Public Security before becoming Governor, subsequently
agreed that what had taken place was a massacre which he attributed to the
fact that when Commander Guimaraes fell wounded, the police officers who,
according to him, had been running the operation correctly until then
"lost control and started acting on their own in what could be termed a
massacre or extermination". He
maintained that the instructions that had been given were appropriate and
legal (Folha de Sao Paulo,
September 28, 1997).
The program proposes initially to build nine prisons, of which six would be
maximum security, two medium security, and one a detention center for
detainees awaiting sentencing. Each
prison facility will house 600 inmates, and the detention center 3,600.
In a second stage, an additional 25 prisons will be constructed, to
house 600 inmates each. In all,
every effort will be made to rehabilitate the inmates.
Brazil ratified the American Convention on Human Rights on September 25,
Mónica, La denuncia ante la Comisión
Interamericana de Derechos Humanos, Editores del Puerto, page 64
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, paragraphs 62-66; Fairén Garbi and Solís Corrales case,
Preliminary Objections, March 15, 1989, paragraphs 86‑90; Godínez
Cruz case, Judgment of January 20, 1989, paragraphs 65-69.
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment
of July 29, 1988, paragraph 72; Fairén Garbi and Solís Corrales case,
Preliminary Objections, March 15, 1989, paragraph 97; Godínez Cruz case,
Judgment of January 20, 1989, paragraph 75.
Inter-American Court of Human Rights, Godínez Cruz case, Judgment of June
26, 1987, paragraph 95.
This type of delay has a negative effect on the effectiveness of domestic
judicial remedies since it leads to a deterioration in the quality of the
evidence, particularly in the testimony of witnesses who, with the passage
of time, may change or tend to forget the facts.
This certainly undermines the effectiveness of the proceedings to
determine responsibility and punish those found guilty.
Inter-American Court of Human Rights, Godínez Cruz case, Judgment of June
26, 1987, paragraph 95.
AMR, page 6.
of the Archidiocese of Sao Paulo, “Elementos
para una reflexion buscando respuestas a la cuestion de rebeliones y rehenes.
May 1998, page 5. Quoted by the IACHR Report on the human rights situation
in Brazil, 1995.
same legislative Commission compared this record with that of the New York
police department for 1991. In
New York, the police in their fight against crime caused the deaths of 27
civilians, compared with 1,140 by the Sao Paulo military police.
More important still, the ratio of dead to wounded for the New York
police was one to two compared with three to one for the Sao Paulo military
Inter American Court on Human Rights. Caso Neira Alegría, Decision of
January 19, 1995, para. 60
on January 19, 1995, para. 60 and 61. As stated by Article 5(2) of the
Convention every person deprived of his liberty shall be treated with
respect, and under detention conditions compatibles with the dignity of the
human person, and the State has to guarantee his right to life and personal
integrity. Therefore, the State, as responsible for the detention facilities
es the guarantor of this rights of the detainees.
Communication from the three magistrates issued on October 8. AMR, op.cit.
IACHR –Case 11.137 Abella - Argentina Annual Report 1997, para. 414-415
Case 11.411 Ejido Morelia‑Mexico.
1997 Annual Report, paragraphs 109 to 111 of the report on the
Parliamentary Inquiry by the Legislative Assembly of Sao Paulo, quoted by
Amnesty International, AMR 19-8-93, p. 17.
AMR 19/0893 p. 18.
The parliamentary opposition disagreed with the findings, publishing its own
report, making public testimony and documents collected.
It indicated that there had been no mitigating circumstances for the
murders, and requested that the participants be tried individually and that
the Secretary of Public Security, his assistants, and the magistrates
involved be prosecuted for malfeasance. (AMR p. 26)
4. Right to Life. 1. Every person has the right to have his life respected.
...No one shall be arbitrarily deprived of his life. Article 5 Right to
Humane Treatment (1) Every person has the right to have his physical, mental
and moral integrity respected. 2. No one shall be subjected to torture or to
cruel, inhuman or degrading punishment or treatment. All persons deprived of
their liberty shall be treated with respect for the inherent dignity of the
human person. Article 1. Obligation to Respect Rights. (1) The States
Parties in this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction
the free exercise of those rights and freedoms, without any
Alegría case, Judgment of January 19, 1995 (para. 74).
Veládquez Rodríguez case, Judgment on the merits, para. 154; Godínez Cruz
case, id. para. 162; Neira Alegría et
al case, Judgment of January 19, 1995, para. 75).
IACHR. Velásquez Rodríguez
case, Judgment on the merits, para. 166-68.
Inter-American Court of Human Rights, Velásquez Rodríguez, Fairen Garbi
and Solis Corrales, and Godinez Cruz cases, Preliminary Objections,
Judgments of June 26, 1987, para. 91, 90 and 92, respectively.
As the victim of an execution or murder is not in a position to seek legal
compensation, that right necessarily passes to the victim's family.
See reports 28‑92 (Argentina) and 29‑92 (Uruguay) IACHR
Annual Report 1992‑93, pages 51‑53 and 169-174.
Also Court, Velásquez Rodríguez case, Judgment on the merits.
Inter-American Court of Human Rights, Advisory Opinion OC-9/87 of October 6,
1987. Series A Nº 9 par. 24.
Inter-American Court of Human Rights,
Case 11,520 “Aguas Blancas” Mexico, paragraph 132, published in the 1998
Annual Report of the IACHR.
Constitution of the Federative Republic of Brazil, Section V on Deputies and
Senators, Article 53.
and Senators enjoy inviolability on account of their opinions, words, and
From the date of the issuance of the certificate of electoral
victory, the members of the National Congress may not be arrested, except in
flagrante delicto of an unbailable crime, nor may they be criminally
prosecuted, without prior authorization by the respective House.
Rejection of the demand for authorization or the absence of a
decision shall suspend the limitation for the duration of the term of
On this topic, please see, Parliamentary Immunities and Prohibitions in “Celso Ribeiro Bastos
Curso de Direito Constitucional,” Ed. Saraiva, 1994, p. 306.
Inter-American Court of Human Rights,
Velásquez Rodríguez, loc. cit. para. 166, 174.
Inter-American Court of Human Rights, Velásquez Rodríguez case, judgment
cit., para. 166.
 Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law. E7CN.47SUB 2/1996/97/17, PRINCIPIO 7.