... continued

          XIX.     CONSIDERATIONS REGARDING ADMISSIBILITY

          95.     The facts recounted by the petitioner in the petition describe possible violations of human rights, which will be examined when the merits of the case are considered in the corresponding phase of proceedings.  The Commission will now examine the formal requirements that the petition must meet to be admitted.

          96.     Article 46 of the Convention, cited above, establishes the requirements for a petition to be admitted. In the petition presented in September 1994, the petitioner reported that five years after the crime was committed, the first hearing to take testimony was finally held on May 25, 1988.  The previously scheduled hearings had been postponed for various reasons, including the defendant's promotion and the removal of one of the two military officers on the Permanent Council of Justice because he was himself a defendant in a military criminal proceeding.

          97.     The petitioner added that the trial was held on October 15, 1991. The defendant was acquitted on the grounds of insufficient evidence, despite the fact that there were a number of eye witnesses to the assault.  The verdict of acquittal was written down but by the time the petition was filed -- three years after the trial -- had still not been signed by the military officers on the Permanent Council of Justice.  According to the petitioner, until the verdict was signed no appeal could be filed.  The petitioner argued the case for an exception to the rule requiring exhaustion of the remedies under domestic law so that the petition might be admitted.

          98.     In its reply of June 1995, the Government acknowledged that four years had passed between the time the verdict was handed down and the time it was published.  It reported that the defendant had been acquitted unanimously in a verdict handed down on October 15, 1991, and then read and published on March 30, 1995.  The acquittal was appealed and the files were with the public prosecutor's office awaiting presentation of the grounds for the appeal that had been lodged.  The Government argued that the remedies under domestic law had not been exhausted, as the additional phases of the proceedings required by law to convict and sentence those eventually found guilty, had not been completed.

          99.     Article 46(2)(c) of the Convention stipulates that the provisions of paragraphs (1)(a) (exhaustion of the remedies under domestic law) and (1)(b) (time period for filing a petition) shall not apply when there has been an unwarranted delay in rendering judgment under the aforementioned remedies. The same is stated by Article 37(2)(c), of the Regulations of the Commission.^[8]

          100.The petitioner alleged that the initial phase of the proceedings, the criminal investigation, took eight years to conclude because hearings were repeatedly postponed.  When the trial was finally held, the defendant was acquitted, although the verdict had still not been published as of the date of the petition, which was almost three years after the trial.  The Government acknowledged that there had been a lapse of over four years between the trial and publication of the court's verdict, and reported that the defendant had been acquitted unanimously in a trial held on October 15, 1991, the verdict of which was not read and published until March 30, 1995.  Twelve years after the crime was committed, the verdict was still not final, because the acquittal was being appealed and the case files were with the public prosecutor's office pending reception of the grounds for the appeal.  The Commission considers that a final verdict is long overdue and grants the exception to the rule requiring exhaustion of the remedies under domestic law, according to Articles 46(2)(c) of the Convencion and 37(2)(c) of its Regulations.

          101.    The most recent communication from the petitioner, dated February 1996, reported that the case files were still with the public prosecutor's office with a view to making a case for the appeal filed against the verdict that acquitted the defendant charged with murder.  There has been an unwarranted delay in justice.  The Commission considers that the exception provided for in Article 46(2)(c) of the Convention applies, and that the petition was filed within the reasonable time period stipulated in Article 38(2) of its Regulations.^[9]

          102.    The Commission knows of no other similar body that is presently examining this case nor does the Government claim such knowledge.  The petitioner has also complied with the formal requirements of Article 44 of the Convention.

            CASE 11.414 (OZEAS ANTONIO DOS SANTOS)

          XX.      BACKGROUND

          103.    The Commission received a petition in September 1994, to the effect that metallurgist Ozeas Antônio dos Santos, a 27 year-old married man, was killed in his home in a gun fight with police.  He was shot by Captain Roberval Conte Lopes Lima and R.O.T.A. (Toribio Aguiar Vigilante Group) Lieutenant Sérgio Teixeira Alves, both with the military police, on the night of March 16, 1982, on the south side of the city of São Paulo.

          104.    The petition explained that the police operation was conducted because the victim was a suspect in the slaying of Jesus Marques Vieira, who was killed some days before the victim was killed.  Shortly after these events, the police themselves concluded that the victim was not the killer and that he only fired back because he was frightened.  The victim owned a 32-caliber Taurus revolver, which was never found.  The autopsy found that the bullets that killed the victim and another police officer and injured three other police officers came from a 38-caliber weapon.

          105.    Police Inquiry No. 747/82 named military police officers Roberval Conte Lopes and Sérgio Teixeira Alves as the individuals responsible for the victim's death.  The two military police officers were indicted on charges of murder [CHECK: HOMOCIDIO CULPOSO], which led to Case No. 74,820/82, heard in the second military court.  Later, when defendant Roberval Conte Lopes was elected a state deputy, he invoked a clause in the São Paulo State Constitution which requires the Legislative Assembly's authorization before a congressman can be prosecuted on criminal charges.  More than twelve years after the crime, the Tribunal of Justice was still awaiting the Legislative Assembly's authorization. The petitioner alleged that the unwarranted delay on the part of the Brazilian authorities was a flagrant violation of articles XVIII and XXIV of the American Declaration of the Rights and Duties of Man and of articles 8(1) and 25(1) of the American Convention on Human Rights.

          106.    Military police officer Sérgio Teixeira Alves was acquitted in a ruling handed down on July 28, 1994.  This was the ruling sought by the public prosecutor's office, which argued that the police officer had acted in self-defense.

          107.    The victim's widow and children sued for indemnization with the second District Treasury Court of São Paulo, Case No. 153/87.  The lower-court ruling dismissed the suit, and the appellate court verdict upheld the lower court ruling. [CHECK]

          XXI.     PROCEEDINGS BEFORE THE COMMISSION

          108.    The Commission received the petition in September 1994 and forwarded the pertinent parts thereof to the Government on December 13. In June 1995, the Commission received the Government's reply, wherein it stated that Case No. 19,269/82, to ascertain responsibility in the death of Ozeas Antônio dos Santos, was heard in the second military court of São Paulo.  The defendants in the case were military police Captain Roberval Conte Lopes Lima and military police Second Lieutenant Sérgio Teixeira Alves.

          109.    The Government argued that because the principal defendant had been elected a State Deputy, he was no longer under the jurisdiction of the military courts and, on May 18, 1987, the case file was forwarded to the Tribunal of Justice of São Paulo, where they were assigned No. 7,428-0/0. The Government also said that a copy of the case file was returned to the State Military High Court on May 31, 1993, for the trial of defendant Sérgio Teixeira Alves.  His trial was on July 29, 1994.  The verdict was unanimous acquittal and was read on September 28, 1994.  The case was filed on December 15 of that year.

          110.    The Government explained that the principal files concerning the responsibility of Roberval Conte Lopes Lima, were then with the São Paulo State Tribunal of Justice. The Government alleged that the remedies under domestic law had not been exhausted since the additional phases of the proceedings required by law to convict and sentence those eventually found responsible had not been completed.

          111.    In August 1995, the petitioner responded stating that the files of the case against Captain Roberval Conte Lopes Lima - who was the principal defendant in the case and had been elected to the São Paulo State Legislative Assembly- had been with the State Tribunal of Justice since May 1987, awaiting the Legislative Assembly's authorization to prosecute him; given the amount of time that had passed, it was almost certain that the case would go unresolved; the suit filed on behalf of the victim's wife was not upheld by the regular courts, which found that the victim had died in a shoot-out with the police.

          112.    In September 1995, the Commission forwarded the Government's observations to the petitioner, giving it 30 days in which to make its observations.  In October 1995, the Commission received additional information from the petitioner wherein the latter repeats the earlier observations and responds to the Government's assertion that the remedies under domestic law had not been exhausted.  The petitioner stated that the facts reported in the petition occurred in March 1983 and that almost 13 years later, the chief defendant in the victim's death had still not been tried.  The petitioner therefore requested the exception to the rule requiring exhaustion of the remedies under domestic law, pursuant to the provisions of Article 37(2)(c) of the Commission's Regulations.

          113.    In November 1995, the Commission received the Government's observations, where it replied to the petitioner's allegation that it was a virtual certainty that the case would go unresolved since, under Brazil's legal system, anyone elected to the Legislature enjoyed parliamentary immunity.  The decision as to whether to suspend that immunity for purposes of the congressman's prosecution was, the Government stated,  the exclusive purview of the legislative body of which the interested party was a member; enjoyment of parliamentary immunity suspended the statute of limitations, so that parliamentary immunity had no effect on the statute of limitations with respect to the crime or liability to punishment.

          114.    In November, the Commission forwarded the Government's observations to the petitioner.  In February 1996, the Commission received the petitioner's observations, which stated that:  the Brazilian State, through its three branches (executive, legislative and judicial), was the agent responsible for promoting and ensuring basic rights; the parliamentary immunity that the defendant enjoyed in the case in question ought not to become synonymous with impunity; given the fact that the victim had been killed 13 years earlier and the fact that for 10 years all proceedings had been halted, to await the São Paulo State Legislative Assembly's authorization to proceed, it was impossible to establish the author's responsibility, which would only happen if the immunity privileges were suspended.  The petitioner stated that with all this, his fear that the case would remain unresolved was well founded.

          115.    In April 1996, the Commission forwarded the petitioner's observations to the Government and requested its final observations within 30 days.  The Commission reiterated its request in September 1996 and again in November 1996, at which time it pointed out that if the Government did not respond within 30 days, its observations of November 1995 would be taken as its final observations.

          XXII.    CONSIDERATIONS REGARDING ADMISSIBILITY

          116.    The facts recounted by the petitioners describe possible violations of human rights, which will be examined when the merits of the case are analyzed at the appropriate point in the proceedings.  The Commission will now examine the formal requirements for the petition to be admitted.

          117.    Article 46 of the Convention, cited above, establishes the requirements for the petition to be admitted. In the petition lodged in September 1994, the petitioner informed the Commission that 12 years after the crime, one of the accused had still not been tried and the other, at the request of the public prosecutor's office, had been acquitted on the grounds that the defendant acted in self-defense.

          118.    In its reply of June 1995, the Government alleged that one of the defendants had been tried and acquitted and that the files in the case against the other defendant were with the São Paulo Tribunal of Justice, inasmuch as said defendant had been elected a State Deputy.  The Government also alleged that the remedies under domestic law had not been exhausted, since the additional phases of the proceedings required by law to convict and sentence those eventually found guilty had still not been completed.  Later, the petitioner reported and the Government confirmed, that the proceedings had been at a halt for ten years, and would only resume with the Legislative Assembly's authorization, inasmuch as deputies enjoyed parliamentary immunity.

          119.    Article 46(2)(c) of the Convention stipulates that the provisions of paragraphs (1)(a) (exhaustion of the remedies under domestic law) and (1)(b) (deadline for presenting the petition) shall not apply when there has been an unwarranted delay in rendering a judgment under the aforementioned remedies. The same is stated by Article 37(2)(c), of the Regulations of the Commission.^[10] The Commission considers that the trial of the other defendant is long overdue and grants the exception to the rule requiring exhaustion of the remedies under domestic law, pursuant to Articles 46 (2) (c) of the Convention and 37(2)(c) of the Regulations.

          120.    In his last communication, received in February 1996, the petitioner reported that the case files were still with the São Paulo State Tribunal of Justice, awaiting the Legislative Assembly's authorization to proceed against the other defendant charged in the case.  The Commission considers that the exception provided for in Article 46(2)(c) applies and therefore believes that the petition was presented with a reasonable time period, as stipulated in Article 38(2) of its  Regulations.^[11]

          121.    The Commission knows of no other similar body that is presently examining this case nor does the Government claim such knowledge. The petitioner has also complied with the formal requirements of Article 44 of the Convention.

            CASE 11.415 (CARLOS ADUARDO GOMES RIBEIRO)

          XXIII.   BACKGROUND

          122.    The Commission received a petition in September 1994 to the effect that Carlos Eduardo Gomes Ribeiro, a 19-year-old salesman, married, was physically assaulted by military police officers Donizetti Aparecido Bezerra da Silva, Dorival Bernardo de Senna, Marcos Aparecido Correa Cesar and Mauro Garofo on May 3, 1989, on the east side of the city of São Paulo.

          123.    The petition alleges that Carlos Eduardo was with three friends -Sérgio Pereira Pinto (18), Edinaldo Camilo Cavalcanti (23), and Nesutã dos Santos (17)- when they were approached by military police who, under the pretext of searching them although nothing was irregular, accosted all four both psychologically and physically.  Carlos Eduardo was left with mild bodily injuries, according to the attached medical report.

          124.    The petition reports that the young men were forced into the police vehicle, after running a gauntlet that the police officers formed to subject them to further mistreatment.  After being taken to the 32nd Police Precinct, where they were warned not to say anything about how they had been treated, they were released.  No record of the incident was registered.

          125.    The second military prosecutor's office indicted the military police officers on July 6, 1990, whereupon Case No. 37,662/89 was opened.  According to the petition, the proceedings moved very slowly and on July 20, 1994, the Judge Advocate of the second military court ruled that the State's punitive authority had prescribed and declared the defendants exempt from punishment.  The responsible parties thus went unpunished because of the extremely slow pace with which the wheels of justice moved. According to the petitioner, in the instant case, therefore, the Government of Brazil had obviously and unjustifiably failed to observe articles XVIII and XXIV of the Declaration of the Rights and Duties of Man and articles 8(1) and 25(1) of the American Convention on Human Rights.

          126.    The victim filed suit for damages before the State Treasury on April 13, 1994.  As of the date of the petition, a notification was still pending since the court was deliberating whether or not to grant the author pro bono legal services.

          XXIV.   PROCEEDINGS BEFORE THE COMMISSION

          127.    The Commission received the petition in September 1994 and forwarded the pertinent parts thereof to the Government on December 14, 1994, giving it 90 days in which to present its observations.  The Government of Brazil requested and was given three consecutive 30-day extensions (Article 34(6) of the Commission's Regulations). 

          128.    In June 1995, the Commission received the Government's reply to the effect that:  Case No. 37,662/89 was in the secondnd military court of São Paulo, and was instituted to ascertain culpability in the assault against Carlos Eduardo Gomes Ribeiro; the defendants were military police corporal Donizetti Aparecido Bezerra da Silva and military police soldiers Dorival Bernardo de Senna, Marcos Aparecido Correa Cesar and Mauro Garofo.  On July 29, 1994, the defendants' liability to punishment was declared to have prescribed on July 23, 1994. The proceedings in the case were, therefore, filed on January 30, 1995.

          129.    On July 11, 1995, the Commission forwarded the Government's reply to the petitioner, allowing 45 days for observations.  In August 1995, the petitioner replied that as the original petition explained and the Government confirmed, the military criminal prosecution had prescribed.  The petitioner added that this frequently occurred in bodily harm cases, because of military court delays in conducting trials.  As for the civil liability suit for damages, the case was still at the investigative phase in the seventh District Treasury Court, as case No. 335/94.

          130.    In September 1995, the Commission received additional information from the petitioner, who stated that the case had prescribed because of the various hearing postponements and the slow pace at which they were conducted, with 11 months between one hearing and the next.  The military courts were responsible for the delays that caused prescription.  The courts failed to perform their function and in so doing had guaranteed that those responsible for the violation of the victim's basic rights would go unpunished.

          131.    The Commission forwarded information from the petitioner to the Government on September 19 and November 2, 1995, respectively, and asked for the following information: the legal reasons why the pre-trial hearings and trial hearings were postponed; the legal reasons why the witnesses were interrogated two years after the fact; a copy of the respective case file, including a copy of the police investigation reports and a copy of the most recent court ruling handed down, if any; a copy of the provisions in the military criminal justice system that apply to prescription under military court proceedings, and any other information or a copy of the pertinent parts of lawbooks that examine the way that Brazilian military criminal law operates on this subject.

          132.    On April 25, 1996, the Commission reiterated its earlier request of the Government, and did so again on September 23 of that year.  However, no reply was forthcoming.

          XXV.    CONSIDERATIONS REGARDING ADMISSIBILITY

          133.    The facts recounted by the petitioner in the petition describe possible violations of human rights guaranteed by the American Convention on Human Rights, which will be examined in due course.  The Commission will now examine the formal requirements for the petition to be admitted.

          134.    Article 46 of the Convention, cited above, establishes the requirements that a petition must meet to be admitted. In the petition filed in September 1994, the petitioner reported that because the military courts were slow to conduct the criminal proceedings the case had prescribed, with the result that the assailants had gone unpunished.  The Government did not allege a failure to exhaust the remedies under domestic law, but confined itself to confirming the fact that the case had prescribed. The Commission finds, therefore, that the remedies under domestic law were exhausted.

          135.    The Commission received the petition in September 1994, three months after the military court found that the case had prescribed and the offense was no longer punishable as of July 1994.  The Commission considers that the declaration that the case had prescribed constitutes a form of setting the start of the deadline referred to under Article 38.1 of its Regulations which reads:

          The Commission shall refrain from taking up those petitions that are lodged after the six month period following the date on which the party whose rights have allegedly been violated has been notified of the final ruling in cases where the remedies under domestic law have been exhausted.

          136.    The Commission knows of no other similar body that is presently examining this case nor does the Government claim such knowledge. The petitioner has also complied with the formal requirements of Article 44 of the Convention.

            CASE 11.286 (ALUISIO CAVALCANTI JR. AND CLAUDIO APRECIDO DE MORAES)

          XXVI.   BACKGROUND

          137.    The Commission  received a petition in February 1994, to the effect that Aluísio Cavalcanti Junior was killed and that Claudio Aparecido de Moraes was the victim of attempted murder; that both crimes were allegedly the work of Sao Paulo state military police officers José Carvalho, Robson Bianchi, Luís Fernando Goncalves, Francisco Carlos Gomes Inocêncio, Rubens Antônio Baldasso and Dirceu Bortoloto, in the Jardim Camargo Velho neighborhood of São Paulo on March 4, 1987.

          138.    The petition states that one of the minors was suspected of murdering the son of one of the two policemen that apprehended them.  The juveniles were taken into custody, questioned, threatened and one juvenile implicated the other as the author of the crime.  The police officers decided to kill both, although, despite the shooting, one survived.

          139.    On November 9, 1987, the military prosecutor indicted Lieutenant Robson Rianchi, Corporal Jose de Carvalho and soldiers Rubens Antônio Baldasso, Luís Fernando Goncalves, Dirceu Bortoloto and Francisco Carlos Gomes Inocêncio for the murder of Aluísio and the attempted murder of Claudio.  Sergeant João Simplício Filho and soldier Roberto Carlos de Assis, who did not participate in the execution per se and were not in favor of it, were indicted for failure to prevent a murder.

          140.    The petition reported that the proceedings in the military courts had had virtually no results and that no one had been taken into custody.  The petition sought to redress the unjustified murder of Aluísio and the attempted murder of Claudio and accused the Government not only of the murder but of failure to investigate and properly punish those directly responsible.  It also asked that the State be condemned for violating its international obligations, specifically articles I, XXV and XXVI of the American Declaration of the Rights and Duties of Man and Articles 8(1) and 25(1) of the American Convention on Human Rights.

          XXVII.  PROCEEDINGS BEFORE THE COMMISSION

          141.    The Commission received the petition in February 1994 and forwarded the pertinent parts thereof to the Government on May 25 of the same year, giving it 90 days in which to present its observations.  In August 1994, the Government of Brazil replied by stating that the federal and state authorities in the executive and judicial branches were working in their respective areas of competence to shed light on the facts with a view to determining where the responsibilities lay.  It asked for and was granted a thirty-day extension.

          142.    In September 1994, the petitioner presented additional information wherein it alleged that the Government had not replied on time since May 25, which was a violation of Article 34(5) of the Commission's Regulations, which stipulated that the Government had to reply within 90 days.  The petitioner went on to say that over seven years after the fact, the case had finally been scheduled to go to trial on August 8, 1994; however, when one of the defendants' attorneys failed to appear, the trial was postponed until September 23, 1994.

          143.    In November 1994, the Government replied that according to information received from the Council for the Defense of Human Rights, from the Ministry of Justice, and from the Secretariat for Public Security of the State of São Paulo, inquiries were carried out by the São Paulo State Military Police Magistrate's Office, as a result of which the Command of the Second Metropolitan Military Police Battalion instituted Military Police Inquiry No. 030/90/87 against all the military police officers implicated in the case.  At the same time Council of Justice Case No. CJ-41/87 was instituted against Second Lieutenant Robson Bianchi.  Disciplinary boards [CHECK - Court martial proceedings?] were also created against Third Sergeant João Simplício Filho, MP soldier Roberto Carlos de Assis and Corporal José de Carvalho.

          144.    The Government added that in the course of the investigation, MP soldier Francisco Carlos Gomes Inocêncio and MP soldier Dirceu Bortoloto were dismissed from service by an administrative decision of the São Paulo State Military Police Commander General.  The São Paulo Military Prosecutor's Office brought an indictment against Lieutenant Robson Bianchi, Corporal José de Carvalho and soldiers Rubens Baldasso, Luis Fernando Goncalves, Dirceu Bortoloto and Francisco Carlos Gomes Inocêncio in November 1987, which led to Case No. 30,051/87, with the trial set for November 26, 1994. Thus, the Government argued that the remedies under domestic law had not been exhausted since the additional phases of the proceedings required by law to convict and punish those eventually found guilty, had not been completed.

          145.    In November 1994, the Commission accumulated another petition on the same case with the following documents taken from the military criminal proceedings attached:  a copy of the military police inquiry report, the indictment brought by the third military prosecutor's office, the autopsy report and medical examiner's report on the victims, and the depositions of the prosecution's witnesses.

          146.    In December 1994, the Commission informed the new petitioner that Case 11,409 had been opened and forwarded the pertinent parts of the petition to the Government.  That same December, the Government replied saying that this was a case of duplication of the kind provided for in Article 39 of the Commission's Regulations and requested that the petition be declared inadmissible for that reason.

          147.    In January 1995, the Commission informed the Government that a mistake had been made and that the information supplied by the second petitioner had been added to the case already being processed. The Government had been duly informed of that information and there had been no infringement of its right to defense and due process in accordance with the Regulations.

          148.    In June 1995, the Commission received additional information from the Government to the effect that at the request of the victim's representative (assistente de acusacão, assistent to the prosecutor), the trial hearing slated for November 26, 1996, was changed to a pre-trial inquiry in order to enter into the record the collective judgment rendered by the Tribunal of Justice in appeal No. 117,669.3/1, as that case was materially related to the case being investigated in the military criminal proceedings.  The trial was rescheduled for May 9, 1995.  In a petition dated May 8, 1995, the victim's representative (or assistent to the prosecutor) again requested that the trial be made a pre-trial inquiry instead, since the appeals ruling in question was not available within a reasonable period of time.  The trial was then rescheduled to July 18, 1995, and the parties and the defendants duly notified.

          149.    In July 1995, the Commission forwarded the Government's additional information to the petitioner and gave the later 45 days in which to make its observations.  In August 1995, the petitioner replied that prior to the request to change the trial to a pre-trial inquiry, other dates had been set for the trial, but it was never held.  The inquiry requested was essential to solving the case; a ruling handed down in the regular courts (as opposed to the military courts) was in the process of becoming final, in which the police officers who were the defendants in the military proceedings prosecuting the murder were found guilty of hiding the murder victim's body.  One of the peculiarities of Brazilian procedural law is that concealment of the corpus delicti is a crime in regular criminal law (but not in military criminal law).  The petitioner added that July 18 and August 8 were the dates set for the trial, which, at the defense's request, had not yet been held. The petitioner also informed that no lawsuit seeking indemnization had begun.  The case had prescribed and the military police officers had to be convicted in the criminal trial for a damages suit to prosper.

          150.    On September 19, 1995, the Commission forwarded the petitioner's observations to the Government.  In September, the Commission received additional information from the Government to the effect that the trial had been rescheduled to September 12, 1995.

          151.    In October 1995, the Commission received information from the second petitioner to the effect that the first petitioner had dropped out of the case; the second petitioner would continue it.

          152.    In October, the Commission received more information from the petitioner arguing that the information presented by the Government was incomplete; while the latter had mentioned the two trial hearings that had been changed to pre-trial inquiries at the request of the victim's representative, the Government failed to mention the fact that another six trial dates had been postponed.

          153.    The petitioner alleged that as copies of the attached petitions would show, there were ample grounds for the requests mentioned by the Government to change two trial hearings to pre-trial inquiries; those requests concerned a matter that had a bearing on the outcome of the case, which was the possibility of entering into the record of the military criminal proceedings the finalized ruling of the regular court that had prosecuted and convicted the very same military police officers who were the defendants in the military court case and whom the regular court had convicted of concealing the victim's body.  Concealment of the body was only a crime under regular criminal law, which meant that the crime of homicide and the crime of concealment of the body were prosecuted in different jurisdictions.

          154.    The trial was held on September 12, where it was decided to nullify all the oral evidence produced in the trial and the defendants' interrogation, the reason being conflicting defense pleas.  This would further delay the punishment of those responsible for the victim's murder, which had occurred more than eight years earlier.  Given the slow pace at which the wheels of military justice were moving, the fear of impunity was well founded.

          155.    The petitioner explained that concerning the indemnization of the victim's next-of-kin, the suit for indemnization that was being heard could not move forward.  The military police officers would have to be convicted in the military criminal proceedings so that the conviction might serve as the basis of a subsequent conviction in a civil action.

          156.    On November 17, 1995, the petitioner's observations were forwarded to the Government, which was asked to explain the legal grounds for the requested exception arguing failure to exhaust the remedies under domestic law, pursuant to Article 37 of the Commission's Regulations, and to address the merits of the case, i.e., whether the Government had violated the articles of the Convention that the petitioner alleged it violated.  On April 17, 1996, and again in September 1996, the Commission reiterated that request. No answer was forthcoming.

          XXVIII.            CONSIDERATIONS REGARDING ADMISSIBILITY

          157.    The facts recounted by the petitioner in the petition describe possible violations of human rights guaranteed by the American Convention on Human Rights, and will be examined in due course.  The Commission will now examine the formal requirements for a petition to be admitted.

          158.    Article 46 of the Convention, cited above, establishes the requirements for a petition to be admitted.  In the petition filed in September 1994, the petitioner reported that over seven years after the fact, the accused had still not been brought to trial.

          159.    In its reply of June 1995, the Government alleged that certain administrative punitive measures had already been taken and that a case had been instituted in the military courts to investigate and ascertain the identity of those responsible for Aluízio's murder and the attempted murder of Claudio.  The Government also alleged a failure to exhaust domestic remedies, on the grounds that "the additional stages of the proceedings required by law to convict and sentence those eventually found guilty had not been completed."  Later, the petitioner reported, and the Government confirmed, that the trial had still not been held, eight years after the crime was committed.

          160.    Article 46(2)(c)  of the Convention stipulates that the provisions of paragraphs (1)(a) (exhaustion of the remedies under domestic law) and (1)(b) (deadline for filing the petition) shall not apply when there has been an unwarranted delay in rending judgment under those remedies. The same is stated by Article 37(2)(c), of the Regulations of the Commission.^[12]  The Commission is persuaded that the defendants' trial is long overdue and grants the exception to the rule requiring exhaustion of internal remedies, pursuant to Article 46 (2) (c) of the Convention and 37(2)(c) of its Regulations.

          161.    The most recent communication from the petitioner, received in October 1995, reported that on September 12, a trial hearing was held where it was decided to nullify all the oral evidence produced during the trial and the interrogation of the accused because of conflicting defense pleas.  This would further delay punishment of those responsible for the victim's murder eight years earlier.  The Government did not respond to this allegation by the petitioner or the Commission's requests sent in November 1995 and April and September 1996. The Commission considers that the exception provided for in Article 46(2)(c) of the Convention applies and therefore considers that the petition was filed within a reasonable time period, as stipulated in Article 38(2) of its  Regulations.^[13]

          162.    The Commission knows of no other similar body that is presently examining this case nor does the Government claim such knowledge. The petitioner has also complied with the formal requirements of Article 44 of the Convention.

          XXIX.   CONSIDERATIONS REGARDING THE NINE CASES

          A.         CONSIDERATIONS REGARDING THE COMPETENCE OF THE COMMISSION

          163.    The various petitioners have alleged violations of rights guaranteed in Article I (right to life, liberty and personal security), XVIII (right to a fair trial) and XXIV (right of petition),  of the American Declaration of the Rights and Duties of Man, and in articles 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention on Human Rights. The Commission is competent to analyze possible violations to human rights which are protected by the Declaration and by the Convention, in accordance to articles 1.2b and 20, of its statute.  The fact that Brazil has ratified the Convention on September 25, 1992, does not exempt its responsibility for violations of human rights occurred prior to that ratification, rights guaranteed in the Declaration, which has a binding character.

          164.    The Inter-American Court of Human Rights explicitly recognized the binding force of the Declaration stating that “Articles 1(2)(b) and 20 of the Commission´s Statute define...the competence of that body with respect to the human rights enunciated in the Declaration, with the result that to this extent both the American Declaration and the Convention are, for those States which ratified the Protocol of Buenos Aires, in pertinent matters and in relation to the Charter of the Organization”^[14], a source of international obligations.

          B.         CONSIDERATIONS REGARDING ACCUMULATION OF CASES FOR THE PURPOSE OF DECIDING ON THEIR ADMISSIBILITY

          165.    Article 40 of the Regulations of the Commission establishes criteria for separation and combination of cases:

          1.       Any petition that states different facts that concern more than one person, and that could constitute various violations that are unrelated in time and place shall be separated and processed as separate cases, provided the requirements set forth in Article 32 are met.

          2.       When two petitions deal with the same facts and persons, they shall be combined and processed in a single file.

          166.    Nevertheless, the Commission has interpreted Article 40 in a broad sense, as its practice shows. Regarding Article 40(1) of its Regulation:

          The Commission has not interpreted this provision to require that the facts, victims and violations set forth in a petition strictly coincide in time and place in order to allow processing as a single case.

          Rather, the Commission has processed individual cases dealing with numerous victims who have alleged violations of their human rights occurring at different moments and in different locations so long as all of the victims allege violations arising out of the same treatment. Thus, the Commission may process as a single case the claims of various victims alleging violations arising out of the application of legislation or a pattern or practice to each of the victims that received this similar treatment. The Commission not only has refused to separate such cases for processing but has also accumulated separate cases with such characteristics into single cases for processing.^[15]

          167.    All  the present cases had separate proceedings but the Commission acknowledges the similarities of the petitions and the fact that the alleged violations occurred within the same context.  The alleged crimes were committed by military police of the same State, São Paulo, allegedly acting illegally against defenseless and (except in one case) unarmed) victims; and the authors of the alleged violations have gone unpunished because the military courts have been slow and biased in prosecuting and deciding their cases. Therefore, the Commission decided for the sake of procedural economy to join the cases with a view to preparing a single report.^[16]

CONCLUSIONS

          168.    The Commission considers that it is competent to hear these cases; and that they are admissible according to the requirements established in Articles 46 and 47 of the American Convention.

On the basis of the foregoing factual and legal grounds,

            THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

          169.    To declare the present cases admissible.

          170.    To send this report on admissibility to the Government of the Federative Republic of Brazil and to the petitioners.

          171.    To place itself at the disposal of the parties with a view to reaching an agreement based on respect for the rights protected under the American Convention; and to invite the parties to express their opinion within 30 days regarding the possibility of a friendly settlement.

          172.    To continue to examine the substantial issues.

          173.    To publish this report and include it in the Annual Report to the OAS General Assembly.