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OEA/Ser.L/V/II.98
doc. 6 rev.
13 April 1998
Original: Spanish
REPORT Nº 19/98
CASE 11.516 (OVELÁRIO TAMES)
BRAZIL
February 21, 1998
1. In
June 1995, the Inter-American Commission on Human Rights, the “Commission”,
received a petition against the Federal Republic of Brazil, “Brazil” or
“the State of Brazil” according to which, Ovelário Tames, a Macuxi Indian,
was beaten to death by civil police officers inside the Normandia Police Station
in the state of Roraima. The
petition also stated that the murder and the absence of justice in relation to
it were violations of rights guaranteed in Article I (right to life, liberty and
personal security) of the American Declaration of the Rights and Duties of Man,
the “Declaration”, and in articles 8 (right to a fair trial) and 25 (right
to judicial protection) of the American Convention on Human Rights, the
“Convention”, and of Article 1(1) thereof (obligation to respect and ensure
the rights recognized in the Convention). The
Commission analyzed the case and decided to declare it admissible.
I.
BACKGROUND
2. The
petition alleged that Ovelário Tames was arrested by state civil police
officers in the early hours of October 23, 1988, and then found dead in a cell
in Normandia, in the state of Roraima, the following morning.
It stated that Civil Inquiry No. 16/88 was instituted on October 25, in
the very same police station where Ovelário died.
The Civil Police Inquest ended up indicting only one of the two [CHECK
SPANISH] police officers.
3. The
petition further reported that, concomitantly, Inquiry No.79/88 was conducted by
the Federal Police to which the conclusion of the civil inquiry was annexed. The Civil Police Inquest concluded on May 24, 1989 with
indictment of all six police officers on charges of aggravated homicide, the
aggravating circumstances being willful negligence and conspiracy (Article 121
and Articles 13 and 29 of the Brazilian Penal Code). However, the public prosecutor's office charged them only
with the crime of grievous bodily harm leading to death [CHECK], which carries a
lesser sentence than aggravated homicide. Case
No. 9,684/88 was instituted upon the indictment.
4. On
September 21, 1989, all six police officers were summoned to be questioned under
oath. Police officer Roger Afonso
de Souza Cruz did not appear. On
October 16, the judge ordered that he be summoned again.
Roger Afonso, who at the time was working in the prison system, did not
appear for questioning, nor did he explain his absence.
On November 9, 1990, the judge ordered that Afonso's summons be posted
publicly. However, the summons was not posted until February 13, 1995,
more than four years after it was ordered and more than six years after the
crime. The defendant has still not
appeared and was declared in contempt of court in April, 1995.
At the time the petition was lodged, the proceedings were still moving
slowly.
5. The
petitioners argued that the mere fact that the proceedings were still in the
preliminary phase -the phase when the judge, upon receiving the complaint, sets
the date and time for the questioning and orders the defendant summoned-
constituted the "unwarranted delay" referred to in Article 46(2)(c) of
the Convention, thus providing grounds for an exception to the rule requiring
exhaustion of the remedies under domestic law.
Finally, they asked that the Commission condemn the State of Brazil for
violation of Article I of the American Declaration, and Articles 8 and 25 of the
American Convention on Human Rights, as well as Article 1.1 thereof.
They also petitioned the Commission to order that the State make
effective arrangements to conclude the judicial proceedings to convict those
responsible for the crime committed.
II.
PROCEEDINGS BEFORE THE COMMISSION
6. The
Commission received the petition in June 1995 after various extensions and
requests. In June 1996, the Government replied that according to the
Council for the Protection of Human Rights (CDDPH) of the Ministry of Justice,
the police inquiry to investigate the circumstances of the death of Ovelário
Tames ended with the indictment of six persons, on charges of grievous bodily
harm followed by death.
7. The
Government said that criminal proceedings had been instituted in the 38th
Criminal Court of Boa Vista, Rondônia, in Case No. 9,684/88 against José
Felipe da Silva Neto, Jairo Pinto de Souza, Agnaldo da Silva Vieira, Nazareno
Oliveira de Lima, Leônidas Nestor Pacheco and Roger Afonso de Souza Cruz Filho.
Except for De Souza Cruz Filho, who was declared in contempt of court,
all the defendants were questioned. The
Government added that criminal proceedings were in the investigation phase.
Deposition of the prosecution's witnesses was scheduled for September 2,
1996. Because the proceedings
appeared to be moving slowly, the Council for the Protection of Human Rights (CDDPH)
would have to urge the Roraima courts to act more quickly.
8. The
Government also said that given the lack of any information concerning civil
damages, the CDDPH would have to arrange to have a suit filed and, to that end,
establish contact with the victim's next-of-kin.
For all these reasons, the Government argued that the remedies under
domestic law had not been exhausted; the additional phases of the proceedings
required by law to judge and sentence those eventually found guilty, had not
been completed.
9. In
August the petitioners sent their observations stating that in its reply the
Government of Brazil confirmed that the criminal proceedings were still in the
investigation phase and that deposition of the prosecution's witnesses was set
for September 2, 1996. Eight years
after the fact, the Judge of the third Criminal Court of Roraima (and not the
38th Court of Rondônia, as the Government erroneously states) issued a
directive that postponed the hearings that were slated to begin on July 8, 1996,
until October 8, 1996, in view of the backlog of court business.
10. The
petitioners said that while the Government claimed that the Council for the
Protection of Human Rights would have to urge the courts to speed up the
proceedings, nothing of that nature had been done.
Nor have the victim's next-of-kin been contacted with a proposal for
civil damages, as the Government reported.
11. According
to petitioners, the Government in its reply admitted that the legal proceedings
were moving slowly. Based on all
this and the fact that eight years after the crime the investigative phase of
the proceedings had still not concluded, the petitioners asked that the petition
be admitted based on application of Article 46(2)(c) of the Convention, which
refers to an "unwarranted delay" in rendering a final judgment under
the remedies of domestic law.
12. The
petitioners argued that the delay in the legal proceedings was more than
sufficient grounds for the exception to the rule requiring exhaustion of
domestic remedies; it was also a violation of the rights to access to the
courts, guaranteed in both the Declaration and the American Convention.
Far from denying the delay, the Government acknowledged it, which made
these flagrant violations for which it must be condemned.
13. On
October 29, 1996, the Commission forwarded the petitioners' observations to the
Government and gave it 30 days in which to make its final observations.
III.
FRIENDLY SETTLEMENT
14. On
November 19, 1996, the Commission placed itself at the disposal of the parties
with a view to reaching a friendly settlement of the matter.
However, no reply was forthcoming.
IV. CONSIDERATIONS
REGARDING ADMISSIBILITY
15. The
petitioners alleged violations of rights guaranteed in Article I (right to life,
liberty and personal security) 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.
16. The
Inter-American Court of Human Rights 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. To
this extent both the American Declaration and the Convention constitute, for the
States which have ratified the Protocol of Buenos Aires, in pertinent matters
and in relation to the Charter of the Organization”, a source of international obligations.
17. The
facts recounted by the petitioner describe possible violations of human rights,
which will be examined when the merits of the case are analyzed at the
appropriate point of the proceedings. The
Commission will now examine the formal requirements for the petition to be
admitted.
18. Article
46 of the Convention establishes the requirements that must be met for a
petition to be admitted:
a. that,
the remedies under domestic law have been pursued and exhausted;
b. that,
the petition or communication is lodged within a period of six months from the
date on which the party alleging violation of his rights was notified of the
final judgment;
c. that,
the subject of the petition or communication is not pending in another
international proceeding for settlement; and,
d. that,
in the case of Article 44, the petition contains the name, nationality,
profession, domicile, and signature of the person, or persons, or legal
representative, of the entity lodging the petition.
19. In the
petition filed in June 1995, the petitioners reported that six years after the
crime, and despite the fact that individuals had been indicted, the proceedings
were still in the initial investigation phase.
For its part, in its reply of June 1996, the Government admitted that the
judicial proceedings were moving slowly; for that reason, the Government,
through the CDDPH, was going to urge the courts to move more swiftly with the
proceedings. However, in August
1996 the petitioners reported that nothing of the kind had been done. The Government did not deny this; instead, it refrained from
replying to the requests made by the Commission in October and November 1996.
20. In its
reply, 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 sentence those eventually found guilty had not yet concluded.
In August 1996, the petitioner reported that the proceedings were still
in the investigation phase, eight years after the crime being prosecuted was
committed. The petitioner requested
the exception to the rule requiring exhaustion of domestic remedies before a
petition could be admitted, as stipulated in Article 46(2)(c) of the Convention.
21. Article
46(2)(c) states that the provisions of paragraphs (1)(a) (exhaustion of domestic
remedies) and (1)(b) (deadline for submitting 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.
22. The
petitioners alleged that the preliminary phase of the proceedings to summon the
defendants, took seven years to complete, with the last defendant summoned by a
posted warrant in April 1995, all of which constituted a delay in rendering
judgment. The latest information
reported by the petitioners concerning the judicial proceedings was that the
hearing set for September 2, 1996, to hear the prosecution's witnesses, had been
postponed because the judge had too much on his hands.
The Government did not deny this assertion and did not reply to the
Commission's requests, sent in October and November 1996.
The Commission considers that the investigation phase should have long
been completed. Since an
explanation of the facts and judgment of those eventually found guilty are
nowhere in sight, it grants the exception to the rule requiring exhaustion of
the remedies under domestic law, according to Articles 46(2)(c) of the
Convention and 37(2)(c) of its Regulations.
23. The
Commission considers that the exception envisaged in Articles 46(2)(c) of the
Convention and 37 (2)(c) of the Regulations applies
and that the petition was lodged within a period of six months from the
date on which the party alleging violation of his rights was notified of the
final judgment. The information
received from the petitioner, dated August 1996, alleged that the hearing to
take testimony from the prosecution's witnesses had been postponed.
Eight years after the crime was committed, the investigation phase had
not yet been completed. The delay
in rendering a final judgment was patently obvious. The Commission considers that the exception provided for in
Article 46(2)(c) of the Convention therefore applies and that the petition was presented within the reasonable
time period stipulated in Article 38(2) of the Commission's Regulations, which
says:
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.
24. The
Commission has no knowledge that this case is pending an international
settlement, nor did the Government make such a claim.
The petitioner observed the formal requirements of Article 44 (2).
CONCLUSIONS
25. The
Commission considers that it is competent to hear this case and that it is
admissible pursuant to the requirements established in Articles 46 and 47 of the
American Convention.
On the basis of the factual and legal
grounds set forth above,
THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS
DECIDES:
26. To
declare the present case admissible.
27. To send
this report on admissibility to the Government of the Federal Republic of Brazil
and the petitioners.
28. To
continue to examine the pertinent issues in order to decide the merits of the
case.
29. To
publish this report in its Annual Report to the OAS General Assembly.
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