Report No. 26 (2009) IACHR. Petition No. 12.440 (Brasil)

• Court: Inter-American Comission of Human Rights
• Petition Number: 12.440
• Report Number: 26
• Year: 2009
• Case Number: 12.440
• Respondent State: Brasil
• Case Type: Merits
• Alleged Victim: Wallace De Almeida

REPORT Nº 26/09 CASE 12.440 ADMISSIBILITY AND MERITS (PUBLICATION) WALLACE DE ALMEIDA BRAZIL March 20, 2009 I. SUMMARY 1. On December 26, 2001, the Inter-American Commission on Human Rights (hereinafter the “Commission” or “IACHR”) received a petition filed by I.T.d.S., Rafaela Telacio dos Santos, R.T.J., F.G.d.S., the Center for Black Studies (Núcleo de Estudios Negros--NEN), and the Center for Global Justice (CJG), (hereinafter “the petitioners”), alleging violation by the Federative Republic of Brazil (hereinafter “Brazil” or “the State”) of Articles 4, 5, 8, 25 and 1(1) of the American Convention on Human Rights (hereinafter the “American Convention”) to the detriment of Wallace de Almeida (hereinafter the “alleged victim”). 2. B. on the information, the victim is alleged to have been murdered by members of the military police. He was a young 18-year-old black man serving as a professional soldier in the A. and was murdered on September 13, 1998. The petitioners assert that the police investigation has not yet been concluded and the Public Prosecutor’s Office has not even filed a complaint regarding the incident with the courts. The events in question reportedly took place in the context of an escalation in police/military violence, resulting from the policy that the state of Rio de Janeiro has been using in this area since late 1994. T. also allege that the case involves racial and social factors, in that they report that the victims of this kind of alleged extrajudicial execution are black and poor. F., they ask that a recommendation be given to the Government of Brazil to investigate, prosecute and punish those responsible for the crime, that the victims be compensated, and that measures be taken to prevent violent police actions like those reported here. 3. The State did not respond to the complaint despite having been notified in due legal form. H., its representatives did appear at the hearing held during the 121st period of sessions of the Commission on October 21, 2004, at which time it was stated that the police investigation into the case is effectively stalled and there is nothing new to report on the case. 4. In this report the Commission analyzes admissibility requirements and considers the petition admissible in accordance with Articles 46(2)(c) and 47 of the American Convention. As for the merits of the matter in dispute, which are also examined herein according to Article 37(3) of the IACHR’s Rules of Procedure, the Commission concludes in this report, drawn up in accordance with Article 51 of the Convention, that the State violated Mr. Wallace de Almeida’s right to life, integrity, a fair trial and judicial protection, which are guaranteed by Articles 4, 5, 8, 24 and 25 of the American Convention, in relation to the general obligation to respect and guarantee rights and the duty to give domestic legal effects as provided in Articles 1(1) and 2, as well as the obligation of the Brazilian State and of the state of Rio de Janeiro to implement all the provisions of the Convention under Article 28, all of that instrument. F., the IACHR makes relevant recommendations to the Brazilian State. II PROCESSING BY THE COMMISSION 5. The original petition was received by the Commission on December 26, 2001, filed as Petition Nº 872/2001 and subsequently designated case No. 12.440. On January 4, 2002, the Commission sent the petitioners acknowledgement of receipt of their petition. On January 24, 2002, the Commission, pursuant to Article 30 of its Rules of Procedure, sent the State the pertinent sections of the complaint, asking that it respond to the petition and granting a period of two months for that purpose. This was communicated to the petitioners on the same date. 6. In a note received on August 9, 2002 and dated A. 7 of the same year, the State requested that the Commission grant it an extension to answer the petition filed against it. 7. In a note received on January 16, 2004 and dated J. 15 of the same year, the petitioners asked that a hearing be scheduled before the Commission to address legal issues relating to the case. 8. The Commission, in a note dated J. 24, 2003, informed the State that its request for an extension was rejected based on the provisions of Article 30(3) of the Rules of Procedure, in that no basis had been found to support the request. As of the date this report was drawn up, the State had not responded to the petition. 9. The Commission, in a note dated January 22, 2004, advised the State pursuant to Article 37(3) of the Rules of Procedure, that it decided to give the case the number 12.440, and to proceed with considerations regarding the admissibility of the petition, up to the discussion on the merits. In the same note, it advised that in accordance with the provisions of Article 38(1) of the Rules of Procedure, the petitioners were requested to submit additional information on the merits of the petition within a period of two months. 10. On March 23, 2004, the additional information the petitioners sent on the merits of the case was received by fax, and the same information was received through regular mail on April 5 of that year. Acknowledgement of the receipt of that information was sent to the petitioners on J. 1, 2004. 11. In a note dated J.1., 2004, the State was sent relevant sections of the additional information submitted by the petitioners on the merits of the case, and the State was granted a period of two (2) months to submit comments on that information. 12. On August 30, 2004, the petitioners asked the Commission for information on the case. 13. On October 21, 2004, a hearing was held on the case during the 121st period of sessions of the Commission. It was attended by representatives of the petitioners and the State. At that time, the Chairman suggested that the parties might seek a friendly settlement of the matter. III. POSITIONS OF THE PARTIES A Petitioners 14. The petitioners maintain that the complaint is based on the murder of the alleged victim by agents of the 19th Military Police Battalion of Rio de Janeiro. The victim was a young 18-year-old black soldier serving in the A.. The incident took place on September 13, 1998 in the “Morro de Babilonia,” a favela located in the southern part of the referenced State. The petitioners maintain that the incident took place during a police operation carried out in an arbitrary manner at the referenced location, during which police agents used excessive violence against the inhabitants of the area. They assert that the police investigation has not been concluded to date and the Public Prosecutor’s Office has not even filed a complaint with the court. They believe that this situation constitutes a violation of Articles 4, 5, 8, 24, 25 and 1(1) of the Convention and that, given the competent authorities failure to act to resolve the situation, a case must be filed against the State so that justice will be served and the alleged affected parties compensated. 15. As context for the situation, the petitioners denounce the use of excessive force by the police force of the State, specifically in the state of Rio de Janeiro, citing as evidence reports that this Commission and “Human Rights Watch” issued on the subject in 1997. Specifically, they maintain that in late 1994 the government of the state of Rio de Janeiro reached an agreement with the federal government that the Armed Forces would operate jointly with the Military Police to combat drug trafficking, under the name of “Operation Rio.” The operation was marked by torture, arbitrary arrest, unauthorized searches and unnecessary use of violence by the police, which the petitioners maintain is demonstrated in reports similar to those referred to above. In May 1995, the petitioners assert that after General N.C. was appointed Secretary of Public Security of the state of Rio de Janeiro, under G.M.A., new provisions were adopted in the Police Regulations. These included: 1) bonuses and promotions for bravery; 2) authorization for active police officers to use a second weapon; and 3) summary investigation rather than the full complete investigation, in order to accelerate murder cases involving police/military officers. The petitioners maintain that this situation degenerated into numerous abuses, such as planting evidence in cases in which agents brought down an alleged criminal (e.g., planting a weapon supposedly belonging to the subject). They maintain that these practices led to increased police violence in the state of Rio de Janeiro, as depicted in the work of P.I.C., which is attached to the petition as documentary evidence. 16. The petitioners also maintain that the issue of race is one of the preponderant factors relating to police violence. They maintain that the studies done by the aforementioned professor is able to categorically demonstrate this fact. This leads them to conclude that police violence is discriminatory in that it affects blacks in greater numbers and with greater intensity. They also allege that socio-economic factors are involved, since in the large majority of cases the alleged victims are poor and live in favelas and marginal areas, all of which they maintain can be found in the statistical data issued by the “Research Group on Discrimination.” 17. Regarding the murder of the alleged victim, they maintain that he was a young 18-year-old black man serving in the Brazilian Army as a recruit at the War Arsenal Garrison of Rio de Janeiro, a calm and disciplined individual who had not received any reprimands at all during the four (4) months he served in the Army, as shown in the statements in Annex III. On September 13, 1998, he was reportedly climbing theMorro de Babilonia where he lived when he met a cousin at a bar. W. he was stopping to greet her,...