Report No. 59 (2007) IACHR. Petition No. 12.293 (Brasil)

• Report Number: 59
• Petition Number: 12.293
• Year: 2007
• Court: Inter-American Comission of Human Rights
• Case Type: Inadmissibility
• Respondent State: Brasil
• Alleged Victim: Carlos Roberto Moreira

REPORT Nº 59/07 CASE 12.293 INADMISSIBILITY CARLOS ROBERTO MOREIRA BRAZIL July 25, 2007 I. SUMMARY 1. On J. 16, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “IACHR”) received a petition submitted by the Human Rights Task Force of the O. of the General Prosecutor of Sao Paulo S. and the Center for Justice and International Law (CEJIL) (hereinafter “the petitioners”) alleging violation by the Federative Republic of Brazil (hereinafter “Brazil” or "the S.") of Article 8.2.h of the American Convention on Human Rights (hereinafter “the American Convention"), to the detriment of C.R.M. (hereinafter “the alleged victim”). 2. According to the petitioners, the alleged victim was given a two-year prison sentence on September 8, 1998, on the charge of carrying a firearm without the corresponding authorization. After the decision was handed down, the accused was arrested and filed an appeal. H., the subject escaped from jail. B. on this and pursuant to the provisions of Articles 594 and 595 of the B. Code of Criminal Procedure, the appeal was vacated. This action leads the petitioners to believe that the alleged victim was deprived of access to a review of his conviction, thereby violating the right guaranteed under Articles 8.2.h and 1.1 of the American Convention. 3. The S. claims that it will not express on opinion on the facts involved in the criminal action affecting the alleged victim, but the petition must be declared inadmissible because the provisions of Articles 594 and 595 of the Code of Criminal Procedure are not uniformly applied by local jurisprudence. H., aware of the conflict between these rules and the Federal Constitution that took effect in 1988, Draft Law No. 4.206/2001 has been proposed to facilitate the revocation of these rules; this will make domestic criminal procedures law consistent with the guidelines of the Convention. 4. In this report, the Commission analyzes the information submitted in the light of the American Convention and concludes that the petition does not reveal obvious violations of the rights enshrined in Articles 8.2.h and 1.1 of the American Convention invoked by the petitioners, and thus decides that this case is inadmissible under Article 47.b of the Convention. The Commission also decides to notify the parties of this decision, publish the decision and include it in its Annual Report to the OAS General Assembly. II. PROCESSING BY THE COMMISSION 5. On J. 22, 2000, the Commission proceeded to process the petition under No. 12.293. The petitioners were so informed and the relevant sections were forwarded to the S., allowing a period of ninety days for the S. to submit information relating to the case. 6. On A. 17, 2001, the Commission repeated its request to the S. to submit information on the facts in the complaint. 7. On December 18, 2002, not having received a response from the S., the Commission ordered the case opened and deferred study as to its admissibility to when it expressed an opinion regarding the merits of the case. The Commission informed both parties on the same date and allowed them a period of two months to submit information on the merits of the case. 8. On February 19, 2003, the petitioners submitted information on the merits of the case, receipt of which was acknowledged on M. 17, 2003. This information was also forwarded to the S. so that it could submit observations within a period of sixty days. 9. On J. 19, 2003, the S. submitted information on the merits of the case, receipt of which was acknowledged on July 7, 2003. On the same date, the petitioners were sent the S.’s information so that they could submit observations. III. POSITIONS OF THE PARTIES A. Petitioners 10. The petitioners claim that the alleged victim was arrested on A. 11, 1998, having been caught by the police at 8:50 p.m. on that day bearing a permitted use firearm without the proper legal authorization. This took place on Oratorio Street in the Moóca neighborhood of the city of Sao Paulo, Sao Paulo S.. 11. The petitioners state that because the weapon the alleged victim was carrying had the series number scratched out, the charge against the accused was based on the punishable action defined in Article 10.3 of Law 9.437/97, thus initiating process No. 227/98 before the Eighth Criminal Court of the Central District of the Sao Paulo Division, Sao Paulo S.. 12. According to the petitioners, after the prisoner was questioned on May 26, 1998, it was determined that the Judicial Assistance Prosecutor’s O., a division of the O. of the General Prosecutor of the Sao Paulo S., which operates in defense of those without funds, would thereafter handle the defense for the accused. The petitioners indicate that the only hearing for testimony regarding the indictment occurred on J. 22, 1998, on which date the preliminary criminal proceeding was concluded. 13. The petitioners maintain that on July 6, 1998, in view of a previous conviction of the alleged victim for robbery and drug trafficking, the O. of the Attorney General of Sao Paulo filed an indictment based on the punishable action defined in Article 10.3, paragraph IV of Law 9.437/97. 14. The petitioners indicate that after the parties submitted allegations in the criminal proceeding, the conviction was handed down on September 8, 1998, imposing on the alleged victim a two-year prison sentence to be served in the penitentiary system as well as a penalty of ten fine-days. 15. The petitioners state that since the alleged victim was a repeat offender, he was not allowed to remain free while awaiting review of the appeal filed against the prison sentence. 16. According to the petitioners, they were informed in the criminal process that on September 22, 1988 the alleged victim escaped from the police division where he was being detained. 17. The petitioners indicate that after the alleged victim was notified of his conviction by the court, his public defender filed an appeal on M. 9, 1999, seeking to have the conviction overturned by the higher court, which would ensure the principle of the right to appeal to a higher court. H., the petitioners indicate that since the accused was not recaptured, the appeal was vacated based on Article 595 of the Code of Criminal Procedure, which establishes that an appeal shall be vacated if a convicted person flees after having filed his appeal; thus, the merits of the case were not reviewed. 18. The petitioners state that given the dissent from the decision of the first instance court that ordered the appeal vacated, based on the provisions of Article 5, number LXVIII of the Federal Constitution, and Articles 647 and 667 of the Code of Criminal Procedure, a habeas corpus appeal was filed on May 10, 1999 seeking review of the conviction by the Superior Court. The constitutional appeal was rejected by the First Criminal Chamber of Justice of Sao Paulo on J. 14, 1999, based on the fact that the convicted individual did not have the right to remain free while awaiting the decision on the appeal challenging the conviction, without first submitting to imprisonment, in view of the provisions of Article 594 of the Code of Criminal Procedure. 19. According to the petitioners, when the decision indicated in the preceding paragraph became known, an ordinary appeal was filed before the Superior Court of Justice on August 10, 1999 and denied on November 18, 1999. 20. The petitioners conclude their presentation of the facts by asserting that the domestic remedies were exhausted with the publication of the decision of the Superior Court of Justice on December 17, 1999 in the O.G., and it is their view that everything related here amounts to a violation of Articles 8.2.h and 1.1 of the American Convention, in that the alleged victim was not guaranteed access to a higher body for review of the conviction depriving him of his freedom. They cite a series of findings issued by domestic courts that have repeatedly denied access to appeal based on Articles 594 and 595 of the Code of Criminal Procedure. 21. The petitioners indicate that the petition satisfies the admissibility requirements under Articles 44, 46, and 47 of the American Convention, as well as Articles 37, 38, and 39 of the IACHR Rules of Procedure. In addition, they maintain that since the issue here is a restriction on the alleged victim’s inherent right to appeal and resulting access to a higher court, as protected under Article 8.2.h of the American Convention, the admissibility requirement under Article 47.b of the Convention has been met. B. The S. 22. The S. maintains that the instant case involves legal provisions contained in Articles 594 and 595 of the B. Code of Criminal Procedure, establishing rules regarding the filing of appeals challenging convictions in the first instance court. 23. The S. indicates that it will not express an opinion regarding the facts relating to the criminal action in which C.R.M. was convicted of carrying a weapon illegally, in that the conviction itself has not been disputed by the petitioners in the context of the petition submitted to the IACHR. 24. The S. indicates that the application of the rules contained in Articles 594 and 595 of the Code of Criminal Procedure has been uneven in the domestic courts and has varied according to the understanding of the individual judge. D. interpretations can be seen in the decisions issued by the Courts of Justice within the individual S. or even the decisions of the Federal Supreme Court. 25. The S. indicates that, aware of the inconsistency between the legal articles cited and the principles of the Federal Constitution of 1988, the Federal Executive Branch submitted Draft Law No. 4.206 in 2001, expressly revoking Articles...