Report No. 62 (2009) IACHR. Petition No. 1173-05 (Brasil)

• Court: Inter-American Comission of Human Rights
• Report Number: 62
• Year: 2009
• Petition Number: 1173-05
• Respondent State: Brasil
• Case Type: Admissibility
• Alleged Victim: Silas Abel Da Conceição y Augusta Tomázia Inácia

REPORT No. 62/09 PETITION 1173-05 ADMISSIBILITY SILAS ABEL DA CONCEIÇÃO AND AUGUSTA TOMÁZIA INÁCIA BRAZIL August 4, 2009 I. SUMMARY 1. On October 19, 2005, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the IACHR”) received a petition lodged by Augusta Tomázia Inácia, Elcio Pacheco and Dionara Amparo dos Anjos (“the petitioners”) against the Federal Republic of B. (“the S.” or “B.”). The petition alleged violations of Articles I (right to life, liberty and personal security), II (right to equality before the law) and XVIII (right to a fair trial) of the American D. of the Rights and Duties of Man (“the American D.”), as well as violations of Articles 1.1 (obligation to respect rights) and 25 (right to judicial protection) of the American Convention on Human Rights (“the American Convention”), to the detriment of S.A. da C. and his mother, Augusta Tomázia Inácia (“the alleged victims”). 2. The petition denounces the torture and subsequent summary execution of the alleged victim, then 18 years old, by three members of the Civil Police of Minas Gerais, starting from his arrest in mid-September of 1988 when he was allegedly arbitrarily detained and tortured along with P. de A., then 20 years old. The latter was supposedly killed under torture at the Police Station of Cachoeirinha, in B.H., capital city of the state of Minas Gerais, on September 22, 1988. Following that, police officers O.M.V., F.C. de Souza and Á.J.V. allegedly put P. de A.’s body in a bag, and took the alleged victim to an unknown place in the woods where they supposedly forced him to bury the body. According to the petitioners, the alleged victim was the sole eye witness to this crime. They further alleged that on October 7, 1988 police officers O.M. de V. and F.C. de Souza abducted the alleged victim and executed him with a shot in the back of his head. The petitioners point out that there has been no final judgment regarding this crime more than 20 years after the alleged victim’s execution. 3. The S. argues that the petition is inadmissible due to the lack of exhaustion of domestic remedies. In this regard, the S. stresses that, in conformity with Article 46.1.a of the American Convention, the nature of the petition mechanism before the inter-American system is subsidiary; therefore, S.s must be previously accorded the opportunity to resolve matters through their own domestic courts. According to B., the domestic authorities have effectively pursued justice and reparation with regard to the death of the alleged victim by means of the corresponding criminal action and, accordingly, on September 12, 2007 defendant O.M. V. was convicted by a jury to twelve years in prison for that crime. In the communication of April 2008, the S. alleged that this defendant presented an appeal which was pending a decision before the 2nd instance tribunal. As regards the other defendant, F.C. de Souza, the S. alleged that his jury trial was supposed to take place in the second semester of 2006. 4. After examining the positions of the parties with respect to the requirements set forth in Articles 46 and 47 of the American Convention, the Commission decides to declare this petition admissible regarding Articles I and XVIII of the American D., as well as Article 25.1 of the American Convention, in relation to Article 1.1 thereof. By virtue of the principle of iura novit curia, it also declares the present petition admissible with respect to a possible violation of Articles XXV and XXVI of the American D. and Articles 5.1 and 8.1 of the American Convention. The IACHR declares this petition inadmissible with regard to the alleged violation of Article II of the American D., in conformity with Article 47.b of the American Convention. Therefore, the Inter-American Commission decides to notify the parties of this decision, and to publish and include this report in its Annual Report to the General Assembly of the OAS. II. PROCEEDINGS BEFORE THE COMMISSION 5. On October 19, 2005 the Commission received the complaint lodged by the petitioners. On M. 16, 2006 the IACHR submitted the relevant parts of the petition to the S., with a request that it provide its observations within two months. By note received on J. 25, 2006, the S. submitted its observations on this petition. 6. The petitioners presented additional information on August 28, 2006; M.3., 2007; October 18, 2007; February 20, 2008; and M. 15, 2008. The communications dealing with additional information or arguments were duly transmitted to the S.. 7. L., the S. presented additional information on November 17, 2006; J. 23, 2007; January 3, 2008; and April 9, 2008. These were duly transmitted to the petitioners. III. POSITIONS OF THE PARTIES A. Position of the petitioners 8. The petitioners allege that on September 22, 1988, police officers Onofre Maurício V., F.C. de Souza and Á.J.V. arrested the alleged victim, then 18 years of age, and P. de A., then 20 years of age, in B.H., capital city of Minas Gerais state. They argue that both individuals were then submitted to torture sessions using the technique commonly known in B. as pau-de-arara (“parrot’s perch”). According to the petitioners, the police officers also violently beat P. de A., who bled through his mouth, nose and ears. The alleged victim supposedly witnessed everything while being subjected to similar torture and beatings. 9. The petitioners state that the alleged victim survived the torture and beatings, but P. de A.’s lifeless body was placed in a black plastic bag. The police officers then supposedly took P. de A.’s body and the alleged victim to an unknown location in the woods, where they forced the alleged victim to dig a hole to bury P. de A.’s body. According to the petitioners, while burying the body, the alleged victim realized that P. de A. was still alive, moving and breathing; nevertheless, his body was thrown inside the grave and buried. 10. The petitioners assert that the alleged victim was the sole eye witness to P. de A.’s torture, killing and the hiding of his corpse, and that the former was threatened to remain silent about such facts. According to the petitioners, a few days later the alleged victim was released from prison by means of a writ of habeas corpus. P. de A.’s mother, the alleged victim’s neighbor, insistently asked him about the fate of her son, but the alleged victim kept silent at first, due to fear of reprisals. Nevertheless, later on the alleged victim ended up telling his own mother, Augusta Tomázia Inácia, everything that was described supra. 11. The petitioners allege that on October 7, 1988, police officers Onofre Maurício V. and F.C. de Souza abducted the alleged victim and took him to the beltway of road BR-262, where one of the police officers executed him with a shot in the back of his head. 12. The petitioners observe that on April 3, 1989 the Public Prosecutor’s Office (Ministério Público) charged police officers O.M.V. and F.C. de Souza with the arbitrary arrest, torture and homicide of the alleged victim. Nevertheless, more than twenty years after the crime occurred in 1988, there has been no final judgment, which in their opinion demonstrates that there has been unwarranted delay in rendering a final judgment under domestic remedies. According to the petitioners, since her son’s death in 1988, Augusta Tomázia Inácia relentlessly claimed for justice until she died from cancer at the end of 2006, after suffering for eighteen years due to her son’s execution and the failure of the authorities to punish those responsible. B. Position of the S. 13. The S. argues that the petition is inadmissible due to the lack of exhaustion of domestic remedies. In this regard, the S. stresses that, in conformity with Article 46.1.a of the American Convention, the nature of the petition mechanism before the inter-American system is subsidiary; therefore, S.s must be previously accorded the opportunity to resolve matters through their own domestic courts. According to B., with regard to the death of the alleged victim, the domestic authorities have effectively pursued justice and reparation by means of the corresponding criminal action. 14. I., the S. stresses that, on November 25, 2005, defendant O.M. V. was convicted by a jury to fourteen years in prison for the death of the alleged victim. According to the S., the defendant appealed against this decision. In April 2008, the S. informed that on September 12, 2007 police officer O.M.V. was convicted by another jury trial to twelve years in prison for the death of the alleged victim. According to the S., this defendant presented an appeal which was pending a decision before the 2nd instance tribunal. 15. As regards the other defendant, F.C. de Souza, the S. alleged that his jury trial was supposed to take place on December 14, 2006. In its more recent communications, the S. makes no reference to the criminal procedure against the second defendant. 16. In light of the foregoing, the S. argues that the domestic remedies related to the alleged victim’s death have not been exhausted, and that the criminal action has followed its normal course with due respect to the right of defendants to appeal the judgment to a higher court, as recognized in Article 8.2.h of the American Convention. Therefore, the S. requests that the Inter-American Commission declare this petition inadmissible, in conformity with Articles 46.1.a and 47.a of the American Convention. IV. ANALYSIS OF ADMISSIBILITY A. Jurisdiction ratione personae, ratione materiae, ratione temporis and ratione loci 17. Under Article 44 of the American Convention and Article 23 of the Inter-American Commission’s Rules of Procedure, the petitioners have locus standi to file petitions with the IACHR....