Report No. 66 (2006) IACHR. Case No. 12.001 (Brasil)

• Year: 2006
• Case Number: 12.001
• Report Number: 66
• Respondent State: Brasil
• Court: Inter-American Comission of Human Rights
• Case Type: Merits
• Alleged Victim: Simone André Diniz, Brasil

REPORT N° 66/06 CASE 12.001 MERITS SIMONE ANDRÉ DINIZ BRAZIL October 21, 2006 I. SUMMARY 1. On October 7 and 10, 1997, the Center for Justice and International Law (CEJIL), the Subcommittee on Blacks of the Human Rights Committee of the Ordem dos Advogados do Brasil (OAB/SP: Brazilian bar association), and the Instituto do Negro Padre Batista submitted to the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) a petition against the Federative Republic of Brazil (hereinafter “Brazil,” “the State,” or “the Brazilian State”). The petition alleged a violation of Articles 1, 8, 24, and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), and, in light of Article 29 of that same instrument, Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “the Racism Convention”), to the detriment of Ms. Simone André Diniz. 2. The petitioners alleged that the State did not guarantee the full exercise of the right to justice and due process of law, failed to pursue domestic remedies to look into the racial discrimination suffered by Ms. Simone André Diniz, and therefore breached its obligation to ensure the exercise of the rights provided for in the American Convention. 3. The State provided information alleging that the Judiciary had already handed down a ruling on the subject matter of this complaint, and that, according to the government, the case did not make out any human rights violation. 4. The Commission concludes that the State is responsible for the violation of the rights to equality before the law and judicial protection, and the right to a fair trial, enshrined respectively at Articles 24, 25, and 8 of the American Convention. The Commission also decides that the State breached its obligation to adopt provisions of domestic law in the terms of Article 2 of the American Convention, and also violated the obligation imposed by Article 1(1) to respect and ensure the rights enshrined in the Convention. Finally, the IACHR makes the relevant recommendations to the Brazilian State. II. PROCESSING BEFORE THE COMMISSION AND FRIENDLY SETTLEMENT 5. On October 7 and 10, 1997, the IACHR received a complaint against the Brazilian State. On April 10, 1998, the IACHR notified the State and gave it 90 days to respond. On May 12, 1998, the State sent a note setting forth considerations on the case and undertaking to send pertinent information in due course. On October 2, 1998, the petitioners sent a fax requesting the inclusion of the Instituto do Negro Padre Batista as co-petitioner in the complaint. On November 3, 1998, the IACHR sent the Government a note in which it reiterated the request for information made April 10, 1998, and gave the State 30 days to answer. On December 9, 1998, the Brazilian Government submitted its observations on the complaint. 6. In 2002, the Commission published Admissibility Report No. 37/02, in which it determined that it was competent to analyze the merits issues. On December 20, 2002, the petitioners requested an extension of the period for sending observations on the merits of the case. On January 6, 2003, the Commission gave the petitioners an additional two months to submit observations. On February 20, 2003, the petitioners requested a one-month extension of the deadline for submitting their observations. 7. On February 26, 2003, the Commission gave the petitioners a one-month extension, and at the same time sent the petitioners copies of the Government’s responses of May 12 and December 8, 1998. On May 5, the Commission acknowledged receipt of the observations sent by the petitioners on the merits of the case, on March 5 and April 5, 2003. On May 8, 2003, through a communication sent to both parties, the Commission placed itself at their disposal to pursue a friendly settlement; it set a deadline of 30 days for initiating that process. On May 14, 2003, the Commission gave the Brazilian government 60 days to send in its observations on the petitioners’ communication. 8. On July 14, 2003, the Brazilian State sent its observations; at the same time, it expressed interest in pursuing a friendly settlement. On July 16, 2003, the Commission set a deadline of 15 days for the petitioners to submit their observations. On August 15, 2003, the Commission acknowledged receipt of the petitioners’ submission expressing their interest in pursuing a friendly settlement, as proposed by the Brazilian State. On September 8, 2003, the IACHR sent the Brazilian State a copy of the submission sent by the petitioners and gave it 30 days to express its views. 9. On December 12, 2003, the Commission acknowledged receipt of a communication sent by the petitioners on November 7, 2003, by which they expressed that they were no longer interested in pursuing a friendly settlement, given the absence of any proposal by the State; at the same time, they asked the IACHR to approve a report on the merits. On December 12, 2003, the Commission forwarded to the State the petitioners’ communication of November 7. The Brazilian government, in a note of January 15, 2004, requested a hearing for the 119th session of the IACHR. In a note of January 29, 2004, the State requested that the case be removed from the hearings schedule. In a note of February 11, 2004, it asked that it be postponed until the 120th session of the Commission.; III. THE PARTIES’ POSITIONS A. The petitioners’ position 10. The petitioners alleged in the first part that the Brazilian State violated the rights of Ms. Simone André Diniz provided for at Articles 1(1), 8, 24, and 25 of the American Convention, and, in light of Article 29 of that instrument, Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. In addition, the petitioners asked that Brazil be found responsible for violating the above-mentioned rights, and that the Commission recommend to the State that it proceed to investigate the facts, compensate the victim, and publicize the decision in the instant case so as to prevent future discrimination based on color or race. 11. According to the petitioners, on March 2, 1997, Ms. Aparecida Gisele Mota da Silva took out a classified ad in the newspaper A Folha de São Paulo, which enjoys wide circulation in the state of São Paulo, expressing her interest in hiring a domestic employee in which she indicated her preference for a white person. Once she saw the ad, student and domestic employee Simone André Diniz called the number indicated, introducing herself as a candidate for the job. When she spoke with Maria Tereza, the person assigned by Ms. Mota da Silva to handle phone calls from applicants, she was asked about the color of her skin. When she answered that she was black, she was informed that she did not meet the requirements for the job. 12. The petitioners adduced that Ms. Simone Diniz denounced the racial discrimination suffered and the racist ad to the Subcommittee on Blacks of the Ordem dos Advogados do Brasil, São Paulo Section, and, accompanied by her attorney, reported the crime to the then-Police Unit for Race Crimes. On March 5, 1977, police inquiry was opened as number 10,541/97-4 to look into the violation of Article 20 of Law 7716/89, which defines the practice of race-based discrimination or prejudice as a crime. The police office in charge of the inquiry took testimony from all the persons involved: the alleged perpetrator of the violation and her husband, the alleged victim and witness, and the woman who answered the phone call from Ms. Simone Diniz. 13. According to the petitioners, on March 19, 1997, the police officer prepared a report on the criminal complaint and sent it to the judge. The Public Ministry was informed of the inquiry – only the Public Ministry has standing to begin a public criminal action. The Public Ministry issued a statement on April 2, 1997, asking that the proceeding be archived, reasoning ... it was not possible to find in the record that Aparecida Gisele has engaged in any act that could constitute the crime of racism, provided for in Law 7,716/89...” and that there was “... no basis for the complaint” in the record. 14. The petitioners reported that the judge handed down a judgment to archive on April 7, 1997, based on the reasons set forth by the member of the Public Ministry. 15. The petitioners alleged that the police inquiry had indicia of sufficient and adequate evidence for the criminal complaint based on a violation of Article 20, header, of Law 7,716/89, as the perpetrator of the criminal offense and the fact that it happened were shown. In addition, they argued that the mere publication of the discriminatory ad already constituted a crime punishable under Article 20(2) of the same law, there being in these facts sufficient grounds for the Public Ministry to have initiated the criminal action. 16. Moreover, according to the petitioners, the Public Ministry would not have been able to base itself on the alleged fact, not proven, that Ms. Aparecida apparently had had a negative experience with a black employee who mistreated her children. These facts, according to the petitioners, did not authorize Ms. Aparecida to discriminate against another black domestic employee. The mere fact that she is married to a black man did not release her of liability or make her less guilty of the offense. 17. Finally, they adduced that “even though the Public Ministry gave its opinion in favor of archiving the police inquiry, the judge was not obligated to accept it. If he did so, it was because he too failed to act diligently to assess the facts.” 18. The petitioners alleged that the Brazilian State...