I/A Court H.R., Case of Favela Nova Brasília v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of February 16, 2017. Series C No. 333.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

Facts - On 18 October 1994 and 8 May 1995 the Rio de Janeiro civil police carried out two operations in the Nova Brasilia Favela. During the first three months, including four minors, and perpetrated acts of sexual violence against three young women, including a fifteen and a sixteen year old. The second incursion resulted in three wounded police officers and the deaths of thirteen male members of the community, including two minors. The State recognized that the conduct of public agents during these two police incursions constituted violations of the right to life and the right to personal integrity, even if the facts were not within the temporal jurisdiction of the Inter-American Court.

 

All 26 deaths were registered as “resistance to arrest resulting in the deaths of the opponents” and “drug-trafficking, [participation in an] armed group and resistance followed by death.” As a result of both operations, investigations were initiated by the Rio de Janeiro Civil Police; however, the investigations were closed in 2009 under the statute of limita­tions. In addition, a Special Investigation Commis­sion was set up in late 1994, focusing on the events of the first police operation. The investigations did not clarify the events surrounding the killings and no one was sanctioned therefor. The authorities did not conduct any investigation into the acts of sexual violence.

 

Law

 

(a) Articles 8(1) (right to a fair trial) and 25(1) (right to judicial protection), in relation to Articles 1(1) (obli­gation to respect and ensure rights) and 2 (domestic legal effects) of the American Convention on Human Rights (ACHR) in respect of 74 relatives of the men killed during the police incursions, and in relation to Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Inter-American Convention on the Prevention, Pun­ishment and Eradication of Violence against Women (“Convention of Belém do Pará”), in respect of the three female victims – The Inter-American Court considered that the essential element of a crimi­nal investigation into a death resulting from police intervention is to ensure that the investigating body is independent of the officials involved in the incident. Such independence implies the absence of an institutional or hierarchical relationship, as well as its independence in practice. In that regard, in cases of alleged serious crimes in which prima facie it appears that police personnel is involved, the investigation must be carried out by an inde­pendent body different from the police force involved in the incident.

 

The Inter-American Court referred to the case-law of the European Court of Human Rights 3 and iden­tified a number of circumstances in which the inde­pendence of investigators may be affected in the event of a death resulting from State intervention. Among them, the Court highlighted the following features: (i) the investigating police themselves are potentially suspect, are colleagues of the accused or have a hierarchical relationship with the accused; (ii) the conduct of the investigating bodies indi­cates a lack of independence, such as a failure to take certain key steps to clarify the case and, where appropriate, punish those responsible; (iii) exces­sive weight is accorded to the accused’s version of the events; (iv) there has been a failure to explore certain lines of investigation that were clearly nec­essary; or (v) there has been excessive inertia.

 

For the Inter-American Court this did not mean that the investigating body must be absolutely independent, but that it must be “sufficiently inde­pendent of the persons or structures whose respon­sibility is being attributed” in the specific case. The determination of the degree of independence will be assessed in light of all the circumstances of the case. The Court noted that if the independ­ence or impartiality of the investigating body is questioned, a more stringent scrutiny should be exercised. It should also be examined whether and to what extent the alleged lack of independence and impartiality impacted on the effectiveness of the proceedings. The Court set out interrelated criteria in order to establish the effectiveness of the investigation in such cases: (i) the adequacy of the investigative measures; (ii) the diligence of the investigation; (iii) the participation of the family of the deceased person in the investigation; and (iv) the independence of the investigation.

 

In the instant case, the Court noted that the inves­tigations into both police operations had been assigned to the same branch responsible for the incursions and so found a violation of the guaran­tee of independence and impartiality. In addition, the investigations carried out by other branches of Rio de Janeiro’s civil police did not comply with the minimum standards of due diligence in cases of extrajudicial executions and gross human-rights violations. Even if the conduct of the police was plagued with omissions and negligence, other State bodies had had the opportunity to rectify these problems but had failed to do so. The Court further noted that the authorities had not taken any steps to diligently investigate the sexual violence com­mitted against the three young women. Lastly, it found that there had been a denial of justice for the victims, as they had not been guaranteed, materi­ally and legally, their right to judicial protection.

 

Conclusion: violation (unanimously).

 

(b) Reparations – The Inter-American Court estab­lished that the judgment constituted per se a form of reparation and ordered the State, inter alia, to: (i) conduct an effective investigation into the facts related to the deaths that occurred in the 1994 incursion, with due diligence and within a reason­able time, to identify, prosecute and, if applicable, punish those responsible; (ii) initiate or restart an effective investigation regarding the deaths that had occurred during the 1995 incursion; (iii) initi­ate an effective investigation regarding the sexual violence; (iv) publish annually an official report with data on deaths caused during police operations in all states of the country, with updated informa­tion on the investigations conducted in respect of each incident resulting in the death of a civilian or a police officer; (v) set up the necessary mechanisms to ensure that, in cases of deaths, torture or sexual violence resulting from police intervention, in which prima facie police officers appear as the accused, the investigation is delegated to an independent body that is different from the public authority involved in the incident; (vi) adopt the necessary measures for the state of Rio de Janeiro to estab­lish goals and policies to reduce police killings and violence; (vii) adopt legislative or other measures necessary to enable victims of crime or their family members to participate, formally and effectively, in the investigation of crimes conducted by the police or by the Public Prosecutor’s Office; (viii) adopt the necessary measures to standardise the expression “personal injury or homicide resulting from police intervention” in the reports and investigations in cases of death or injuries caused by police action; and (ix) pay compensation in respect of non-pecu­niary damage, as well as costs and expenses.