Brazil11.599

Marcos Aurelio de Oliveira v. Brasil, Case 11.599, Report Nº 10/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 413 (1999).

REPORT N^o 10/00*
CASE 11.599
MARCOS AURELIO DE OLIVEIRA
BRAZIL
February 24, 2000

1. On December 7, 1995, the Inter-American Commission on Human Rights (hereinafter the Commission) received a petition from Centro de Defensa y Garantía de the Derechos Humanos/Proyecto Legal del Instituto Brasileño de Innovaciones en Salud Social (I.B.I.S.S.) against the Federative Republic of Brazil (hereinafter Brazil or the Brazilian State), denouncing the alleged homicide of Marcos Aurelio de Oliveira, a minor, in Rio de Janeiro on September 25, 1993, by a civil policeman of the State of Rio de Janeiro and known extortionist of homeless minors. The victim was allegedly attempting to rob the driver of a car when the attack occurred; another boy who was an eyewitness and testified to the responsibility of the policemen, was later intimidated and changed his testimony. Four months later, the accused policeman discovered this witness and attempted to kill him.

2. At the time of lodging the petition more than two years later in December 1995 the police investigation had still not concluded. According to the petition, the events constitute grave violations on the part of Brazil of the rights guaranteed in the American Convention on Human Rights (hereinafter the Convention) in Articles 4 (right to life), 8 (right to a fair trial), 19 (rights of the child), 22 (rights to freedom of movement and residence), and 25 (right to judicial protection). The Commission concludes this case is admissible, that the boy Marcos Aurelio de Oliveira was unlawfully executed by the policeman and that the investigation was not carried out in compliance with the duties of the State and pursuant to the judicial guarantees that same is required to provide. The Commission recommends that the persons responsible for the various different violations be processed and punished and that the relatives of the victim be compensated.

3. The Commission received the petition on December 7, 1995, in the course of a visit to Brazil. The petition was forwarded to the Brazilian State on March 22, 1996, in order that it present its comments within a period of 90 days. Five months later, on August 28, 1996, the State requested an extension, given the complexity and scope of the inquiries underway; the Commission granted an extension of 15 days.

4. On October 28, 1996, the Commission repeated its request to the State, mentioning the possibility of applying Article 42 of the Commissions Regulations, pursuant to which the facts reported in the petition are presumed to be true if, during the maximum period provided for under the Commissions regulations the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.

5. On August 5, 1997, the petitioners informed the Commission that as yet they had received no news about the progress of the police investigation from the Brazilian authorities responsible, and requested that the respective report be prepared. The Commission repeated its request for information to the Government on September 10, 1998, without receiving a reply.

6. On October 13, 1998 the Commission placed itself at the disposal of the parties for 60 days in order to initiate a friendly settlement proceeding, but did not receive a positive response to that offer.

7. The petitioners present the case of the homicide of Marcos Aurelio de Oliveira Santana, aged 17. The homicide occurred on September 24, 1993, at approximately 18:00 hours, on the corner of two main avenues in the neighborhood of Castelo, Rio de Janeiro, and was caused by shots from a firearm (Death Certificate 56, Ministry of Health, Forensic Medicine Institute, hereinafter Annex 4) which, according to several testimonies, were fired by a short, dark-skinned man, aged between 25 and 30, allegedly the civil policeman known as Robocop.

8. A key witness in the case, an adolescent called Mario de Souza Goudinho, aged 17, recounted that shortly prior to the homicide, the victim, Marcos, threatened a woman in a beige-colored Escort with piece of glass, probably with the intention of robbery. This witness maintained that, beforehand, a man with the same features as the man who later shot Marcos, passed by him and stared at him intently. When this witness had reached the other side of the street another witness known as Fufu gave a warning shout to Marcos. On looking behind him, without having time to flee, Marco was struck by shots from the firearm (News article in Jornal do Brasil 26/9/93, hereinafter Annex 5).

9. This newspaper account (Annex 5) states that Marcos was a member of a group of 50 minors who reside and spend the night in the Cinelandia area. However, Marcos was receiving training from the I.B.I.S.S., with a view to enlisting in the Army. The news article mentions that according to the testimonies of the minors, the man who shot Marcos had been following them from the Museum of Modern Art, where they had gone to look for blankets with which to keep themselves warm while sleeping rough; they would hide these blankets in a hole in a building known as their wardrobe.

10. The newspaper account alleges that several witnesses saw the attack on Marcos Aurelio de Olivera. A female bus passenger testified confidentially that the man who fired seemed a person accustomed to killing. She said that after shooting, he walked unhurriedly away toward a white car waiting with another man at the wheel.

11. On September 28, 1993, a police investigation was opened by the Third Precinct of the Rio de Janeiro Police. The investigation records contain the declaration of another boy called Alexandre de Oliveira da Silva, who claimed to have seen a man of short stature wearing a black suit--however, he was unable to see the color of his skin--loitering in the area moments before the crime. He affirmed, moreover, that although he had not seen if the man was holding a revolver in his hand, he remembered hearing the sound of a gunshot, which struck Marcos Aurelio. In the opinion of Alexandre and other of his fellow minors, from the circumstances of the crime, the murderer arrived at the scene with the purpose of killing Marcos Aurelio (Testimony to the Police of Alexandre de Oliveira da Silva, aged 15, attached as Annex 6).

12. On the scene of the crime shortly after it occurred, the key witness Mario de Souza Goudinho had said to members of IBIS and to journalists that the killer was a civil policeman called Robocop, who was known for his practice of extorting minors. He also identified features of the killer that coincided with the description given by the other witness, and confirmed that after killing [Marco Aurelio] the assailant left the scene and went to a nearby parking lot where a waiting accomplice was leaning against a white car (Petition and news article in Jornal do Brasil, 26/9/93, Annex 5).

13. The petitioner claims that a street educator stated that the witness Mario had later been pressured by his group of friends into changing his account of the killing. The aforesaid educator thinks that the friends had been intimidated and were afraid of reprisal, and that Mario changed his testimony at the Police Precinct out of fear. The petition does not include a copy of the declaration that Mario gave at the Police Precinct.

14. The original account of the witness Mario was lent weight, according to the petitioners, as a result of an attack on him a few months later. According to another newspaper article (Article in O Día of February 9, 1994, Annex 7) the aforesaid witness, Mario de Souza Goudinho, was the target of an attack on a street in Cinelandia in the early hours of February 9, 1994, and that he recognized the man who tried to kill him as the same person who killed Marcos. The witness says that the man in question, Robocop, lifted the blanket away from his face as he was sleeping on the street opposite Bobs restaurant at three in the morning. Upon realizing that the man was Marcos murderer, Mario ran toward the Cinelandia Military Police Post pursued by the man, who shot twice at him. Another man, whom Mario recognized as Robocops accomplice, came out of a hotel, tried to stop him, and fired another shot at him without hitting him. On reaching the Military Police Post, Mario took refuge inside. He saw the man who had tried to kill him and tried to hide inside the post. After a time the policemen made him leave the Post but as a precaution Mario remained nearby for the rest of the night.

15. The petitioners mention that the day after the murder in September 1993, they requested protection for the witness Mario before the Office for Children and Adolescents Rio de Janeiro. Protection was granted but, despite the urgency, not put into effect (Annexes 8 and 9). Following the attack, on February 8, 1994, the lawyers for the I.B.I.S. again applied for protective measures and for the witness to be deposed, as well as requesting an expert opinion of the attack. Only then, on February 9, were protective measures put into effect and the witness taken into the Shelter for witnesses.

16. The petitioners allege omission on two counts by the Brazilian authorities in the police investigation proceedings. The first omission refers to the halting of the investigations conducted by the police, which, despite having a period of 30 days in which to conclude, pursuant to the provisions the Criminal Code, had continued for two years without completion as of the date of the petition. The petitioners allege that the foregoing justifies acceptance of the exception to the requirement to exhaust domestic remedies provided for in Article 46(2)(c) of the Convention. The second omission refers to the Office of the Attorney General, which ought to as prosecuting attorney demand compliance with deadlines prescribed by the law, but which offered no opinion in this case.

17. The petitioners request that the Brazilian State be declared in violation both for the death and for the failure to afford due process of law and judicial guarantees; that the Commission recommend to the Brazilian State that it complete the investigation and processing of the persons responsible for violating the rights of Marcos Aurelio de Oliveira Santana; and that compensation be awarded to his family.

18. The Brazilian State did not reply to the repeated requests from the Commission for comments on the admissibility and merits of the petition. The Commission also finds that the Brazilian State has failed to date to reply to the facts set out in the petition, in spite of the different notes from the Commission requesting that it do so, and that the periods established in the Convention and in the Commissions Regulations for said reply have long elapsed.

19. The Commission is competent to take up this case as it deals with allegations regarding violation of human rights recognized in Convention, to wit: (right to life) Article 4, (right to a fair trial) Article 8, (rights of the child) Article 19, (rights to freedom of movement and residence) Article 22 and (right to judicial protection) Article 25, pursuant to Article 44 of the aforesaid Convention, to which Brazil has been party since September 25, 1992. The events occurred while the Convention was in force insofar as the State is concerned, and it is alleged that the persons responsible are agents of that State in the employ of the police and of the Office of the Attorney General.

B. Responsibility of the State as regards acts or omissions of its organs and agents, as well as those of its Federal States

20. Article 1(1) of the Convention clearly establishes the obligation of the State to respect the rights and freedoms recognized therein and to ensure free and full exercise of those rights and freedoms. Accordingly, any impairment of the rights recognized in the Convention which can be attributed under the rules of international law to an action or omission of any public authority constitutes an act imputable to the State.^[1]

21. In accordance with Article 28 of the Convention, in the case of a federal state like Brazil, the national government responds internationally for acts carried out by the constituent entities of the federation. The instant case deals with allegations of human rights violations committed by an officer of the civil police of the State of Rio de Janeiro.

22. Pursuant to Article 46(1)(a) of the Convention, for a petition to be admitted by the Commission it is necessary that the remedies under domestic law shall have been exhausted in accordance with generally recognized principles of international law. However, the aforementioned article establishes that those provisions do not apply when:

a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;

b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

23. The petitioners reported that, despite the police investigation having been opened on September 28, 1993, and more than two years having elapsed since the date the petition was filed, the investigation remains open and unconcluded. Brazilian criminal law provides for a deadline of 30 days for the conclusion of police investigations. This deadline is extendable by court order, which did not happen in the instant case. By the same token, nor did the Office of the Attorney General, which is in charge of monitoring compliance with deadlines, intervene to ensure their effect.

24. The interval of two years between the occurrence of the events and the filing of the petition without police investigation having been completed, constitutes unwarranted delay in accordance with Article 46(2) on the question of exhaustion of domestic remedies. That delay impeded due process of those responsible and denied the victims relatives the possibility of judicial proceedings for seeking compensation. In accordance with Article 46(2)(b), the foregoing, in denying the alleged injured parties access to the remedies under domestic law, constitutes another of the exceptions provided to the requirement to exhaust domestic remedies.

25. To date, the Brazilian State has not submitted a reply to the petition, even though the Commission has repeated its requests and the conventional time limits stipulated in the Commissions Regulations have expired. The Commission understands that such silence implies a tacit waiver of the right to allege lack of prior exhaustion of domestic remedies established in Article 46 of the Convention.^[2]

26. There being an unwarranted delay in the administration of justice, the exception established in Article 46(2)(c) of the Convention and in Article 37(2)(c) of the Commissions Regulations applies to the requirement regarding the six-month deadline for lodging petitions with the Commission following the date on which the party whose rights have been violated has been notified of the final ruling. Since the complaint was filed two years after the alleged violation of rights, the Commission considers that the petition was lodged within a reasonable period of time in accordance with Article 38(2) of its Regulations.

27. To the Commissions knowledge the subject of the petition is not pending in another international proceeding for settlement.

28. The silence on the part of the State concerning this petition contradicts its obligation as a State Party to the American Convention with regard to the functions of the Commission to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through 51 of this Convention. The analysis that follows is done based on the elements in the record before the Commission. Taking into consideration Article 42 of the Commissions Regulations, noting that during the maximum time period set in accordance with Article 34(5) of the Regulations, the State has not provided the information requested. The Commission has analyzed the available evidence presented by the Petitioners, which was not contradicted by the State, and makes the following conclusions.

29. Article 4 of the Convention provides that no one shall be arbitrarily deprived of his life. The victim, Marcos Aurelio de Oliveira Santana, aged 17, was a homeless boy, the member of a group of young people who resided in the vicinity of Cinelandia, and was in contact with I.B.I.S, an organization that provides protection and defense for minors and petitioners in the case. Marcos was receiving training from the petitioning entity I.B.I.S.S. with a view to enlisting in the Army (Petition and Annex 4). According to several minors who gave statements to the press and members of IBISS, in particular the eyewitness Mario de Souza Goudinho, the victim, Marcos Aurelio de Oliveira Santana, was killed by a civil policeman of the State de Rio de Janeiro, who is known as Robocop and accused of extorting homeless young people.

30. Further testimonies allege that the person who shot Marcos seemed someone accustomed to killing, and that he calmly left the scene and got into a car where another person was waiting for him. The same policeman was subsequently identified by the witness, Mario, as the person who found him sleeping rough four months later and who shot at him in an attempt to kill him. Furthermore, when he managed to reach the nearby MP (Rio de Janeiro Military Police) post, the same man was there conversing with the policemen. This witness was then granted precautionary measures by a competent judge in light of this attack, committed by the person whom the witness identified as the same man who attacked the victim Marcos Aurelio, and who he maintained is a policeman who extorts homeless minors.

31. During the police investigation phase a declaration was taken from the minor Alexandre Oliveira da Silva, who affirms that he saw a man with the same characteristics as that identified by Mario, hanging around the building moments before the crime. Alexandre also declared that he believed that the murderer acted in a premeditated manner and had the specific intention of killing the minor Marcos Aurelio.

32. The Commission has also seen that, at the time, persecution and extermination of homeless children and young people was a method frequently used in Rio de Janeiro by State or private security agents for personal reasons or as a means of alleged social cleansing. The Commission has ruled against this practice, which constitutes one of the most horrifying systematic violations of the right to life and personal security, and implies a breach by the State of its obligation to guarantee the rights of all persons, particularly the rights of children and minors.^[3] In examining the case the Commission considers the testimonies and evidence contained in the case records to be the central elements on which to base its conclusions. However, it considers that it should mention this general situation to make it clear that this was not an isolated or anomalous incident, but an example of the systematic attitude of some police officers at that time.

33. The Commission must consider whether the shot fired by the security agent, which cost the victim his life was the result of the need to prevent a greater crime, or was legitimate self-defense on the part of the policeman. The Commission takes in account the Basic Principles on the use of Force and Firearms by Law Enforcement Officers, which clearly define the legitimate uses.^[4] Although the State has not pleaded this defense, the Commission considers that it should address this point. There is no evidence in the instant case that supports either of these scenarios, or that the youth was armed or threatening to kill the policeman or any other person. Taking the life of a person who is allegedly committing a robbery in the street is not the legal way to react for the security forces. Moreover, there are testimonies stating that this policeman had previously harassed these young people, and had followed them from the area around the Museum of Modern Art. Equally, after taking the victims life he left calmly with the aid of another individual, who was waiting for him in a car. There is no information that standard investigative tasks were performed as regards gathering evidence and testimonies, which should be carried out immediately after a homicide. In this particular case other circumstances make this homicide even more illegally perverse as there are clear signs of prior persecution and disdain for the rights of this minor and his companions.

34. Based on the testimonies and evidence contained in the record and presented here, the Commission considers that there is sufficient clear and forceful evidence to lead it to the full conviction that agents of the Rio de Janeiro Police violated the right to life of Marcos Aurelio de Oliveira Santana, on September 25, 1993 in that city.

36. Article 227 of the Federal Constitution of Brazil of 1988 establishes that it is the duty of the family, of society, and of the State to give the utmost priority to guaranteeing the right to life of the child and adolescent, as well as to protect them from any form of negligence, discrimination, exploitation, violence, cruelty, and oppression. The Brazilian Statute on the Child and Adolescent reiterates the guarantees stipulated in the Constitution. The foregoing means that the legislation on the rights of minors in Brazil constitutes an adequate legal framework for protecting the life of the child in light of the obligations emanating from the Convention.

37. However, the reality in Brazil at the time of the events denounced proved different. In its report on the human rights situation in Brazil, the Commission stated that a significant percentage of homeless children live in crime and have critical family backgrounds, subsisting on the proceeds of petty theft or provision of services (including drug trafficking). Their lives are generally short, very often dying as victims of extermination squads formed by the police themselves, as well as of the violence in which their situation envelopes them^[5] . The aforementioned report underscores that, The figures on police violence have declined notably since 1993 in Sao Paolo and increased since May 1995 in Rio de Janeiro^[6]. The situation of Marcos Aurelio fits perfectly into this context, given that the minor lived on the streets of Rio de Janeiro, surviving on petty robbery and ending as the victim of arbitrary police action.

38. Accordingly, the Commission finds that, while the domestic legislation and the Convention ratified by Brazil recognize the primary obligation of the State to provide the child special care and attention entitled by his or her vulnerable condition^[7], in the instant case the state institutions did not afford the basic conditions for fulfilling their duty to protect the minor Marcos Aurelio from violence, and were in breach of Article 19 of the Convention.

39. The petitioner also alleges violation of the rights to freedom of movement and residence, in regard of which Article 22 of the Convention provides:

1. Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law.

2. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedoms of others.

40. In considering this point, the Commission finds that the apparent freedom of these children and young people to move about, find means of survival, and sleep rough at night is not freedom as such. Not only the social circumstances of their families, but also the lack of adequate State measures to provide them with a framework of education, health, a home, and support, force them to be there. Children and young people, like Marcos Aurelio live in the street in spite of their wishes, owing to the lack of options and minimum safeguards to provide them opportunities and direction to their lives with the minimum standards that Brazils Constitution and international commitments guarantee them.

41. These guarantees, insofar as children and minors under the age of 18 are concerned, are broadened in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), which provide for special guarantees in police and judicial treatment of alleged infractions by minors. Point 5(1) of those rules state:

The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.^[8]

42. Moreover, the States forsaking of its duties to provide protection and care in this case are aggravated by the harassment and violence exercised by agents of the security forces, and by the failure to respect either judicial guarantees or the principle of presumed innocence. That vicious circle of exclusion, lack of opportunities, persecution, and coexistence with unlawfulness of minors like Marcos Aurelio, which is completed with the distrust that it generates in sectors of society, encourages corruption of the security forces in their treatment of them; this, in turn, generates more exclusion and violence. The efforts of institutions like the I.B.I.S.S., which try to offer an honorable way out of that excluded existence, are frustrated. Furthermore, each incident like the one which resulted in the events denounced makes solving the problem more difficult and enhances the vicious circle^[9].

43. Consequently, the rights of freedom of movement and residence of minors, particularly those of the victim and the threatened eyewitness in this case, were violated by the State through the harassment and attack on the part of an agent of the police, as well as by the negligence of other agents in furnishing the necessary conditions to give effect to their rights to freedom of movement and residence in reasonable conditions of safety.

44. Articles 8 and 25 of the Convention grant every person the right to recourse to judicial remedies when his rights have been violated, and to a hearing by a competent authority or tribunal. Article 25 of the Convention provides:

45. The Commission has stated previously that when, as in the instant case, the victim is not in a position to seek compensation before the courts, the right to recourse to this means is necessarily transferred to the relatives of the victim. The Commission has reached the conclusion that victims and/or their relatives have the right to a judicial investigation by a criminal court intended to establish and punish responsibility in cases of human rights violations.^[10] This conclusion emanates from the duty of the State "to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation".^[11]

46. The Inter-American Court of Human Rights has ruled on the obligation of the State to investigate acts that violate human rights protected by the Convention:

The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.^[12]

47. The petitioners informed the precinct in charge of the police inquiry that they possessed information about another witness, who had information that would facilitate their investigations. Out of lack of diligence, the police authorities did not take steps to continue the investigations intended to establish the identity of the perpetrator of the crime, despite clear evidence contained in the declaration of the minor Alexandre, the important information of another potential witness (the female bus passenger), and the attempt on the life of the minor Mario, allegedly committed by the same man who killed the minor Marco Aurelio.

48. En the instant case, the investigation did not include several essential regulation procedures. Testimonies were not taken from other witnesses who were present during the perpetrators attack and escape; no investigation was made as to whether the victim was armed or of the circumstance of his alleged unlawful conduct (attempted robbery, according to the petitioner); and no investigation was made of the second person who was waiting for the policeman in the white car and who allegedly also appeared in a threatening manner following the attack on the witness four months later. Furthermore, no investigation was made of the relationship between the assailant and the policemen on duty at the Military Police post, where the witness, Mario, saw them; nor was an investigation made as to why those policemen refused to shelter Mario when he requested that they do so since an attempt had been made on his life and he had been threatened. Nor was an investigation conducted into the background of the policeman, who was accused of harassing and extorting these minors. The foregoing elements lead the Commission to conclude that the investigation was not undertaken with the guarantees of seriousness required under Article 25 of the Convention.

49. Those judicial guarantees should also be analyzed in respect of the alleged delay in investigating the events. In order to determine reasonableness of time^[13] in reference to Articles 8 and 25 of the Convention, the Commission must carry out an overall analysis of the aforesaid police investigation.

50. Under the inter-American system of protection of human rights there are provisions relating to the question of reasonable time in which a case of human rights violation should be solved. Indeed, the American Convention stipulates a series of guarantees that must be present in every judicial investigation process, in order for it to be substantiated within a reasonable period of time. On that score Article 8(1) states that:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal.

Everyone has the right to simple and prompt recourse (...) to a competent court or tribunal for protection against acts that violate his fundamental rights

51. Both the European Commission and Court of Human Rights, as well as the Inter-American Commission, have established a set of criteria or considerations to take into account in order to determine whether or not in a particular case there has been unwarranted delay in administration of justice, "which does not prevent, were that the case, any one of them from carrying decisive weight".^[14] The criteria established by jurisprudence for determining reasonable time are as follows: (1) complexity of the case; (2) conduct of the plaintiff as regards his cooperation with the proceeding; (3) handling of the instruction phase of the proceeding; and (4) conduct of the judicial authorities.

52. In order to carry out a proper analysis of the complexity of the case it is necessary that we look at its background: the violation of the right to life. In consequence, it is necessary to perform an objective appraisal of the circumstances of the incident and of the personal conditions of the alleged guilty parties. On the face of it we have two alleged crimes: homicide and attempted homicide, both in plain and straightforward circumstances. The above characteristics mean that the instant case is not complex and easy to investigate. The jurisprudence adopted by the Inter-American Commission on Human Rights in Case 10.037 (Firmenich) is illustrative, given that the Commission declared the petition inadmissible because the characteristics of the case itself and the complexity of the causes involved in the proceedings therein did not constitute an unwarranted delay in administration of justice.

53. In another case before the Commission a State alleged complexity of the litigation, and that the reasons why the investigation had not been completed were due to the extremely serious nature of the events denounced, to the complexity of the situation, and to the seriousness with which the competent authorities had undertaken to examine and clear up those charges. In that case, the Commission considered that the fact that more than two years had elapsed since the events took place and that as of the date of filing the petition there had been no exercise of the pertinent penal action, nor any indication that this was in the offing clearly showed that the investigations have not been conducted responsibly.^[15]

54. According to information in the Commissions possession, the police investigation began on March 9, 1992 and remains open to date. Six years have elapsed without the Commission having received information indicating that the investigation has been completed, even though Brazilian legislation provides 30 days for the conclusion of the aforementioned investigation.

55. In the instant case it is up to the Office of the Attorney General, which has jurisdiction over enforcement of the law insofar as judicial proceedings and deadlines are concerned, to demand the inquiry be carried out by the police precinct responsible. It emerges from the record that more than five years have elapsed since the date of the events and yet the inquiry has still not been brought to a conclusion and the pertinent criminal proceedings proposed.

56. In light of all of the foregoing, the Commission considers that the inefficiency, negligence, or omission on the part of the authorities in the investigations, which culminated in an unwarranted delay in concluding the police inquiry, not only released the petitioners from the obligation to exhaust the remedies under the domestic jurisdiction, as is already mentioned in the part relating to admissibility, but also violates Articles 8 and 25 of the Convention, by denying the relatives of the victim the right to seek justice within a reasonable time via a simple and prompt recourse. Article 1(1) of the Convention provides that the States Parties to the Convention undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms.^[16]

The Commission transmitted the previous report to the State on March 24, 1999, granting it a period of two months in which to comply with the recommendations formulated. Furthermore, the Commission notified the petitioners of the approval of a report under Article 50 of the Convention. The period granted elapsed without the Commission receiving a response from the State in respect of the said recommendations.

1. The Commission reiterates its conclusion that it is competent to hear this case and that the petition is admissible, pursuant to Articles 46 and 47 of the American Convention.

2. Based on the events and the analysis set out above, the Commission reiterates its conclusion that the Federative Republic of Brazil is responsible for violating the rights to life (Article 4), rights of the child (Article 19), rights to judicial guarantees and to judicial protection (Articles 8 and 25); for breaching the duty of the State to ensure and respect the rights [Article 1(1)] enshrined in the American Convention on Human Rights in relation to the homicide of Marcos Aurelio de Oliveira Lima by a civil policeman of the State of Rio de Janeiro; and for failure to investigate and effectively punish those responsible.

Based on the foregoing analysis and conclusions, the Inter-American Commission on Human Rights reiterates the following recommendations to the State of Brazil:

1. To carry out a complete, impartial, and effective official investigation to ascertain the circumstances of the death of the minor Marcos Aurelio de Oliverio Santana and the attack on Mario de Souza Godinho, as well as the unwarranted delay in the police investigation of those events; and to punish those responsible in accordance with Brazilian law.

2. To adopt the necessary measures for the relatives of the victim to receive adequate and timely compensation for the violations established herein.

3. To adopt the necessary measures to ensure compliance with the States undertakings in respect of homeless minors in the city of Rio de Janeiro, pursuant to the stipulations in its legislation, in the American Convention on Human Rights, in the United Nations Convention on the Rights of the Child, and in related instruments in force.

57. The Commission transmitted the report adopted pursuant to Article 51 of the American Convention to the State and to the petitioner on October 15, 1999, and gave the State one month to submit information on the measures adopted to comply with the Commissions recommendations. The State failed to present a response within the time limit.

58. Pursuant to the foregoing considerations, and in conformity with Article 51(3) of the American Convention and Article 48 of its Regulations, the Commission decides to reiterate the precedent conclusions and recommendations, to make this Report public, and to include it in its Annual Report to the General Assembly of the OAS. The Commission, pursuant to its mandate, shall continue evaluating the measures taken by the Brazilian State with respect to the recommendations at issue, until they have been fully fulfilled.

Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 24^th day of the month of February in the year 2000. (Signed): Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice- Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.

* Helio Bicudo, a Brazilian national, who is a member of the Commission did not take part in the discussion or in the voting in this case in accordance with Article 19(2)(a) of the Regulations of the Commission.

^[1] Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of June 29, 1988, para. 164.

^[2]Inter-American Court of Human Rights, Viviana Gallardo Case, September 13, 1981, para. 16; Velásquez Rodríguez para. 88; Caballero Delgado and Santana, Preliminary Objections, Judgment of January 21, 1994, para. 66. On the same matter, jurisprudence states: It being a right that can be waived, albeit tacitly, it must be presumed that there exists the opportunity to exercise it, and that said opportunity only arises during admissibility proceedings of the petition before the Commission. Consequently, should the respondent State, through negligence, carelessness, or ignorance on the part of its attorneys, not allege non-exhaustion of domestic remedies during this stage of the proceeding, it would be prevented subsequently from doing so before both the Commission and the Court. (Faúndez L. Hector, El Sistema interamericano de protección de los derechos humanos, aspectos institucionales y procesales, IIDH, San José 1998/ p. 198).

^[3]The rights of minors and children, in Report on the Human Rights Situation in Brazil. IACHR, Washington D.C., September, 1997.

^[4] United Nations. Basic Principles adopted by the 8^th Congress on Crime Prevention and Treatment of Offenders. Havana, Cuba, August 27^th to September 7, 1990. The following paragraphs apply in particular:

Law enforcement officers will not use firearms except in self defense or the defense of others against imminent threat of death or serious injury; to prevent the execution of a crime particularly grave involving serious death threat; to arrest someone that presents such danger and resists the authority, or to prevent his/her escape, and only when other meassures less extremes are insufficient to achieve those goals. In all cases, the intentional use of firearms can only be accomplished when strictly inavoidable to protect human life.

In the cases indicated in Principle 9, law enforcement officers shall identify themselves as such and give clear notice of their intent to use firearms, with enough time for the notice to be received, except when to do so may unduly put in risk the law enforcement officer, or it could create a death risk or risk of serious injury to others, or it will be clearly inappropiate or not useful in the circumstances of the incident.

^[5] Report on the Human Rights Situation in Brazil, IACHR, OAS, Washington, D.C., 1997, p. 80, para. 16.

^[6] Report on the Human Rights Situation in Brazil, IACHR, OAS, Washington, D.C., 1997, p. 85, para. 31.

^[7] The Convention on the Rights of the Child, ratified by Brazil, says, inter alia:

Article 3. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being.

Article 20. A child temporarily or permanently deprived of his or her family environment, ... shall be entitled to special protection and assistance provided by the State.

^[8] Adopted by General Assembly Resolution 40/33 of November 29, 1985.

^[9]The Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) say that Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible.

^[10]See, in general, Reports Nº 28/92 (Argentina) and Nº 29/92 (Uruguay) in IACHR Annual Report 1992-93, OAS/Ser.L/V/II.83, doc. 14 corr. 1, March 12, 1993, pp. 51-53, 169-74.

^[11]Velásquez Rodríguez Case, supra, paragraph 174.

^[12] Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgement of July 29, 1988, paragraph 177, pp. 74-75.

^[13] The right to a trial within a reasonable time provided for in the American Convention is based, among other things, on the need to avoid undue delays that translate into a deprivation and denial of justice to the detriment of persons who argue that their rights protected in the American Convention have been violated (Report 43/96, case 11.411, Mexico, p. 483, para. 53, 1996 IACHR Annual Report).

^[14]See, for example: IACHR Resolution Nº 17/89, Case Report 10.037 (Mario Eduardo Firmenich) in the 1988-1989 Annual Report of the Inter-American Commission on Human Rights, page 38; the European Court of Human Rights: "Konig" Case, Judgment of June 28, 1978, Series A No. 27, pages 34 to 40, paragraphs 99, 102-105 and 107-111; the Guincho Case, Judgment of July 10, 1984, Series A, No. 81, page 16, paragraph 38; Union Alimentaria Sanders S.A., Judgment of July 7, 1989, Series A, No. 157, page 15, paragraph 40; Buchholz Case, Judgment of May 6, 1981, Series A No. 42, page 16, paragraph 51, pages 20-22, paragraphs 61 and 63; and the Kemmache Case, Judgment of November 27, 1991, Series A no. 218, page 27, paragraph 60.

^[15] IACHR 1997 Annual Report, p. 655 et seq. (Report 48/97 Case 11.411 Ejido Morelia, Paragraphs 46 to 48).

^[16] As the Inter-American Court of Human Rights notes, such an obligation implies ...the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention.