Inter-American Court of Human Rights judgment of 16 February 2017 in the case of Nova Brasilia Favela v. Brazil (Series C, no. 333).
The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San José, Costa Rica). The complaint was then communicated to Brazil.
The case successfully addressed a complaint about the obligation to conduct an independent investigation of killings and sexual violence committed by police officers.
Duty to independently investigate killings and sexual assault committed by police officers.
THE CIRCUMSTANCES OF THE CASE
On 18 October 1994 and 8 May 1995, Rio de Janeiro's civilian police carried out two operations in the Nova Brasilia favela. In the first, she killed 13 men, including four minors, and committed acts of sexual violence against three young women, including 15- and 16-year-old girls.
The second operation resulted in the injury of three police officers and the death of 13 male members of the community, including two minors. The Brazilian authorities recognized that the conduct of State agents during these two operations amounted to violations of the right to life and the right to security of person, even if these facts did not relate to the period of jurisdiction of the Inter-American Court of Human Rights (hereinafter - the Inter-American Court). All 26 deaths were reported as having occurred in “resisting arrest resulting in the death of opponents” and “drug trafficking, [participation in] an armed group and resisting resulting in death”. As a result of both operations, the Rio de Janeiro civilian police opened an investigation, but it was completed in 2009 due to a statute of limitations. In addition, at the end of 1994, a special investigation commission was established to review the events of the first police operation. The investigations did not clarify the events surrounding the killings, and no sanctions were applied to anyone. The authorities did not investigate the acts of sexual violence.
QUESTIONS OF LAW
(a) Articles 8 (1) (right to a fair trial) and 25 (1) (right to a remedy) with respect to Articles 1 (1) (obligation to respect and ensure rights) and 2 (meaning of domestic law) of the American Convention on Human Rights Rights (hereinafter - ACHR) concerning 74 relatives of those killed during police operations, and with respect to Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Inter-American Convention to Prevent, Suppress and Punish Violence against Women (Convention Belém do Para) concerning the three female victims. The Inter-American Court ruled that an essential element of a criminal investigation into a death caused by a police intervention is that the investigating authority is independent of the officials involved in the incident. This independence implies the absence of an institutional or hierarchical connection, as well as its independence in practice. In this regard, cases of serious crime in which the police appear prima facie to be involved should be investigated by a police agency independent of the incident.
The Inter-American Court referred to the case-law of the European Court of Human Rights and pointed out a number of circumstances in which the independence of investigators could be affected in the event of death caused by the intervention of State agents. Among these, the Inter-American Court has noted the following indicators: (i) the investigating police themselves may be potentially suspicious, have an official relationship with the accused or have a hierarchical relationship with him, (ii) the behavior of the investigating authorities indicates a lack of independence, for example, the failure to take certain key measures to clarify the case and, if necessary, punish those responsible, (iii) excessive weight is given to the accused's account of the incident, (iv) there is an evasion of verification of certain lines of investigation that is clearly necessary, or (v) there is excessive inertia.
See, among the many other cited examples, Mustafa Tunç and Fecire Tunç v. Turkey, judgment of 14 April 2015, application no. 24014/05 (see full text : Precedents of the European Court of Human Rights, Special Issue. 2017, No. 1 (editor's note)), Al-Skeini and Others v. United Kingdom of July 7, 2011 application no.55721/07 (see: Bulletin of the European Court of Human Rights. 2015. no.2 (editor's note), and the judgment of the Grand Chamber of the European Court in the case "Armani da Silva v. the United Kingdom" (Armani Da Silva v. United Kingdom) dated 30 March 2016, application no. 5878/08.
In the opinion of the Inter-American Court, this does not mean that the investigating authority should be completely independent, but that it should be “sufficiently independent of the persons or structures whose responsibility is attributed” in a particular case. The determination of the degree of independence must be assessed in the light of all the circumstances of the case. The Inter-American Court has noted that if the independence or impartiality of the investigating authority is questioned, a more rigorous review should be carried out. Consideration should also be given to whether the lack of independence and impartiality had an impact on the effectiveness of the proceedings and, if so, to what extent. The Inter-American Court has specified interrelated criteria for determining the effectiveness of an investigation in such cases: (i) the adequacy of the investigative measures, (ii) the diligence of the investigating authorities, (iii) the participation of the family of the deceased in the investigation, and (iv) the independence of the investigation.
In the present case, the Inter-American Court took into account that the investigation of both police operations was entrusted to the same unit that was responsible for the incursions and found that guarantees of independence and impartiality had been violated. In addition, investigations by other units of the civilian police in Rio de Janeiro did not meet minimum standards of due diligence in cases of extrajudicial executions and gross violations of human rights. Even if police behavior was marred by inaction and negligence, other government agencies were able to remedy these problems, but did not. The Inter-American Court also noted that the authorities did not take steps to thoroughly investigate the sexual violence committed against three young women. Finally, it found that there was a denial of justice for the victims, since the right to judicial protection was not guaranteed to them from a material and legal point of view.
RESOLUTION
The case violated the ACHR requirements (adopted unanimously).
(b) Compensation. The Inter-American Court held that the present judgment was in itself a form of reparation, and ordered the State, inter alia, to (i) conduct an effective investigation into the facts relating to the deaths that occurred during the 1994 invasion, with due diligence and within a reasonable time, to establish , prosecute and, if applicable, punish those responsible, (ii) initiate or reopen an effective investigation into deaths that occurred during the 1995 invasion, (iii) initiate an effective investigation into sexual violence, (iv) publish an official report annually with data on deaths caused during police operations in all states of the country, with updated information on investigations carried out for each incident that resulted in the death of a civilian or police officer, (v) establish the necessary mechanisms to ensure that in cases of death, torture or sexual violence caused by police intervention, in which the sex the crime prima facie appear to be the accused, the investigation was passed on to an independent body other than the authority implicated in the incident, (vi) take the necessary steps to ensure that the State of Rio de Janeiro has a goal and policy to reduce homicide and police violence, (vii) take legislative or other measures to allow victims of crime or their family members to participate formally and effectively in the investigation of crimes committed by the police or prosecutors, (viii) take the necessary measures to standardize the expression "injury or death due to police interference" and (ix ) to pay compensation for non-pecuniary damage, as well as legal costs and expenses.