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Case of Favela Nova Brasília and ADPF 635: the Brazilian State continues to fail to comply with measures to face state violence

On May 24, the Federal Public Ministry (MPF), through the Regional Attorney for Citizens' Rights (PRDC), held the Public Meeting – ADPF 635 and the Prevention of International Liability in Brazil.

The objective was to discuss the guarantees of non-repetition provided by the Inter-American Court in the Favela Nova Brasília Case and to reflect on the impacts of ADPF 635 in the prevention of international responsibility in Brazil.

In addition to acting as amicus curiae in ADPF 635, it is a co-petitioner organization of the Favela Nova Brasília Case, within the framework of the Inter-American System of Human Rights, together with the Center for Justice and International Law (CEJIL).

On the occasion, the organizations held a speech denouncing the recurrent state violence in the Favela Nova Brasília case.

Check out the full speech by Nina Barrouin, co-coordinator of the Rights and Justice Systems area at ISER, and Lucas Arnaud, lawyer at CEJIL, during the hearing

“Good morning, my name is Nina Barrouin and here I represent the Institute for Religious Studies and the Center for Justice and International Law, civil society organizations that represent, before the Inter-American Court of Human Rights, people who have had their lives directly impacted by State violence, in the case known as “Favela Nova Brasília”, which gave rise to the international accountability of the Brazilian State for the violations of rights perpetrated by its agents.

Since the publication of the judgment in the case, in February 2017, the Brazilian State, both at the federal level and the state of Rio de Janeiro, has systematically failed to comply with the reparation measures determined by the Inter-American Court in its decision, which is a cause for concern. of civil society and the international community, aggravated by the resurgence of police violence, which continues to affect peripheral and black territories. 

Non-compliance with the reparation measures was also recognized by the Inter-American Court in its latest rulings in the context of the judgment supervision process. In these terms, we understand the centrality of spaces for dialogue like this one, but we hope that the positions presented here by civil society and social movements reverberate in concrete actions by the Brazilian State. 

It should be noted that ADPF 635 and the Favela Nova Brasília Case are deeply connected, given that they denounce the structural dynamics of police violence, which systematically affects black families. In these terms, it is clear that the maintenance of police violence as a daily reality in favelas and peripheries takes place through the accomplice of various instances of public power. The measures determined by the Inter-American Court in the judgment of the Case aim, in this sense, to combat bottlenecks that corroborate the maintenance of this scenario of structural violation of rights. In addition, parameters and determinations of the Inter-American Court underlie ADPF 635, as well as serve as guidelines for the decisions of the Federal Supreme Court. Finally, it should be noted that, unfortunately, just as the Brazilian State continues to fail to comply with the overwhelming majority of the measures determined by the Court, the State of Rio de Janeiro systematically fails to comply with the decisions of the Federal Supreme Court.

Here, we will briefly present the state of (non)compliance with the measures determined by the Court, in particular those that are directly related to ADPF 635, emphasizing, however, that all resolutive points are related to the ADPF, to the extent in which they aim at reparation and non-repetition of the facts narrated in the Case.

the resolving point seventeenth of the judgment of the Court, that determines the establishment of goals and policies to reduce lethality and police violence in the State of Rio de Janeiro, it was also reinforced and expressly determined in a precautionary decision by the Reporting Minister of ADPF 635, who ordered the elaboration of the Police Lethality Reduction Plan. In this context, the process of preparing the plan was marked by serious procedural defects, notably in relation to the ban on the participation of civil society and State bodies such as the Public Defender's Office and the Public Prosecutor's Office. In addition, Decree No. 47,802 followed a legal-political perspective opposite to that which guided the decision of the Supreme Court and the entire development of ADPF No. 635. Thus, the document reaffirmed the legitimacy of the use of bellicose violence in peripheral territories of Rio de Janeiro, it was silent about the relationship between racism and police lethality, not presenting measures to prohibit racial selectivity in police action, and reinforced the ideology of innocence, demarcating that some lives do not deserve to be protected. Still in the process of being discussed before the Supreme Court, the elaboration of the Plan in these terms cannot in any way be understood as a step towards the fulfillment of the Court's resolution.

Also pending compliance with the operative point sixteen of the international Judgment, which guides the creation of normative mechanisms so that cases where death, torture or sexual violence occurs as a result of police intervention are investigated by an independent body. Systematic non-compliance with the aforementioned resolutive point is presented by the State as an issue riddled by a formal obstacle: the absence of a normative framework at the national level that allows the development of independent investigations. It is stated that, however much the Public Prosecutor's Office exercises investigative power, it cannot do so exclusively, but rather as a cooperative activity in relation to the police authorities. 

In this sense, it remains clear that the State recognizes the non-compliance with the resolutive point. We emphasize that at the national level, within the scope of ADPF 635, the Federal Supreme Court has already taken a position reinforcing the said determination of the Inter-American Court, not allowing the argument of the absence of domestic norms to subsidize the establishment of independent investigations in cases in which there is suspicion of involvement of state agents. 

On March 10, the CNMP created a working group scheduled to operate for 180 days to “prepare a proposal for a Resolution to regulate investigations by the Public Ministry in cases of death, torture and sexual violence in the context of police interventions”, in compliance with the decisions of the STF and the Inter-American Court. However, we were not formally informed or invited to contribute to this reflection, which is at odds with the Court's understanding of the victims' participation in complying with the reparation measures determined by it.

O operative point nineteenth, which determines the formal and effective participation of victims or their next of kin in the investigation, Nor can it be considered fulfilled. Objectively, in the midst of the developments at the national level of the judgment of the Case, it remained clear that initiatives such as Resolution CNMP nº 201/2019 are not being applied in the daily functioning of the Public Ministry. Despite the justification of the Resolution referring to the Favela Nova Brasília Case and international parameters, the resolution was frontally disregarded in relation to the treatment given to the victims of the case, an issue that has already been informed to the Court and that will not be deepened here due to the sensitivity of the personal information of the parties involved. In addition, the State continues without presenting data that would allow a systemic assessment of how the application of the legislation has been taking place nationally. 

in relation to operative point fifteen of the international judgment, it should be noted that up to the present moment there is no annual publication that presents data on deaths that occurred during police operations throughout the country and the results of their investigations. The actions of the bodies listed by the State, namely: National Council of the Public Prosecutor's Office, the National Secretariat for Public Security and the Public Security Institute of the State of Rio de Janeiro, have not resulted, up to the present moment, in the elaboration and publication of data national updates on the issue. 

With regard to operative point eighteen of the international judgment, which determines the implementation of a program or course on assistance to women victims of rape in the state of Rio de Janeiro, the organizations representing the victims consider that this measure has a broad scope, demanding the creation of a program that effectively reformulates the assistance to women victims of rape in the state and that the details related to such a program must be discussed with civil society, process which until now has not even started.

We reinforce that the other resolutive points of the judgment are also connected with ADPF 635, and that there are serious problems with regard to the provision of psychological and psychiatric care to victims and victims' families, the measures of justice to investigate, prosecute and, if pertinent, punish those responsible for the facts related to the 1994 and 1995 incursions, the public act of acknowledgment of international responsibility, and the determination of standardization of the expression “bodily injury or homicide resulting from police intervention” in the reports and investigations of the police or the Ministry Public. With regard to indemnities, we salute the initiative of the Federal Government in resuming the dialogue to comply with the measure and we hope that the work progresses, being necessary, in an appropriate space, a deep debate on the problems involving the so-called Actions for Compliance with International Obligations (ACOIs).

That said, we thank you once again for participating in this space and we remain at your disposal, and following the next interventions.”

Watch the full hearing.