Maria da Penha Maia Fernandes v. Brazil

Maria da Penha Maia Fernandes was physically abused by her husband, Mr. Heredia Viveiros, for many years. In May 1983, he shot her while she was sleeping in an attempt to murder her. She survived but sustained serious injuries and became paraplegic. Two weeks after the shooting, he attacked her again and at that moment she sought legal separation. In 1984, criminal charges were brought against Mr. Viveiros and in 1991, seven years later, he was condemned to 15 years of prison. Three years later, an Appeal Court overruled that decision. A second trial took place in 1996 and he was found guilty and sentenced to 10 years imprisonment.

Fernandes submitted a petition before the Inter-American Commission on Human Rights claiming that the State had “condoned the situation” for more than 15 years by failing to prosecute her husband. She alleged violations of Article 1(1) (Obligation to Respect Rights), 8 (a Fair Trial), 24 (Equal Protection), and 25 (Judicial Protection) of the American Convention, in relation to Articles II and XVIII of the American Declaration of the Rights and Duties of Man (“the Declaration”), as well as Articles 3, 4(a), (b), (c), (d), (e), (f), and (g), and 5 and 7 of the Convention of Belém do Pará. The State did not submit a response on the admissibility or merits of the case.

The Commission declared the case admissible, finding itself competent to hear the case under the  American Declaration on the Rights and Duties of Man, the American Convention, and the Convention of Belém do Pará--the last two being legally binding on the State. The American Declaration covered the original assault in 1983 and the period of events prior to Brazil's accession to the American Convention and the Convention of Belém do Pará, which covered the events taking place thereafter.

The Commission concluded that the State violated the right to justice (Article XVIII) of the American Declaration and to a fair trial (Article 8) and judicial protection (Article 25) under the American Convention. The State's failure to prosecute Mr. Viveiros constituted denial of justice--there was an unreasonable delay in the launching of the investigation, more than 17 years had past since then, and the Brazilian courts had not yet made a final ruling on the case.

For the Commission noted that there were positive measures being adopted in Brazil to reduce the incidence of domestic violence, however, they did not have an impact on the State's tolerance of violence against women.

The Commission found the State in violation of Articles 7(b), (d), (e), (f), and (g) of the Convention of Belém do Pará in relation to rights enshrined in the instrument, including the right to a life free of violence (Article 3); the right of a woman to have her life, her physical, mental, and moral integrity, her personal safety, and personal dignity respected, to equal protection before and of the law, and to simple and prompt recourse to a competent court for protection against acts that violate her rights (Articles 4(a), (b), (c), (d), (e), (f), and (g)).

The Commission considered the treatment of the petitioner to be "part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors." It emphasized that the case was an example of both a failure to fulfill the obligation with respect to prosecute and a failure to prevent such violence. The absence of effective judicial action, impunity, and "the inability of victims to obtain compensation" demonstrated the State's "lack of commitment" in properly addressing domestic violence.

"39. In that regard, the determination of the meaning of the term "within a reasonable time" must be made taking into account the specific facts surrounding each case. In this case, the Commission took into account the claims of the petitioners and the silence of the State. The Commission concludes that the police investigation completed in 1984 provided clear and decisive evidence for concluding the trial and that the proceedings were delayed time and time again by long waits for decisions, acceptance of appeals that were time-barred, and unwarranted delays. Moreover, in the view of the Commission, the victim/petitioner in this case has fulfilled the requirement related to procedural activity with respect to the Brazilian courts, which is being handled by the Office of the Public Prosecutor and the pertinent courts, with which the victim/complainant has cooperated at all times. In the view of the Commission therefore, the characteristics of the case, the personal situation of persons involved in the proceedings, the level of complexity, and the procedural action of the interested party cannot explain the unwarranted delay in the administration of justice in this case."

"42. As the Inter-American Court of Human Rights has stated: "What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. Thus, the Court's task is to determine whether the violation is the result of a State's failure to fulfill its duty to respect and guarantee those rights, as required by Article 1(1) of the Convention" (citing Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1988, para. 173)."

"Also, the Court has stated the following: "The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention." (citing Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1988, para. 176; and Inter-American Court of Human Rights, Godínez Cruz case, Judgment of January 20, 1989, para. 187)."

"47. Compared to men, women are the victims of domestic violence in disproportionate numbers. A study done by the National Movement for Human Rights in Brazil compares the incidence of domestic violence against women and men and shows that in terms of murders, women are 30 times more likely to be killed by their husbands than husbands by their wives. In its special report on Brazil in 1997, the Commission found that there was clear discrimination against women who were attacked, resulting from the inefficiency of the Brazilian judicial system and inadequate application of national and international rules, including those arising from the case law of the Brazilian Supreme Court."

"53. The Convention of Belém do Pará is an essential instrument that reflects the great effort made to identify specific measures to protect the right of women to a life free of aggression and violence, both outside and within the family circle."

"54. Within the scope of application of the CMV, reference is made to situations defined by two conditions: first, violence against women as described in sections (a) and (b); and, second, violence perpetrated or condoned by the State. The CMV protects, inter alia, the following rights of women when they have been violated by acts of violence: the right to a life free of violence (Article 3), the right to have her life, her physical, mental, and moral integrity, her personal safety, and personal dignity respected, to equal protection before and of the law; and to simple and prompt recourse to a competent court for protection against acts that violate her rights (Articles 4 (a), (b), (c), (d), (e), (f), and (g), and the resulting duty of the State set forth in Article 7 of that instrument."

"55. The impunity that the ex-husband of Mrs. Fernandes has enjoyed and continues to enjoy is at odds with the international commitment voluntarily assumed by the State when it ratified the Convention of Belém do Pará. The failure to prosecute and convict the perpetrator under these circumstances is an indication that the State condones the violence suffered by Maria da Penha, and this failure by the Brazilian courts to take action is exacerbating the direct consequences of the aggression by her ex-husband. Furthermore, as has been demonstrated earlier, that tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women."

"56. Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfill the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts."

"57. [...I]n this case, which represents the tip of the iceberg, ineffective judicial action, impunity, and the inability of victims to obtain compensation provide an example of the lack of commitment to take appropriate action to address domestic violence. Article 7 of the Convention of Belém do Pará seems to represent a list of commitments that the Brazilian State has failed to meet in such cases."