• Bruna Nowak

The (not so) “old” and the “new” before the IACtHR: Barbosa de Souza and Others v. Brazil

On February 3rd and 4th, the Inter-American Court of Human Rights (Inter-American Court or IACtHR) held public hearings regarding the Case of Barbosa de Souza and Others v. Brazil. The case was submitted before the Court by the Inter-American Commission of Human Rights (Inter-American Commission or IACHR) on July 11th, 2019. This article aims to highlight the nuances that make this case emblematic for the Court’s jurisprudence development.

Image Source: Organization of American States, Folleto Belém do Pará Convention.

The facts of the case concern the killing of Ms. Barbosa de Souza, a 20-year-old student, by a former State Deputy, Mr. Pereira de Lima, in 1998. Ms. Barbosa de Souza’s body was found in a vacant land in the city of João Pessoa, State of Paraíba, with signs of violence and asphyxia. The petitioners sustain that the parliamentary immunity of the former State Deputy caused the postponement of the criminal persecution, which would have resulted in impunity.

The murder of Ms. Barbosa de Souza happened on June 18th, 1998, almost six months before the acceptance of the IACtHR’s contentious jurisdiction by Brazil. Therefore, the deprivation of Ms. Barbosa de Souza’s right to life is not under discussion. In fact, in the Merits Report nº 10/19, the Inter-American Commission concluded that it is not possible to attribute direct responsibility to the State for the killing as a consequence of the violation of the obligation to respect or the obligation to protect the right to life.

Brazil’s international responsibility for the violation of articles 8 (right to a fair trial), 25 (right to judicial protection), 5 (right to humane treatment) of the American Convention on Human Rights, and article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) is under analysis by the Court.

The Case of Barbosa de Souza and Others v. Brazil is centered on two broad themes, an “old” one and a “new” one. The “old” one is referred to as such because it is a thematic well explored by the Inter-American System of Human Rights: violence against women. The Inter-American Commission considered that the murder of Ms. Barbosa de Souza is related to a structural context of violence against women in Brazil and that the circumstances of the criminal persecution of Mr. Pereira de Lima are linked to a general context of impunity based on gender stereotypes.

Both the Inter-American Commission and the Inter-American Court decided on several occasions about human rights violations against women. What would make this case distinguishable is that the aggressor, Mr. Pereira de Lima, committed the crime in a private capacity, regardless of his official position as a State Deputy. Therefore, since the murder itself is not directly attributable to the State, the Court will have to determine which facts would constitute human rights violations. A look at the Court’s case law about the subject may clarify this point.

The leading cases on violence against women judged by the Court refer to atrocities perpetrated by State officials in centers of deprivation of liberty or during armed conflicts. For instance, the Case of Miguel Castro Castro Prison v. Peru, from 2006, is the first case of application of the Convention of Belém do Pará and the first judgment about gender violence. It concerns the attack by policemen and members of the armed forces against women during their transfer from one center of imprisonment to another.

One year later, the Court judged the Case of González et al. (“Cotton Field”) v. Mexico, about the murder of women whose bodies, with signs of sexual violence, were found in a cotton field. It was the first occasion the Court recognized the existence of structural violence against women due to general and systematic violations. More recently, in 2018, the Court decided the Case of Women Victims of Sexual Torture in Atenco v. Mexico, about the illegal and arbitrary detentions of eleven women, who suffered psychological, physical, and sexual torture perpetrated by State agents.

Two sentences delivered by the Court also in 2018 are especially relevant for the present case: the Case of V.R.P, V.P.C et al. v. Nicaragua and the Case of López Soto et al. v. Venezuela. Despite the factual differences, in both cases, the person responsible for the acts of violence was not a State actor. In the first case, the Nicaraguan State was held responsible for the failure to investigate the facts with due diligence within a reasonable time and with a gender-based perspective. The second one was the first time the Court recognized the occurrence of sexual slavery. It considered Venezuela internationally responsible for not having prevented the acts of torture and slavery against Ms. López Soto and for a discriminatory legal framework during the criminal proceedings against the aggressor.

During the public hearings of the Case of Barbosa de Souza and Others v. Brazil, a case decided in 2001 by the Inter-American Commission was constantly mentioned: Case 12.051, concerning Maria da Penha Maia Fernandes. Mrs. Maia Fernandes was a victim of two attempts of homicide practiced by her former spouse. Since the Judiciary was extremely inefficient in the criminal prosecution of the aggressor, the IACHR considered Brazil responsible for the violation of the right to a fair trial and the right to judicial protection. The Commission determined the adoption of administrative, legislative, and judicial measures to prevent tolerance and unwarranted delay in the investigation of acts of gender violence. As a response, the Brazilian State adopted one of the most emblematic legislations to combat domestic violence: the Maria da Penha Act (Act n. 11.340/2006). It was argued by the petitioners and the expert witnesses of the Case of Barbosa de Souza and Others v. Brazil that, although the legislation itself is a major advance, its implementation is still insufficient to prevent feminicides.

This brief mapping of cases shows that the subject of violence against women is recurrent in the Inter-American System. It is also a sign that the Court has already built consistent patterns of analysis and a robust set of remedies. In the present case, the Court will verify if the steps of the criminal prosecution of Mr. Pereira de Lima were taken according to the parameters developed in its case law, most likely in the abovementioned decisions. However, gender violence is not the only subject under scrutiny. Although Mr. Pereira de Lima committed the murder in a private capacity, its position as a political agent had an important effect: it conceded him immunity from persecution while he was in office. Parliamentary immunity is a brand new subject for the Inter-American Court.

When the murder of Ms. Barbosa de Souza took place, the Brazilian Constitution provided that a member of the Legislative branch could be a defendant in a criminal proceeding only if authorized by the respective Legislative House. The Court of Justice of the State of Paraíba had filed two requests before the Legislative Assembly, both of which were not granted. Consequently, as long as Mr. Pereira de Lima was a State Deputy, no criminal lawsuit was initiated.

In 2001, the Constitutional Amendment n. 35 was approved. It modified article 53 of theBrazilian Constitution to provide that a previous authorization from the Legislative House is no longer needed for the prosecution of a crime committed after the beginning of the political mandate. The procedural step that can be taken is the suspension of the lawsuit by the votes of the majority of the members of the Legislative House. In Brazil, the principle of symmetry determines a harmonic relation between the norms of the Federal Constitution and the ones of the State Constitutions. For this reason, the regime of parliamentary immunity of the Brazilian Constitution extends to the Constitution of the State of Paraíba.

The petitioners claim that the change in the Brazilian Constitution did not affect the case because the criminal proceeding was initiated against Mr. Pereira de Lima only after he was not re-elected for a term in office. By its turn, the Brazilian State sustains that the Constitutional Amendment is compatible with the Inter-American parameters of the right of access to justice and that the public authorities started the prosecution right after the Amendment came into force. In 2007, Mr. Pereira de Lima was convicted for the murder of Ms. Barbosa de Souza and condemned to a sentence of 16 years of imprisonment. Mr. Pereira de Lima did not serve any time of the sentence because he died from natural causes in 2008, the reason why the criminal liability was extinguished.

The Inter-American Court will have to deal with two main issues regarding parliamentary immunity. The first one is to analyze if the legal regime prior to the Constitutional Amendment was an obstacle to the access of justice for the family of Ms. Barbosa de Souza, especially considering that the Legislative Assembly did not authorize the criminal prosecution while Mr. Pereira de Lima was in office. The second one is the change brought by the Amendment. Is the current constitutional regime of parliamentary immunity compatible with the American Convention on Human Rights or will changes be necessary if Brazil is considered internationally responsible for the human rights violations?

The IACtHR has never delivered a judgment on this matter. On the other hand, the Council of Europe has defined that the objective of parliamentary immunity is to assure the independence of the Legislative House and protect it from external interferences. Immunity contributes to the autonomy of the legislature and the good functioning of democracy.

For the European Court of Human Rights (ECtHR or European Court), parliamentary immunity inevitably conflicts with the right to a fair trial, provided by article 6 of the European Convention on Human Rights. Therefore, immunity might observe the proportionality criteria. The European Court has decided that “where an alleged criminal act of a member is entirely unrelated to his parliamentary work, this act must in principle not be protected by immunity” (ECtHR, Syngelidis v. Greece, 2011).The view adopted by the European Court about immunity is strictly functional. The Inter-American Court will likely refer to the case law of the European Court, mainly because the regional human rights courts are in constant institutional and jurisprudential dialogues.

The judgment of Case of Barbosa de Souza and Others v. Brazil will be important for the development of the IACtHR’s jurisprudence regarding the State’s tolerance about violence against women, mainly when a feminicide takes place, as well as regarding the legal regime of parliamentary immunity. The publication of the sentence shall happen until the end of 2021 and will be followed by the monitoring compliance with the judgment stage.

Bruna Nowak

Master in Human Rights and Democracy and member of the Group of Studies on Systems of Human Rights of the Federal University of Paraná, Brazil. Coordinator of International Controversies on Human Rights of the Ministry of Human Rights, Brazil. DISCLAIMER: This article reflects the personal opinion of the author and does not represent the official view of the Brazilian State about the case.

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