Return

concerning violence against women

the case of Maria da Penha

The Center for Justice and International Law (CEJIL), the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) and the AGENDE – Action in Gender Citizenship and Development offer – in the context of the presentation of the Brazilian National Report to the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) - information on the lack of compliance by Brazil of its international obligations related to the prevention and eradication of violence against women.

The present document intents to provide additional information to the alternative report of civil society to the CEDAW, "Brazil and the Convention on the Elimination of All Forms of Discrimination Against Women. Paper of the Brazilian Women’s Movement Regarding the Brazilian State’s Compliance with CEDAW: Proposals and Recommendations", elaborated by significant networks and articulations of Brazilian women, entities and persons. This document further seeks to attract attention of the CEDAW Committee respect to the lack of implementation by the Brazilian State of the clauses related to the prevention and eradication of violence against women.

In April of 2001, the Inter-American Commission of Human Rights (IACHR) of the Organization of American States published the Report Nr. 54/01 (annex) in the case N. 12.051 (Maria da Penha vs. Brazil), in which declared the international responsibility of the Brazilian state for the violation of the articles 8, 25 e 1.1 of the American Convention of Human Rights and article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belém do Pará Convention).

The decision of the IACHR was emitted in the landmark of an individual complaint on the human rights violation to the victim Maria da Penha. In 1983, her husband tried to kill her by shooting on her shoulders while she was sleeping, inflicting on her an irreversible paraplegia. For more than 15 years the Brazilian state did not conclude the investigation and punishment of the aggressor.

In its decision, the IACHR established that the case was part of "a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors", considering that not only there was a "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, according to the IACHR, "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".

Regarding those violations, the IACHR declared, therefore, the responsibility of the Brazilian state for negligence, omission and tolerance related to domestic violence against women in the country. In this sense, it also recommended the integral reparation for the violations including not only economic reparations, but also, and mainly, the adoption of measures and implementation of public policies as a "guarantee of no repetition" of the corroborated violations in the case, and in order to avoid the state tolerance and the discriminatory treatment respect to the domestic violence against women in Brazil.

After more than two years, the Brazilian state has not yet accomplished with the decision pronounced by the Commission in relation to the case, having given attention to merely – and only – one of the established recommendations, leaving off implementing all the rest of the recommendations. Even so, Brazil only addressed attention to that recommendation as a result of international pressure carried out by the IACHR, through the demands of the petitioner organizations.

The lack of compliance with the recommendations contained in the decision of the IACHR violates the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), specially in its articles 1^º 2^º, 15 e 16, as well the General Recommendation No. 19 of the CEDAW Committee, while it leaves off implementing measures designed to prevent and eradicate the violence against women, as well as repairing integrally the damages caused.

That being so, the signatory organizations of the present document request to the Committee that, in its evaluation of the advancement of Brazil on the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women, expresses its deep concern and recommends to the State the adoption of adequate measures for the integral reparation of the rights violated, in special, those referent to the implementation of the measures of prevention and guarantee of no repetition established in the decision of the Case 12.051 IACHR, OAS.

On May 29, 1983, Maria da Penha Maia Fernandes, Brazilian by nationality, was victim in her house, in Fortaleza, State of Ceará, of an attempt of murder by Marco Antonio Heredia Viveiros, who was her husband at that time. He shot her on her shoulders while she was sleeping, provoking her an irreversible paraplegia.

The criminal proceeding against the aggressor took 8 years for reaching a decision of the Jury which, on the 4^th. of May of 1991, condemned the aggressor to 15 years in prison, reduced to 10 due to the fact of not being previously condemned. The defense presented an appeal against the decision of the Jury. On the 15^th. of March of 1996, a second trial was held, in which the aggressor was condemned to 10 years and 6 months in prison. A new appeal was presented by the defense and, since then, successive appeals were presented.

Due to the delay of the judicial system it was not possible to obtain a final decision on this crime. When the petition was brought before the IACHR, the Brazilian justice had spent more than 15 years without reaching a final sentence against the ex-husband of Maria da Penha, in a demonstration of the tolerance with that the State treats these serious situations.

The case of Maria da Penha, unfortunately, was – and still is – an example of the systematic pattern of impunity regarding domestic violence against women in Brasil.

This systematic pattern of impunity is especially due to the lack of pledge of the State in acting due diligence to prevent, investigate and punish violence against women; establishing fair and effective legal procedures which includes timely hearing and effective access to such procedures, as well as establishing legal and administrative mechanisms to ensure an effective access to restitution, reparations or other just and effective remedies.

It would not represent, therefore, the case, an isolated situation in the country, in view of which CEJIL, CLADEM and the victim, Maria da Penha, presented individual complaint before the Inter American Commission of Human Rights (OAS).

Based on the examination of the admissibility and merit of the case, the Commission published the Report No. 54, in April of 2001, with the following conclusions (paragraph 60) and recommendations (paragraph 61) to the Brazilian state (Case 12.051, annex and available in the sites www.oas.org or www.cladem.org or www.cejil.org):

The extreme relevance of this case surpasses the interest of the victim Maria da Penha, extending its importance to all Brazilian women.

And this is because, besides of having declared the responsibility of the Brazilian state for negligence, omission and tolerance regarding to the domestic violence against women, recommending the adoption of measures related to the individual case (paragraph 61, items 1, 2 e 3) – including establishing the payment of an indemnification to the victim – the Commission recommended also to the state the adoption of public policies measures in order to avoid the state tolerance and the discriminatory treatment regarding to the domestic violence against women in Brazil (paragraph 61, item 4 a, b, c, d, e).

This was the first case in which the Belém do Pará Convention was applied by an international human rights body, in a decision in which a country is declared responsible in matter of domestic violence.

The case of Maria da Penha, therefore, became an emblematic case by ascertaining the systematic pattern of domestic violence against women and establishing the state responsibility at international levels due the ineffectiveness of the judicial system at national level.

After more than two years, the Brazilian state has not yet accomplished with the decision pronounced in 2001 by the IACHR in relation to the case, having given attention to merely – and only – one of the established recommendations (conclusion of the process at national level and the imprisonment of the aggressor 19 years after the crime), leaving off implementing all the rest of recommendations.

Even so, Brazil only addressed attention to that recommendation as a result of international pressure carried out by the IACHR, through the demands of the petitioner organizations.1

On what was no accomplished

We understand that the lack of compliance - or even the partial and insufficient compliance – with the recommendations of reparation emitted in the case reveals a persistent violation of the Brazilian state to the human rights not only of the victim Maria da Penha in this concrete case, but also of all Brazilian women that are found in domestic violence situation and demonstrates the lack of commitment of the state with thousands of women in similar situation.

In this sense, also, the Feminist Political Platform, approved at the National Conference of Brazilian Women, on the 06^th. and 07^th. of June of 2002, Brasília, DF, in its paragraph 200, expresses the claim of Brazilian women by "demanding of the State the accomplishment of the decisions and recommendations of the International Courts and other national and international, in cases of women’s human rights violations, in a way to give effectiveness to the compliance of international treaties and conventions, specially the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women..."

At least, the facts exposed reveal a violation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), specially in its articles 1^º 2^º, 15 e 16, as ell the General Recommendation No. 19 of CEDAW Committee.

The case of Maria da Penha, therefore, illustrates clearly that the Brazilian state has not accomplished in an effective way with its international obligations regarding the women’s human rights violations in the country, violating the Convention on the Elimination of All Forms of Discrimination Against Women and other international treaties of human rights.

Then, we request to the Committee to take into account all the presented information at the moment of examining the advancement of the Brazilian state on the compliance of the Convention.

NOTES:

Search Inner