BRAZIL - CASE 12.0001 MERITS

REPORT N° 66/06

CASE 12.001

MERITS

SIMONE ANDRÉ DINIZ

BRAZIL

October 21, 2006*

I. SUMMARY

1. On October 7 and 10, 1997, the Center for Justice and International Law (CEJIL), the Subcommittee on Blacks of the Human Rights Committee of the Ordem dos Advogados do Brasil (OAB/SP: Brazilian bar association), and the Instituto do Negro Padre Batista submitted to the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) a petition against the Federative Republic of Brazil (hereinafter “Brazil,” “the State,” or “the Brazilian State”). The petition alleged a violation of Articles 1, 8, 24, and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), and, in light of Article 29 of that same instrument, Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “the Racism Convention”), to the detriment of Ms. Simone André Diniz.

2. The petitioners alleged that the State did not guarantee the full exercise of the right to justice and due process of law, failed to pursue domestic remedies to look into the racial discrimination suffered by Ms. Simone André Diniz, and therefore breached its obligation to ensure the exercise of the rights provided for in the American Convention.

3. The State provided information alleging that the Judiciary had already handed down a ruling on the subject matter of this complaint, and that, according to the government, the case did not make out any human rights violation.

4. The Commission concludes that the State is responsible for the violation of the rights to equality before the law and judicial protection, and the right to a fair trial, enshrined respectively at Articles 24, 25, and 8 of the American Convention. The Commission also decides that the State breached its obligation to adopt provisions of domestic law in the terms of Article 2 of the American Convention, and also violated the obligation imposed by Article 1(1) to respect and ensure the rights enshrined in the Convention. Finally, the IACHR makes the relevant recommendations to the Brazilian State.

II. PROCESSING BEFORE THE COMMISSION AND FRIENDLY SETTLEMENT

5. On October 7 and 10, 1997, the IACHR received a complaint against the Brazilian State. On April 10, 1998, the IACHR notified the State and gave it 90 days to respond. On May 12, 1998, the State sent a note setting forth considerations on the case and undertaking to send pertinent information in due course. On October 2, 1998, the petitioners sent a fax requesting the inclusion of the Instituto do Negro Padre Batista as co-petitioner in the complaint. On November 3, 1998, the IACHR sent the Government a note in which it reiterated the request for information made April 10, 1998, and gave the State 30 days to answer. On December 9, 1998, the Brazilian Government submitted its observations on the complaint.

6. In 2002, the Commission published Admissibility Report No. 37/02, in which it determined that it was competent to analyze the merits issues.[1] On December 20, 2002, the petitioners requested an extension of the period for sending observations on the merits of the case. On January 6, 2003, the Commission gave the petitioners an additional two months to submit observations. On February 20, 2003, the petitioners requested a one-month extension of the deadline for submitting their observations.

7. On February 26, 2003, the Commission gave the petitioners a one-month extension, and at the same time sent the petitioners copies of the Government’s responses of May 12 and December 8, 1998. On May 5, the Commission acknowledged receipt of the observations sent by the petitioners on the merits of the case, on March 5 and April 5, 2003. On May 8, 2003, through a communication sent to both parties, the Commission placed itself at their disposal to pursue a friendly settlement; it set a deadline of 30 days for initiating that process. On May 14, 2003, the Commission gave the Brazilian government 60 days to send in its observations on the petitioners’ communication.

8. On July 14, 2003, the Brazilian State sent its observations; at the same time, it expressed interest in pursuing a friendly settlement. On July 16, 2003, the Commission set a deadline of 15 days for the petitioners to submit their observations. On August 15, 2003, the Commission acknowledged receipt of the petitioners’ submission expressing their interest in pursuing a friendly settlement, as proposed by the Brazilian State. On September 8, 2003, the IACHR sent the Brazilian State a copy of the submission sent by the petitioners and gave it 30 days to express its views.

9. On December 12, 2003, the Commission acknowledged receipt of a communication sent by the petitioners on November 7, 2003, by which they expressed that they were no longer interested in pursuing a friendly settlement, given the absence of any proposal by the State; at the same time, they asked the IACHR to approve a report on the merits. On December 12, 2003, the Commission forwarded to the State the petitioners’ communication of November 7. The Brazilian government, in a note of January 15, 2004, requested a hearing for the 119th session of the IACHR. In a note of January 29, 2004, the State requested that the case be removed from the hearings schedule. In a note of February 11, 2004, it asked that it be postponed until the 120th session of the Commission.

III. THE PARTIES’ POSITIONS

A. The petitioners’ position

10. The petitioners alleged in the first part that the Brazilian State violated the rights of Ms. Simone André Diniz provided for at Articles 1(1), 8, 24, and 25 of the American Convention, and, in light of Article 29 of that instrument, Articles 1, 2(a), 5(a)(I), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. In addition, the petitioners asked that Brazil be found responsible for violating the above-mentioned rights, and that the Commission recommend to the State that it proceed to investigate the facts, compensate the victim, and publicize the decision in the instant case so as to prevent future discrimination based on color or race.

11. According to the petitioners, on March 2, 1997, Ms. Aparecida Gisele Mota da Silva took out a classified ad in the newspaper A Folha de São Paulo, which enjoys wide circulation in the state of São Paulo, expressing her interest in hiring a domestic employee in which she indicated her preference for a white person.[2] Once she saw the ad, student and domestic employee Simone André Diniz called the number indicated, introducing herself as a candidate for the job. When she spoke with Maria Tereza, the person assigned by Ms. Mota da Silva to handle phone calls from applicants, she was asked about the color of her skin. When she answered that she was black, she was informed that she did not meet the requirements for the job.

12. The petitioners adduced that Ms. Simone Diniz denounced the racial discrimination suffered and the racist ad to the Subcommittee on Blacks of the Ordem dos Advogados do Brasil, São Paulo Section, and, accompanied by her attorney, reported the crime to the then-Police Unit for Race Crimes. On March 5, 1977, police inquiry was opened as number 10,541/97-4[3] to look into the violation of Article 20 of Law 7716/89, which defines the practice of race-based discrimination or prejudice as a crime.[4] The police office in charge of the inquiry took testimony from all the persons involved: the alleged perpetrator of the violation and her husband, the alleged victim and witness, and the woman who answered the phone call from Ms. Simone Diniz.

13. According to the petitioners, on March 19, 1997, the police officer prepared a report on the criminal complaint and sent it to the judge. The Public Ministry was informed of the inquiry – only the Public Ministry has standing to begin a public criminal action. The Public Ministry issued a statement on April 2, 1997, asking that the proceeding be archived, reasoning

... it was not possible to find in the record that Aparecida Gisele has engaged in any act that could constitute the crime of racism, provided for in Law 7,716/89...” and that there was “... no basis for the complaint” in the record.[5]

14. The petitioners reported that the judge handed down a judgment to archive on April 7, 1997, based on the reasons set forth by the member of the Public Ministry.[6]

15. The petitioners alleged that the police inquiry had indicia of sufficient and adequate evidence for the criminal complaint based on a violation of Article 20, header, of Law 7,716/89, as the perpetrator of the criminal offense and the fact that it happened were shown. In addition, they argued that the mere publication of the discriminatory ad already constituted a crime punishable under Article 20(2) of the same law, there being in these facts sufficient grounds for the Public Ministry to have initiated the criminal action.

16. Moreover, according to the petitioners, the Public Ministry would not have been able to base itself on the alleged fact, not proven, that Ms. Aparecida apparently had had a negative experience with a black employee who mistreated her children. These facts, according to the petitioners, did not authorize Ms. Aparecida to discriminate against another black domestic employee. The mere fact that she is married to a black man did not release her of liability or make her less guilty of the offense.

17. Finally, they adduced that “even though the Public Ministry gave its opinion in favor of archiving the police inquiry, the judge was not obligated to accept it. If he did so, it was because he too failed to act diligently to assess the facts.”

18. The petitioners alleged that the Brazilian State undertook to carry out the provisions of the Racism Convention and accordingly to “condemn racial discrimination” and “to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.” In addition, they reported that under the Racism Convention, Brazil undertook “to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law....” “The right to equal treatment before the tribunals and all other organs administering justice.”

19. In addition, they said that Brazil undertook to guarantee “everyone within its jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

20. The petitioners alleged that in the Brazilian system of criminal procedure, the judgment to archive a police inquiry is non-appealable, unless new facts arise that authorize and justify reopening the investigation. Still according to the petitioners, that decision kept Ms. Simone from proving before the criminal courts that Ms. Aparecida Gisele engaged in racial discrimination; and bringing a civil action for moral injury, which would have been possible had the perpetrator been convicted, was no longer an option. Those acts violated her right of access to justice. By the same token, Ms. Simone was denied the right to be treated equally before the courts, in relation to those victims whose accusations were being investigated and reported by the Public Ministry to determine responsibilities.

B. The State’s position

21. The State, in a brief dated May 12, 1998, indicated that it would forward any relevant information it received on the case in timely fashion. Even so, it declared that “a reading of the petition does not necessarily lead to the perception that in their communication to the Commission the petitioners have clearly established a foundation for the alleged violation of the American Convention on Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination.”

22. In effect, the Brazilian Government noted that “the ‘automatic’ processing of manifestly unfounded petitions could cause unnecessary discomfort, in addition to diverting the scant available material and human resources of the Commission and the member States to process petitions that should be declared inadmissible ab initio.”

23. In addition, the State recalled that “Article 47(c) of the American Convention on Human Rights, as well as Article 41(c) of the Commission’s Rules of Procedure determine that the Commission should declare inadmissible any petition which, based on the presentation by the petitioner or the State, is groundless or out of order. The principle of pro homine, which governs systems for the international protection of human rights – and according to which the States bear the burden of proof – only makes sense in a context of plausible and well-grounded allegations. Otherwise, there is a risk of undermining the system’s transparency and juridical security.”

24. The State insisted that the facts alleged in the instant case did not constitute a human rights violation. It said that “the police inquiry was conducted in keeping with Brazilian law and archived by the competent judicial authority based on the opinion of the Public Ministry after testimony was heard from the persons involved.”

25. In its response of July 14, 2003, in which it agreed to pursue a friendly settlement, the State reported that it intended to answer the allegations made by the petitioners in the course of pursuing a friendly settlement, whereupon it described how the promotion of racial equality has evolved in Brazil. In this context, it emphasized that:

The Brazilian Government does not deny the existence and scope of the racial problem in Brazil: both in internal discussions with interested sectors of civil society and in the reports submitted to international monitoring bodies, the Brazilian State recognizes the nature of the problem and has shown signs of its determination to overcome it, with the active collaboration of society.

IV. ANALYSIS OF THE MERITS

A. Facts established

26. From its analysis of the information and arguments available and pronouncements by the parties and documents attached, the Commission considers that the following facts have been established:

27. On March 2, 1997, Ms. Aparecida Gisele Mota da Silva published the following classified ad in the newspaper A Folha de São Paulo: “domestic (female). Home. Live_in. W/ exp. All routine, care for children, with documentation. And ref.; Pref. White, without children, single, over 21. Gisele”

28. Ms. Simone André Diniz, a black woman, in order to apply for the job advertised, called the phone number indicated in the ad, whereupon she was attended to by a woman who works with Aparecida Gisele Mota da Silva, by the name of Maria Tereza, who asked her the color of her skin. Upon answering that she was black, Simone André Diniz was informed that she did not meet the job requirements.

29. Ms. Simone André Diniz, feeling that she was the victim of racism based on the color of her skin, reported the incident with the Police Unit for Investigating Race Crimes, e?) on March 2, 1997.

30. The police inquiry was opened as number 10,541/97-4, to look into the crime of racism established at Article 20 of Law 7,716/89, which provided: “practice, induce or incite, by the mass media or by publication of any nature, discrimination or prejudice on the basis of race, color, ethnicity, religion, or national origin. Penalty: imprisonment of 2 to 5 years and fine.”

31. In the police inquiry, Simone André Diniz testified that she had learned of the ad when she sought employment through the classified ads in the newspaper A Folha de São Paulo. When she called the number indicated, she was rejected because she’s black, as indicated in her declaration, which states in part:

When questioned in the proper form, the victim testifies at folio 06 that she sought employment when a friend came across the ad – folio 04 of the record, showing indignation. That she telephoned the number in the ad, and it was when they asked her to indicate the color of her skin. That on answering black, the response was that she didn’t meet the requirements for the job.

32. Her colleague Paula Ribeiro da Silva testified in the record of the same police inquiry; she confirmed that both were seeking employment and that Simone called the number announced and that the person who received her call, first name Maria, said that black candidates could not apply to that job, as per her statement transcribed below:

“... that she was with her friend Simone, looking through the classifieds in the newspaper Folha de São Paulo when she saw an add for a Domestic employee, in which it said pref. White. That her friend called there, and was asked about the color of her skin, and once she said she was black, she heard that she did not meet the requirements for the job.[7]

33. Ms. Gisele Silva also testified, confirming that she had published an add saying that she was seeking a domestic employee, preferably white. She said that the preference was based on the fact of having had a black domestic employee who had mistreated her children.

34. Gisela Silva’s husband, Mr. Jorge Honório da Silva, also gave testimony confirming the statements made by his wife.

35. The final report of the policy inquiry was sent to the Public Ministry March 19, 1997.

36. On April 2, 1997, the Public Ministry of the state of São Paulo issued an opinion calling for the archiving of the case, for lack of foundation for making the complaint.

37. The Judge of the Department of Police Inquiries, on April 7,1997, received and adopted as his own rationale the pronouncement of the Public Ministry, and decided to archive the case.

A. Analysis of the International Responsibility of the State for the act of a

private person

38. The Commission would like initially to rule on the international responsibility of the Brazilian state in relation to the facts analyzed here.

39. In the international jurisdiction, the parties and the subject matter of the dispute are, by definition, different from those in the domestic jurisdiction.[8] Based on the case-law of the Inter-American Court,[9] in the instant case, the Commission has powers not to investigate and punish the individual conduct of private persons, but to establish the international responsibility of the State for violating the rights enshrined in Articles 8(1), 24, and 25 of the American Convention.

40. As this same Court has emphasized,[10] the aim of international human rights law is to give the individual means of protection of the human rights recognized internationally vis-a-vis the state, and all those who act in its name. It is a basic principle of international human rights law that every state is internationally responsible for each and every act or omission of any of the branches of government or entities in violation of internationally recognized rights.

41. One must bear in mind that there is an obligation to respect human rights as between private persons. The Inter-American Court, from the first contentious cases it decided, has been describing the application of the effects of the American Convention to third persons (erga omnes), having noted that:

Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.[11]

42. The Court also made clear this obligation of respect and guarantee of human rights vis-a-vis third persons was also based on the notion that the states determine their own internal legal order, which regulates relationships as among private persons, and, therefore, private law, which they must also uphold, to ensure that human rights are respected in those relationships with third persons, for otherwise the State may become responsible for the violation of rights.[12]

43. Therefore, even though the instant case deals with a relationship between private persons – in this case, Simone André Diniz and Aparecida Gisele Mota da Silva – the Brazilian State is under an obligation to ensure that in that relationship the human rights of the parties are respected, so as to prevent the occurrence of a violation, and, in the event of a violation, to diligently investigate, prosecute, and punish the violator, in the terms required by the American Convention.

B. Analysis of the Right to Equality before the Law and Non-Discrimination

1. Brief summary of the racial situation in Brazil

44. The Commission would like to begin by citing its own conclusions with respect to the situation of Afro-Brazilians, which it took stock during its on-site visit to Brazil in 1995. In the course of that visit, the Commission was informed that in Brazil, in general, Afro-Brazilians are in a vulnerable situation as subjects of human rights, and particularly is situated differently in terms of power as compared to the white population. To this day differences persist such even a minimum standard of equality has been attained; in many cases this discrimination translates into patterns in which human rights are undermined, especially the rights to equality, non-discrimination, and dignity.[13]

45. In the persistent context of profound structural inequality that affects Afro-Brazilians,[14] research by the IPEA has shown the over-representation of poverty among Brazilian blacks, to an extent that has remained stable over time.[15] According to the research, in 1999 blacks accounted for 45% of the population of Brazil, yet they accounted for 64% of the poor and 68% of the indigent population. As the research study concluded, “being born black in Brazil is related to a greater likelihood of growing up poor.”

46. In the area of education, in all regions of Brazil illiteracy among blacks is much higher than among whites.[16] According to IBGE data from 1999, 21% of the Afrodescendant population was illiterate, compared to 8% for the white population. Nonetheless, 22.7% of whites and 41% of Afrodescendants are functionally illiterate in Brazil, functional literacy being defined by UNESCO as a mastery of reading writing, math, and science equivalent to at least a fourth-grade education.

47. Data on infant mortality show that for every 1,000 black or mixed (mestiço) children 62 die before their first birthday, whereas mortality for white children was 37 of 1,000.[17]

48. Research on the Brazilian criminal justice system[18] describes the differential access of whites and blacks to the criminal justice system. In the city of São Paulo, which in 1980 had a population that was 72.1% white and 24.6% black (pretos and pardos), a larger percentage of black defendants were convicted (68.8%) than white defendants (59.4%) when charged with the same crime. And a larger proportion of whites were acquitted than blacks, 37.5% compared to 31.2%, respectively.

49. Similarly, blacks are convicted of crime at a much greater rate than their share of the population in the municipality of São Paulo. This is not so in the case of whites facing criminal charges. The proportion of whites convicted of crime is less than their share of the same population. The research study concluded that this context “suggests a certain ‘elective affinity’ between race and punishment.”

50. In addition, police violence in Brazil disproportionately victimizes pretos and pardos. The Commission learned that in Brazil[19] racial profiling leads to a large number of illegal detentions, and that the black population is more closely watched and more frequently approached by the police; this issue is the subject of a recommendation by the Commission in its he general report on Brazil, and in a report on the merits.[20]

51. In effect, according to another survey,[21] “in Rio de Janeiro, the profile of most of the children and youths assassinated, of a total of 265 investigations, is poor, male, black and mulatto.” In another study conducted by ISER,[22] it was shown that “the influence of race on the use of lethal police force may be the source of more serious human rights violations in Brazil.”

52. After evaluating more than 1,000 homicides committed by the police of Rio de Janeiro from 1993 to 1996, the report concluded that race is a factor that influences the police – consciously or unconsciously – when they shoot to kill. The darker the person’s skin, the more susceptible he or she is to becoming a victim of lethal police violence.” It concluded saying that police violence is discriminatory, as it affects blacks in greater numbers and with greater violence. In effect, in its report to the CERD the Brazilian government recognized the lethal nature of police action in Brazil when the victim was not white.[23]

53. Inequality in the labor market also affects the Afro-Brazilian population. Sociologists consider employment as the best indicator of social analysis. According to Telles,[24] through employment analysis, racial inequality is seen in terms of the advantage or disadvantage of one group over another across an array of different occupations.

54. According to research by INSPIR,[25] which collected information on workers’ wages in six metropolitan areas of Brazil, the wages of black workers are below those of non-black workers across the board. According to the research, this is the result of a combination of factors, such as early entry to the labor market, placement of black workers in the less dynamic sectors of the economy, disproportionate numbers of blacks employed in relatively unskilled informal positions.

55. Research by IBGE done in 1999 showed that 5.7% of the employed white population were employers, as compared to 1.3% for blacks and 2.1% for mestiços. In addition, 5.7% of the employed white population were domestic employees, compared to 13.4% for blacks and 8.4% for mestiços.[26]

56. In another research project on discrimination in the labor market, two aspects stand out:[27] (1) racial discrimination was a permanent and daily practice that guaranteed economic and symbolic privileges for white workers, and (2) integration at the workplace was not hindered by blacks, but by whites who blocked blacks’ entry to and mobility in the labor market.

57. Regarding discrimination in recruitment, the same research project found that “the discrimination was described in personnel recruitment and selection in all types of work, be it for domestic, general services, or professional workers. Testimony taken during the research project indicated that racial identity was evaluated in hiring, even though it was not an official practice.”

58. To illustrate, in two complaints of racial discrimination in recruitment, through help-wanted ads published in the newspaper A Folha de São Paulo, the public prosecutor asked that the inquires be archived. The first case involved an ad for an administrative assistant who was an “well-groomed blond or Japanese woman [loura ou japonesa, com boa aparência].” The parties involved denied responsibility for the ad; this argument was accepted by the Public Ministry. The second case sought a waiter who was “experienced and white.” Here the Public Ministry established that the ad was discriminatory but did not determine who was responsible for it, which explains why it was archived.[28]

59. In another case of discrimination in recruitment, also in São Paulo 1994, the ad placed in the newspaper sought an attorney who was “highly presentable” (“boa apresenatação”). The investigation was not able to identify the individual at the law firm who had the ad placed. In addition, the firm argued that since it did not hire any attorney who answered the ad, it had not committed any crime. This is why the Public Ministry suggested archiving the matter.

2. Evolution of the Legal Framework for Fighting Racism in Brazil

60. The Commission knows that the vulnerability of Afro-Brazilians has a historical dimension that persists due to situations such as what happened, for example, to Simone André Diniz, and which lead to the differences in access to basic rights, such as, for example, access to justice, education, work, etc.

61. The Commission recognizes that Brazil, mindful of that reality and in keeping with international treaties on the subject,[29] has put in place a legal order for protection from and guarantees against racial prejudice and discrimination, such as criminalizing such conduct.[30]

62. In the second half of the 20th century the Brazilian government promulgated Law No. 1390/51, known as the Afonso Arinos Law, which criminalized the practice of prejudice based on color or race as a misdemeanor, punishable by imprisonment (up to one year) and a fine.

63. Even though it was the first statute to criminalize racism, according to scholars,[31] that law had a merely symbolic effect, since it dealt with the problem as a misdemeanor, with limited penalties that did not deter its practice. In addition, in its almost 38 years on the books it was practically a dead letter; its inapplicability stemmed not from the lack of specific cases of racism, or the refusal of potential victims to report cases, but mainly from the technical flaws of the law itself, which, through a purportedly complete listing of the conduct covered, did not encompass the full array of different forms of racist conduct.[32]

64. Finally, defining practices arising from prejudice based on race or color as a misdemeanor (contravenção) limited the scope of the law, as it covered only those acts that it limited, explicitly curtailing the right of a citizen to recur to the justice system on grounds of color- or race-based prejudice.

65. In addition, at that time, when cases of racism came up the courts would generally re-characterize them as misunderstandings.

66. To illustrate this assertion, we note a judgment of the Court of Appeals of São Paulo, which acquitted a defendant accused of having prohibited a black student from entering a club, arguing that his conduct did not make out a violation of the law, but instead was simply a misunderstanding between him and the club’s directors.[33] According to the decision, it was a question of an individual unknown in the city who did not identify himself right away as part of a student caravan. At issue was the interpretation of Article 4 of Law 1390/51, concerning the refusal, due to prejudice based on race or color, to allow someone to enter a public establishment for entertainment or sports.

67. Later, the 1988 Constitution distinguished this crime in one’s own establishment among the individual and collective rights and duties, under the title dedicated to fundamental rights and guarantees, Article 5(XLII), where racism went from being considered a crime and, due to its seriousness, was non-bailable (the criminal could not benefit from a reduction of imprisonment to a lesser measure) and imprescriptible (the state is not limited by the passage of time in its ability to prosecute the perpetrator of the crime), subject to a prison sentence. At Article 4(VIII) of its Constitution, Brazil also repudiated terrorism and racism as a principle governing its international relations.

68. As a result of this constitutional status of the prohibition on racism, Law 7716/89 was adopted,[34] regulating and defining crimes resulting from prejudice based on race and color. This law was later amended by laws 8081/90, 8882/94, and 9459/97, which expanded its purpose, refining some articles and suppressing others, and including the punishment of crimes resulting from discrimination or prejudice on grounds of ethnicity, religion, or national origin.

69. Law 9459/97, in particular, modified Article 20 of Law 7716/89 to make it a crime to practice, induce, or incite discrimination or prejudice, and further determining that such conduct, using the mass media, would aggravate the crime. In addition, it modified Article 140 of the Criminal Code to include the criminal conduct of injuria racista, or racist defamation or actionable words, punishing such cases of injuria that entail the use of elements referring to race, color, ethnicity, religion, or origin.

3. Problems Enforcing the Anti-Racism Law in Brazil

70. Notwithstanding the evolution of the criminal law framework for fighting racial discrimination in Brazil, the Commission is aware that impunity is still prevalent in race crimes. When it published its report on the human rights situation in Brazil, the Commission called attention to the difficult enforcement of Law 7716/89, and to the way in which the Brazilian judiciary tended to be permissive with the practice of racial discrimination; it was very rare for a white person to be convicted of discrimination.[35] In effect, if one analyzes racism based on what’s happening in the courts, one might get the false impression that discriminatory practices are not to be found in Brazil.

71. In addition, the Committee that oversees the UN Racism Convention, in its final observations on the report submitted by Brazil, made clear its concern over the widespread occurrence of discriminatory offenses and the failure to enforce domestic legislation put in place to fight race crimes.

72. On that occasion, the Committee recommended to the Brazilian State that it collect statistical data on investigations opened and sanctions imposed and it recommended that the government improve training and awareness-raising programs regarding the existence of and approaches to race crimes for persons involved in the administration of justice, including judges, prosecutors, attorneys, and police.[36]

73. The petitioners note that most reports of racial prejudice and discrimination do not result in criminal proceedings, and of the few that do, very few perpetrators of such crimes are convicted.

74. Even in the case of São Paulo, where there was a police unit for race crimes, not all the crimes were investigated, nor were all the complaints processed. In practice, the lack of a diligent, impartial, and effective investigation, the prosecutor’s discretion when it comes to handing down indictments, and the definition of the crime, which requires that the perpetrator, after engaging in a discriminatory act, expressly state that his or her conduct was motivated by racial discrimination, are factors that contribute to the denial of justice in race crimes and impunity.

75. In another research study, of 300 incident reports analyzed from 1951 to 1997, in the cities of Rio de Janeiro, São Paulo, Salvador, and Porto Alegre, only 150 were considered a crime by the police officers, so as to warrant a police inquiry. Of these 150 situations, in only 40 were criminal charges brought by the Public Ministry against the person discriminating. And of these only nine – five in São Paulo and four in Rio Grande do Sul – went as far as a verdict.[37]

76. According to Telles, impunity in cases of racism reflects the weakness of the specific legislation, the ineffectiveness of the criminal justice system in Brazil, and the ill-will of the representatives of the justice system when it comes to analyzing them.

First, when it comes to convicting someone of racism, Brazil’s anti-racism laws require that the accused have acted with racist intent. In addition, the courts show a lack of seriousness when it comes to dealing with this type of crime. Judges avoid imposing the stiff sentences established by the Constitution on those convicted of racism. Judges and prosecutors, as well as all other members of Brazilian society, see alleged incidents of racism as harmless, and are not willing to put the offenders behind bars for a type of conduct that is common in Brazilian society.[38]

77. Since late 1995 the Commission has received information describing the ineffectiveness of the anti-racism law in Brazil, given its brevity, which revealed a segregationism that did not reflect racism in Brazil, and the reluctance of members of the judiciary to enforce it. According to that information, the Commission can identify at least three causes of the ineffective enforcement of Law 7716/89 in Brazil, which it will now do.

Need to prove racial hatred or intent to discriminate

78. The Commission concluded that Law 7716 “made little progress if any on the racial discrimination front since it was excessively ambiguous and superficial, requiring that for an act of racial discrimination to occur the individual who committed the act to state expressly that his conduct was motivated for reasons of racial discrimination.”[39] If it did not do so, it would be his word against that of the person who suffered the discrimination.

79. Racusen[40] systematically examined several complaints of racism and racial discrimination in Brazil, and, according to him, Brazilian judges require direct evidence of the unequal treatment in which the discriminatory act not only offends someone based on his or her race, but also demonstrates the discriminatory motive. Accordingly, in a possible criminal action, most of the judges need to confirm three things: (1) direct evidence of the discriminatory act, (2) direct evidence of the discrimination by the offending party against the offended party, and (3) evidence of the relationship of causality between the two.

80. In Racusen’s view, the requirement that all those elements be present to prove a racist act is a very high “evidentiary” standard that is difficult to attain. Accordingly, an offender would be able to reply to any of those three elements by responding that he is not prejudiced, does not have a prejudiced view of the offended person, or that such a view did not constitute a motive. Instead of inferring causality from the chronological order in which the events unfolded, or logic, Brazilian judges generally examine the discriminatory comment by the offender narrowly, requiring direct evidence of causality.

81. Placing that legal practice in context, he found that Law 7716/89 inherited from the Afonso Arinos Law the concept of racial discrimination as a “prejudice based on race or color” that requires, in order to prove it, the explicit practice of racism and the intent on the part of the offending party to discriminate against the victim.[41]

82. Still according to Racusen,[42] the law defines prejudice. Brazilians at times used the terms “prejudice,” “discrimination,” “racism,” and “inequality” interchangeably. Prejudice has many meanings in Brazil: hatred, intolerance, pre-conceived notions about a person, and verbal deprecation. The expression of hatred, as an explicit crime of hatred of groups, of Nazi inspiration, is the easiest form of prejudice analyzed by the courts. But the notion of prejudice also refers to veiled mistreatment by a perpetrator who acts on the basis of pre-conceived notions, which is a very different kind of prejudice and one that Brazilian courts have a hard time grasping.

83. The standard applied by the Brazilian judiciary even led the Brazilian government to assert before the CERD that there are decisions that do not punish racial discrimination because of the insufficiency of evidence or malicious fraud, which is considered a subjective element of the crime. Finally, it requires that “racial hatred” be proven, which is hard to do.[43]

Institutional Racism

84. The Commission is aware that institutional racism is an obstacle to the applicability of the anti-racism law in Brazil. “From the stage of testimonial evidence, to the police inquiry, and the decision of the judiciary, there is prejudice against blacks. The three levels are incapable of recognizing racism against blacks.”[44]

85. According to the petitioners, this unequal treatment accorded race crimes in Brazil, whether in the investigative or judicial phase, reflects the distinction with which police and justice officers treat complaints of racial discrimination: Most of the time when they receive such complaints, they argue failure to describe all the elements of the crime, and difficulty proving discriminatory intent (as the perpetrator denies that he or she wanted to discriminate against the victim) as reasons not to process the complaint.

86. An effort is also made to downplay the attitude of the aggressor, making it appear that it was nothing more than a misunderstanding. Rarely are cases reported, and of these, most get bogged down in the police unit, where the officers minimize the action of the offending party, characterizing the underlying incident as just a joke, or a misunderstanding. Of the complaints that reach the inquiry stage, many are downgraded to mere injuria.[45]

87. This practice has the effect of indirect discrimination, to the extent that it stands in the way of the right of a black citizen to be free from discrimination, and the enjoyment and that same citizen’s exercise of the right to accede to justice to have the violation remedied. In addition, it has a negative impact on the Afrodescendant population in general. That was precisely what happened to Simone André Diniz, when she sought judicial protection to have the violation of which she was the victim remedied.

88. According to Telles,[46] conscious and explicit racism, in the form of racial insults, despite being reprehensible, plays a lesser role in maintaining racial inequality than the subtle individual and institutional practices commonly characterized as “institutional racism.” According to the same author, in Brazil these practices derive from thinking by which the racial hierarchy is part of the natural order, and likely causes more harm than the less common and more widely disseminated racial insults.

Downgrading of Racism to Generic or Racist Injuria

89. The perpetrator of injuria racista in Brazil enjoys impunity in most cases. According to attorneys of Afro-Brazilian organizations, the fact that insulto racial is not covered by Law 7716/89 creates a hindrance to the administration of justice, as injuria, according to the Brazilian Criminal Code, is a crime of private action, and so opening an investigation depends on the initiative of the victim. Yet most victims of racism in Brazil are poor and have no way to hire an attorney.[47]

90. According to Racusen,[48] from1993 to 1995, the Specialized Police Unit for Race Crimes in São Paulo classified as crimes of injuria 75% of the complaints it took in; only 18% were classified under Law 7716. Of the allegations categorized as injuria, 20% were investigated and 3% resulted in judicial proceedings. According to Racusen, an allegation of injuria was nine times more unlikely to reach a Brazilian court than one classified as racial discrimination.

91. The organization CEAP reported that most of the complaints of racial discrimination it received in the city of Rio de Janeiro were classified as injuria.[49]

92. The reasons set forth above, which serve as a filter for channeling racism complaints either through Law 7716/89 or through Article 40 of the Criminal Code, led the Brazilian government to inform the CERD that Brazilian case-law is inconsistent and mixed on the question of racial discrimination.[50] In effect, there are decisions that do not punish racial discrimination based on the lack or insufficiency of evidence of malicious deceit (fraude maliciosa), which is considered a subjective element of the crime. The last point requires that “racial hatred” be proven, a difficult task.

93. As regards downgrading of racial discrimination to injuria racista, the Brazilian government, in its report to the CERD, informed its members that:

Despite the fact that Law No. 7716/89, in criminalizing acts arising from prejudice based on race or colour, represented a clear step forward, one of the major criticisms of the text centred on the fact that it did not include, within the definition of those acts considered criminal, crimes involving defamation of a discriminatory nature. In not addressing, within Law No. 7716/89, defamatory acts founded in racial discrimination (name_calling, denigrating acts, verbal abuse), these were ultimately legally classified, not as racism, but as defamation in the generic sense (e.g. insult, libel). However, while racism is punishable by a prison term of one to five years, libel is punishable by a prison term of six months. In addition, defamatory crimes are only prosecuted by means of private criminal actions (whose statutes of limitation expire in six months), while crimes of racism are prosecuted by means of public criminal actions. As to prescription, while racism is imprescriptible, crimes of defamation are prescribable within a short period of time (two years in the case of libel or slander).[51]

94. Even with the subsequent creation of the crime of injuria racista,[52] which is associated with elements such as race, color, ethnicity, religion, or origin, the government goes further and notes that even though the law has drawn a distinction between generic injuria and cases of injuria based on discrimination (on grounds of race, color, origin, ethnicity, or religion), assigning it a more severe penalty, that law is weaker than the treatment prescribed for the crimes of racism prohibited by Law 7716/89. Moreover, when a particular type of conduct is reduced from racism to defamation, the victim is forced to bring an action within the short term of the remaining six months, as it is a crime that can be prosecuted only by private action. As a result the crime goes unpunished.[53]

4. Violation of the Right of Simone André Diniz to Equality and Non-discrimination

95. According to the petitioners, the archiving of the complaint lodged by Simone André Diniz represents a general situation of inequality in access to justice and impunity when it comes to reporting racially-motivated crimes. In effect, that situation revealed the ineffectiveness of Law 7716/89, as it was not enforced by the Brazilian authorities, giving rise to a situation of unequal access to justice for victims of racial prejudice and racism.

96. These factors, according to the petitioners, and the information shown above, have resulted in the suspension of investigations, partial investigations, and the archiving of inquiries for alleged lack of foundation for presenting the complaint.