Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Domestic violence, intimate partner violence
Inter-American Commission on Human Rights
Women’s access to justice is paramount to protecting their human rights and fundamental freedoms and promoting respect for the rule of law. It is not enough for states to have laws in place – they must also be enforced and upheld. This includes investigating and prosecuting complaints of violence against women and protecting women known to be at risk, as well as providing reparations to survivors in a timely manner.
Maria da Penha Maia Fernandes was asleep in her home when her husband, Marco Antonio Heredia Viveiros (M.V.), shot her in the head. After enduring years of domestic violence, she was left paralyzed from the waist down and suffering from severe physical and psychological trauma. After surviving the attempt on her life and undergoing numerous surgeries, Maria returned home. Two week later, M.V. tried to electrocute her while she was bathing.
Following the attack, Brazilian police began an investigation. Statements were taken, indicating M.V. had committed the assault. A later analysis showed that M.V. was the owner of the firearm that shot Maria.
Maria tried to access justice through Brazilian courts, but although the shooting occurred in 1983, charges would not be brought against M.V. until 1985 and the first trial would not begin until 1991. For 15 years, Maria’s case remained in the Brazilian justice system, and M.V. remained free. With the help of the Center for Justice and International Law (CEJILJ) and the Latin American and Caribbean Committee for the Defence of Women’s Rights (CLADEM), Maria brought her case to the Inter-American Commission on Human Rights.
What was the decision?
“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… 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.” (para. 55).
The Commission decided that Brazil had failed to meet its human rights obligations and was responsible for the human rights violations Maria suffered. Specifically:
- American Declaration on the Rights and Duties of man
- Article 2: Right to equal protection under the law without discrimination
- Article 18: Right to Justice
- American Convention on Human Rights
- Article 1: Obligation to Respect Rights
- Article 8: Right to a Fair Trial
- Article 25: Right to Judicial Protection
- Convention on the Prevention, Punishment and Eradication of Violence against Women (“Belem do Para Convention”)
- Article 7: States’ obligation to prevent, punish and eradicate VAW
The Commission recognised the multiple layers of discrimination and ineffective state action present in Maria’s case. By the time the Commission had reached its decision, 17 years had passed since Maria first brought her case to domestic courts. Brazil had failed to honour its obligation to guarantee Maria access to judicial remedies and to have her case heard by a competent authority. Allowing M.V. to remain free amounted to impunity for the violations committed. Without a final decision, a just punishment could not be delivered and Maria could not be compensated for her suffering. The Commission noted that the failure in Maria’s case was symbolic of the widespread ineffectiveness of the Brazilian court system. One report submitted to the Commission indicated that 70% of criminal complaints relating to domestic violence were held without any conclusion ever being reached.
During the trial, Brazil cited measures it had taken to address gender-based violence, including the establishment of specialised police stations to handle complaints, and shelters for survivors. These measures stood in sharp contrast to the widespread and escalating perpetration of violence against women. The Commission noted that only 1% of criminal complaints reported to specialised police stations were actually investigated, and only 2% of all criminal complaints for domestic violence against women resulted in conviction of the perpetrator. In light of Maria’s case and evidence of the wider situation of women’s human rights in Brazil, the Commission determined that the measures it implemented to address the violation had “not had any effect whatsoever” (para. 50). It was apparent that the mere existence of laws was not sufficient to satisfy Brazil’s human rights obligations and guarantee protection on the ground.
Furthermore, the Commission noted that Brazil’s widespread failures reflected a general pattern of negligence and lack of effective action in prosecuting and punishing perpetrators of gender-based violence. Ineffective judicial action, impunity and the consequent denial of reparations for survivors were only a few examples of Brazil’s lack of commitment to effectively address violence against women. And, given the gender-based nature of these violations, Brazil’s failures could also be considered discriminatory, contributing to “…a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of society, to take effective action to sanction such acts” (para. 56). Widespread tolerance of gender-based violence was a direct violation of the state’s obligations to prevent, punish and eliminate all forms of VAW.
The Commission concluded Brazil had violated its duties under Article 7 of the Belém do Pará Convention and Articles 8 and 25 of the American Convention (in relation to Articles II and XVIII of the American Declaration) in two respects:
- The ineffectiveness of Brazil’s action to address VAW meant it had failed to guarantee these rights (Article 1(1) of the American Convention) through positive measures
- Brazil’s systemic failure to investigate and punish domestic violence reflected a pattern of state tolerance for acts of gender-based violence suffered by women
For these reasons, the Commission recommended Brazil (para. 61):
- Complete, rapidly and effectively, criminal proceedings against the person responsible for the assault and attempted murder of Maria da Penha Fernandes Maia.
- In addition, conduct a serious, impartial, and exhaustive investigation to determine responsibility for the irregularities or unwarranted delays that prevented rapid and effective prosecution of the perpetrator, and implement the appropriate administrative, legislative, and judicial measures.
- Adopt, without prejudice to possible civil proceedings against the perpetrator, the measures necessary for the State to grant the victim appropriate symbolic and actual compensation for the violence established herein, in particular for its failure to provide rapid and effective remedies, for the impunity that has surrounded the case for more than 15 years, and for making it impossible, as a result of that delay, to institute timely proceedings for redress and compensation in the civil sphere.
- Continue and expand the reform process that will put an end to the condoning by the State of domestic violence against women in Brazil and discrimination in the handling thereof. In particular:
- Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
- The simplification of criminal judicial proceedings so that the time taken for proceedings can be reduced, without affecting the rights and guarantees related to due process.
- The establishment of mechanisms that serve as alternatives to judicial mechanisms, which resolve domestic conflict in a prompt and effective manner and create awareness regarding its serious nature and associated criminal consequences.
- An increase in the number of special police stations to address the rights of women and to provide them with the special resources needed for the effective processing and investigation of all complaints related to domestic violence, as well as resources and assistance from the Office of the Public Prosecutor in preparing their judicial reports.
- The inclusion in teaching curriculums of units aimed at providing an understanding of the importance of respecting women and their rights recognized in the Convention of Belém do Pará, as well as the handling of domestic conflict.
- The provision of information to the Inter-American Commission on Human Rights within sixty days of transmission of this report to the State, and of a report on steps taken to implement these recommendations, for the purposes set forth in Article 51 (1) of the American Convention.
Learning from other institutions
Throughout the text of the case document, Maria’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
Maria Da Penha Maia Fernandes v. Brazil (2001) is considered a landmark case on violence against women for more than one reason. Not only was it the first time the Commission heard a case related to domestic violence, it was the first time it had found a state in violation of a woman’s rights for failing to take action to address it. Maria’s case was also the first time the Commission issued a decision on a state’s failure to comply with its obligations under the Belém do Pará Convention, ensuring that the gender dimensions of Maria’s case (beyond the domestic violence she suffered at the hands of M.V.) were not overlooked and the discrimination she faced within the Brazilian court system was addressed.
In additional the “Maria da Penha Law on Domestic and Family Violence” (the “Maria da Penha Act”, 2006) was enacted as a result of the Commission’s decision. This law established special courts, increased sentences for perpetrators and established police stations and shelters for women in big cities (among other instruments for the prevention and relief of domestic violence). Within 5 years of the Maria da Penha Act, more than 331,000 prosecutions were held in Brazil and almost 2 million calls had been made to the Service Center for Women.