Ximenes-Lopes v. Brazil

Report No. 38/02, Petition 12.237, October 9, 2002; OEA/Ser.L/V/II.117 Doc. 1 rev. 1, 7 March 2003
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Mr. Damião Ximenes Lopes was admitted to Casa de Repouso on October 1st, 1999 to receive treatment for his mental illness. When his mother, Mrs. Albertina Ximenes, went to visit him three days later, Mr. Lopes had his hands bound behind his back.  He was bruised, his head was swollen, his nose bloody, and he smelled of feces and urine. When Mrs. Ximenes asked a physician, Mr. Francisco Ivo de Vasconcelos,  for help he refused to see her son, and prescribed medication without performing an examination.

An employee of Casa de Repouso told her that Mr. Lopes had lost a lot of blood.  When Mrs. Ximenes found her son again he was naked and still bound. She left the hospital, and by the time she arrived home she already had a message waiting that said her son had died. Mr. Francisco Ivo de Vasconcelos signed a medical certificate indicating that the cause of death was cardiorespiratory failure. An independent autopsy was performed and despite the physical evidence of torture, the cause of death was said to be indeterminable.

Mrs. Ximenes filed requests for aid with multiple authorities but the case was not investigated by the State and Casa de Repouso continued to operate. When the Group for Monitoring and Evaluation of Hospital Psychiatric Care visited Case de Repouso soon after these events, they were concerned about the above allegations of precarious medical care and abusive treatment and advised that Casa de Repouso was inadequate for its stated purpose and that the Public Ministry to intervene.

The Commission held that it was competent to hear the case. It determined it was competent (a) ratione personae because Brazil, which took responsibility for the conduct toward Mr. Lopes, was party to the American Convention on Human Rights (“the Convention”), (b) ratione materiae because the conduct described in the petition violated Articles 4, 5(1) and (2), 11, and 25 of the Convention on the right to life, the right to humane treatment, the right to privacy, and the right to judicial protection; (c) ratione temporis because Brazil ratified the Convention on September 25, 1992, and the conduct described happened after this date; and (d) ratione loci because the alleged conducted happened in Brazil, which had ratified the Convention.

The Commission also determined that the case was admissible because Brazil failed to raise the objection that the petitioner did not exhaust all domestic legal remedies and had therefore waived its right to raise this objection, because the complaint had been submitted within a reasonable time and because there was no indication that this matter was being adjudicated by another international procedure, and it had not previously been heard by the Commission.

The Commission held that the alleged conduct, if true, would have violated Mr. Lopes’ rights to life, privacy, humane treatment, and judicial protection. Under the Convention, Brazil agreed to ensure these rights, so the matter was admissible to the Commission.

For these reasons, the Commission finally concluded, without issuing a ruling on the merits, that it was competent to hear the matter and the issue was admissible.

“The Commission considers that prima facie the facts alleged by the petitioner tend to establish violations of the American Convention at Articles 4, 5, 11, and 25, for possible violations of the right to life, the right to humane treatment, the right to privacy, and the right to judicial protection, all in connection with the State’s generic obligation to respect and ensure the rights as established in Article 1(1) of the American Convention, to the detriment of Mr. DamiãoXimenes Lopes.” (Paragraph 27).