37
the operation that involved around 50 families that were at the Hacienda during the
eviction; it is also strange that the order to summon the Hacienda’s employees to give
testimony was not complied with (supra paras. 76 and 85). Likewise, the case file shows
that some of the evidence required by Police Chief Almeida and by Prosecutor Garcia was
only produced partially.121
Error in the request to close the Investigation
128. Additionally, the request of the Public Prosecutor’s Office to close the Investigation
was based, among other reasons, on the fact that “Morival Favoreto denied taking part in
the facts, stating that he was in São Bernardo do Campo […] accompanying his brother,
Darci Favoreto, on a doctor’s visit,” and that Dr. Flair Carrilho had “confirmed the presence
of Darci Favoreto in his office, in the [said] city on the day of the facts (supra para. 97). In
this regard, the Court highlights that, contrary to the statement made by the prosecutor,
the witness Flair Carrilho stated that he attended Darci Favoreto on November 25, 1998,
and that it was his signature on the receipt with the same date and, thus, he did not
confirm the presence of Darci Favoreto, or of his brother Morival, in his office on November
27, 1998, the date of the facts.
*
*
*
129. When requesting the closure of the investigation, the Public Prosecutor’s Office did
not consider the possibility of ordering the measures mentioned in the previous paragraphs
concerning the statements, the vehicles and the weapons used in the eviction (supra paras.
122 to 127). Irrespective of the personal conviction of the prosecutor, it is clear that the
latter accepted as true the information provided by police clerk Ribeiro and Morival
Favoreto, without seeking to prove it, or compare it with other reiterated evidence in the
case file, thus waiving the State’s punitive powers. In addition, Judge Khater’s decision to
close the investigation merely endorsed the opinion of the Public Prosecutor’s Office; it did
not assess the measures that had been taken or provide grounds to justify the decision. In
this regard, when deciding to close the investigation, the judge failed to exercise effective
judicial control over the said request, which, as the Court has already described, contained
various errors and omissions.
130. The Court considers that the State bodies responsible for an investigation into the
violent death of an individual, the purpose of which is to determine the facts, identify those
responsible and decide their possible punishment, should perform their task diligently and
exhaustively. Given the juridical right to which the investigation relates, there is an
obligation to make every effort to ensure that all necessary measures are taken to comply
with this objective. The negligent or omissive action of State bodies is not compatible with
the obligations arising from the American Convention, especially when an essential human
right is involved.
121
In this regard, despite the instructions given in Police Chief Almeida’s order to take the testimony of
Eduardo Minutoli Junior (supra paras. 85 and 91), he was not questioned about the date on which Morival Favoreto
stayed at his home in order to accompany his brother to a doctor’s visit. As the witness Fábio Guaragni stated
before this Court, that testimony was “laconic” and the deponent “was not asked essential questions.” Testimony
rendered by Fabio Guaragni at the public hearing, supra note 63. Similarly, the witness, Flair Carrilho, was not
asked all the questions indicated by Police Chief Almeida in his request (supra paras. 85 and 94). Consequently,
the Prosecutor’s request that “the alibi presented by the accused, Morival Favoreto, for the day of the facts be
confirmed” was not complied with either (supra para. 83). In any case, the possible presence of Morival Favoreto
in another city on November 25, 1998, did not provide an explanation with regard to a fact that occurred two days
later.
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