67
e)
in the instant case, the procedural steps taken by the alleged victim’s
relatives are not relevant for analyzing the reasonable time. As a result, the
State’s assertions that the deficiencies in the investigation and in the
production of evidence could have been cured by Mr. Damião XimenesLopes’ mother in his capacity as civil complainant in the criminal action No.
674/00, are groundless;
f)
the instant case may not be considered to be complex, as alleged by the
State, on the grounds of the allegedly large number of testimonies. The
negligent and unjustified conduct of the government authorities caused the
delay in the domestic proceedings, since they took a long time to start the
investigations, hold and appear at hearings, issue writs, warrants and
requests.. The authorities confined themselves to issuing interlocutory orders
without cause, and for months no decision or order was issued. The workload
of the Third Chamber of the Trial Court in and for Sobral is no excuse for the
State’s delay and inertia, and
g)
the lack of a first instance judgment after six years of Mr. Damião
Ximenes-Lopes’ death, together with the current status of the domestic
criminal proceeding, which is still in the preliminary stage, indicate that the
next of kin of the alleged victim are going through a situation of justice denial
by the government authorities.
Arguments of the Representatives
165. In relation with the alleged violation of Articles 8(1) and 25(1) of the
Convention to the detriment of the relatives of Mr. Damião Ximenes-Lopes, the
Inter-American Commission argued, inter alia, that:
a)
the police investigation is tainted with a number of irregularities which
compromise the inquiries into Damião Ximenes-Lopes’ death. The competent
authorities overlooked material evidence and testimony from eyewitnesses
that prove that the death of Mr. Ximenes-Lopez was the result of blows.
Among the flaws are the statement that the death of the victim was due to
“undetermined reasons;” the deficiency of the autopsy report, which raises
suspicion over the independence of the investigation; and the disappearance
of key evidence incriminating the managers of the Casa de Reposo de
Guararapes (Guararapes Rest Home);
(b) six years after Mr. Damião Ximenes-Lopes’ death, no person or
institution has been held responsible, as no judicial decision has been
rendered yet;
c)
while the inertia in prosecuting the perpetrators of Mr. Damião XimenesLopes’ death persists, the State will be breaching its obligation to effectively
punish human rights violations within a reasonable time;
d)
the case at hand has no particular trait that renders it particularly
complex. It is worth noting that the events have been looked into by several
entities and individuals, producing a large amount of documentary and
testimonial evidence; the witnesses and the accused are alive and have been
located, and there is no impediment save for the lack of effort by the
authorities to prosecute the perpetrators.
e)
as regards to the participation of the interested parties in the
proceedings, the next of kin of Mr. Damião Ximenes-Lopes made every effort
to cooperate with the Government investigators and pursue the case. In this