IACHR refers case on Brazil to the Inter-American Court

August 16, 2021

Washington, D.C. - On July 29, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of Neusa dos Santos Nascimento and Gisele Ana Ferreira regarding Brazil before the Inter-American Court of Human Rights. The case refers to the racial discrimination suffered in the workplace by Neusa dos Santos Nascimento and Gisele Ana Ferreira in 1998, as well as the situation of impunity regarding these facts.

Following an advertisement in the newspaper Folha de São Paulo for a vacancy in the company Nipomed, the victims, both of African descent, went to the company expressing interest in the position. The person who received them informed them that all vacancies were filled, without asking the candidates for any information. Hours later, a white woman came to the company expressing interest in the advertised vacancy and was attended to by the same person, who immediately hired her. After learning of this and that there were more vacancies in the company, Gisele Ana Ferreira went again and was received by another recruiter, who asked her to fill out the selection form. However, after that, she was never contacted.

On March 27, 1998, the victims filed a discrimination complaint. On August 20, 1999, the Prosecutor's Office, in its closing arguments, confirmed the charge. However, a week later, the judge dismissed the criminal action and acquitted the defendant. It took almost four years for the appeal to be forwarded to the appellate court. On August 11, 2004, the court upheld the criminal action and sentenced the defendant to two years imprisonment for the crime of racial or color prejudice under semi-open regime but declared the extinction of the penalty due to statute of limitations. On October 5, 2004, the Public Prosecutor's Office filed an appeal on the grounds that the crime of racism is imprescriptible under the Federal Constitution of Brazil, which was granted. On October 26, 2006, an arrest warrant was issued and on June 6, 2007, an appeal was granted for the convicted person to serve the sentence in open regime. On November 7, 2007, the convicted person filed an appeal for review, which was pending according to the information available at the time of the adoption of the Merits Report. On the other hand, on October 25, 2006, Neusa dos Santos Nascimento filed a civil action for damages, which was rejected on December 5, 2007.

In its Merits Report, the Commission took note of the general context of discrimination and lack of access to justice of the Afro-descendant population in Brazil, particularly Afro-descendant women, and highlighted that the facts denounced in the present case coincide with the information known to the Commission regarding this context. It also noted that, at the time of the adoption of the Merits Report, despite the existence of a criminal conviction for the crime of discrimination, there had not been a final judicial decision, no form of restitution of the rights violated had been applied, and no comprehensive reparation had been sought for the victims. The Commission considered that the more than twenty years that have elapsed since the filing of the complaint constitute an excessive period of time that has not been adequately justified.

In view of the foregoing, the Commission concluded that the State did not provide an adequate judicial response in relation to the acts of discrimination regarding the right to access to work that the Brazilian State itself determined at the time were suffered by Ms. Neusa dos Santos Nascimento and Ms. Gisela Ana Ferreira. The Commission concluded that the State is therefore responsible for the violation of the rights to judicial guarantees and judicial protection recognized in Articles 8(1) and 25(1) of the American Convention, in relation to the rights to equality before the law and to work enshrined in Articles 24 and 26, and the obligations established in Article 1(1), to the detriment of the victims.

In its Merits Report, the Commission recommended that the State:

1. Make full reparations for the human rights violations declared in the Merits Report to the detriment of Neusa dos Santos Nascimento and Gisele Ana Ferreira, including fair compensation for material and non-material damages, as well as symbolic reparations that promote the prevention of racism and racial discrimination in the workplace.
2. Carry out a national campaign to raise awareness of the importance of investigating and punishing racial discrimination in an effective manner and within a reasonable period of time, in accordance with applicable Inter-American standards, and with a gender focus in the workplace.
3. Adopt legislative, public policy or other frameworks that require, promote and guide companies to conduct human rights due diligence in their labor hiring processes, particularly with respect to access to employment without discrimination against Afro-descendant women, in accordance with applicable standards.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 213/21

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