INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF THE HACIENDA BRASIL VERDE WORKERS V. BRAZIL JUDGMENT OF OCTOBER 20, 2016 (Preliminary objections, merits, reparations and costs) In the case of the Hacienda Brasil Verde Workers, the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:1 Eduardo Ferrer Mac-Gregor Poisot, acting President Eduardo Vio Grossi, acting Vice President Humberto Antônio Sierra Porto, Judge Elizabeth Odio Benito, Judge Eugenio Raúl Zaffaroni, Judge, and L. Patricio Pazmiño Freire, Judge; also present, Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter, “the American Convention” or “the Convention”) and Articles 31, 32, 42, 65 and 67 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure” or “the Court’s Rules of Procedure”), delivers this judgment, structured as follows: 1 Judge Roberto F. Caldas, a Brazilian national, did not take part in the deliberation of this judgment, in accordance with the provisions of Articles 19(2) of the Court’s Statute and 19(1) of its Rules of Procedure. TABLE OF CONTENTS I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 4 II PROCEEDINGS BEFORE THE COURT 6 III JURISDICTION 8 IV PRELIMINARY OBJECTIONS 8 A. Alleged inadmissibility of the submission of the case to the Court owing to the publication of the Merits Report by the Commission 9 B. Alleged lack of jurisdiction ratione personae regarding the presumed victims 11 C. Alleged lack of jurisdiction ratione personae for violations in abstract terms 15 D. Alleged lack of jurisdiction ratione temporis with regard to facts prior to the date of acceptance of the Court’s jurisdiction, and alleged lack of jurisdiction ratione temporis in relation to facts prior to the State’s adhesion to the Convention 16 E. Alleged lack of jurisdiction ratione materiae based on violation of the principle of the subsidiary nature of the inter-American system 18 F. Alleged lack of jurisdiction ratione materiae regarding presumed violations of the prohibition of trafficking in persons 20 G. Alleged lack of jurisdiction ratione materiae concerning supposed violations of labor rights 21 H. Alleged failure to exhaust domestic remedies 22 I. Alleged prescription of the claim for reparation for pecuniary and non-pecuniary damage before the Commission 24 V EVIDENCE 25 A. Documentary, testimonial and expert evidence ¡Error! Marcador no definido. B. Admission of the evidence ¡Error! Marcador no definido. C. Assessment of the evidence ¡Error! Marcador no definido. VI FACTS ¡Error! Marcador no definido. A. Context 26 B. Facts that fall within the Court’s temporal jurisdiction ¡Error! Marcador no definido. VII DETERMINATION OF THE PRESUMED VICTIMS 45 A. April 1997 inspection ¡Error! Marcador no definido. B. March 2000 inspection 49 VIII MERITS ¡Error! Marcador no definido. VIII-1 PROHIBITION OF SLAVERY, SERVITUDE, FORCED LABOR AND THE SLAVE TRADE AND TRAFFIC IN WOMEN, THE RIGHTS TO PERSONAL INTEGRITY, PERSONAL LIBERTY, RECOGNITION OF JURIDICAL PERSONALITY, FREEDOM OF MOVEMENT AND RESIDENCE, AND THE RIGHTS OF THE CHILD 55 A. Arguments of the parties and of the Commission 55 B. Considerations of the Court 61 B.1 The evolution of the prohibition of slavery, servitude, forced labor and practices similar to slavery in international law 63 B.2 International tribunals and quasi-judicial bodies 67 B.3 Aspects of the concept of slavery 70 B.4 Prohibition of servitude and its definition as a practice similar to slavery 71 B.5 Definition of the slave trade and traffic in women and their prohibition 73 B.6 Forced or compulsory labor 76 B.7 The facts of this case in light of the international standards 76 2 B.8 Brazil’s criminal laws 79 B.9 State responsibility in this case 81 B.10 Obligation of prevention and non-discrimination 82 B.11 The rights of the child 84 B.12 Structural discrimination 85 B.13 Conclusion 87 VIII-2 THE RIGHTS TO JUDICIAL GUARANTEES AND TO JUDICIAL PROTECTION 88 A. Arguments of the parties and of the Commission 89 B. Considerations of the Court 91 B.1 Due diligence 91 B.2 Reasonable time 93 B.3 Absence of effective judicial protection 96 B.4 The investigations into the alleged disappearance of Iron Canuto da Silva and Luis Ferreira da Cruz 103 IX REPARATIONS ¡Error! Marcador no definido. A. Injured party ¡Error! Marcador no definido. B. Investigative measures ¡Error! Marcador no definido. C. Measures of satisfaction and guarantees of non-repetition¡Error! Marcador no definido. D. Other measures requested ¡Error! Marcador no definido. E. Compensation ¡Error! Marcador no definido. F. Costs and expenses ¡Error! Marcador no definido. G. Method of complying with the payments ordered ¡Error! Marcador no definido. X OPERATIVE PARAGRAPHS 119 3 I. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 1. The case submitted to the Court. On March 4, 2015, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted to the Court the case of the Hacienda Brasil Verde Workers v. the Federative Republic of Brazil (hereinafter “the State” or “Brazil”). The case relates to a supposed practice of forced labor and debt bondage in Hacienda Brasil Verde, located in the state of Pará. It is alleged that the facts of the case took place in a context in which, each year, tens of thousands of workers were subjected to slave labor. In addition, it is alleged that the workers who were able to escape gave declarations regarding the existence of death threats to those who abandoned the hacienda; the prohibition to leave freely; the absence of salaries or the existence of a paltry wage; their debts to the hacienda, and the lack of decent housing, food and health care. This situation could presumably be attributed to the State because, since 1989, it had been aware of the existence of these practices in general, and specifically in the Hacienda Brasil Verde and, despite this awareness, it had not taken reasonable steps to prevent or to respond to the situation, and had not provided the presumed victims with an effective judicial mechanism to protect their rights, to punish those responsible, and to allow the presumed victims to obtain redress. Lastly, it was alleged that the State was internationally responsible for the disappearance of two adolescents that had been reported to the state authorities on December 21, 1988, allegedly without any effective measures having been taken to discover their whereabouts. 2. Procedure before the Commission. The case was processed before the Inter-American Commission as follows: a) Petition. On November 12, 1998, the Inter-American Commission received the initial petition lodged by the Comissão Pastoral da Terra (hereinafter also “CPT”) and the Center for Justice and International Law (hereinafter “CEJIL”). b) Admissibility and Merits Report. On November 3, 2011, the Commission issued Admissibility and Merits Report No. 169/11 pursuant to Article 50 of the American Convention (hereinafter “Admissibility and Merits Report”), in which it reached a series of conclusions and made several recommendations to the State. i) Conclusions. The Commission concluded that the State was internationally responsible for: a. Violation of the rights recognized in Articles 6, 5, 7, 22, 8 and 25 of the Convention, in relation to Article 1(1) of this instrument, of the Hacienda Brasil Verde Workers found in the inspections carried out in 1993, 1996, 1997 and 2000. b. Violation of the rights recognized in Articles I, II, XIV, VIII and XVIII of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration” or “the Declaration”) and, after September 25, 1992, violation of Articles 8 and 25 of the Convention, in relation to Article 1(1) of this instrument, to the detrimen of Iron Canuto da Silva and Luis Ferreira da Cruz, and their next of kin, including José Teodoro da Silva and Miguel Ferreira da Cruz. Also, for violation of Article I of the Declaration and, after September 25, 1992, of Article 5 of the Convention, of the next of kin of Iron Canuto da Silva and Luis Ferreira da Cruz. c. Violation of Articles I, VII and XIV of the Declaration and, after September 25, 1992, of Articles 7, 5, 4, 3 and 19 of the Convention, in relation to Articles 8, 25 and 1(1) of this instrument, to the detriment of Iron Canuto da Silva and Luis Ferreira da Cruz. d. Failure to adopt sufficient and effective measures to ensure, without discrimination, the rights of the workers found during the 1993, 1996, 1997 and 2000 inspections, 4 in accordamce with Article 1(1) of the Convention, in relation to the rights recognized in Articles 6, 5, 7, 22, 8 and 25 of this instrument. e. Failure to adopt measures in accordance with Article II of the Declaration, in relation to Article XVIII of this instrument and, after September 25, 1992, with Article 1(2) of the Convention, in relation to the rights recognized in Articles 8 and 25 of this instrument, to the detriment of the workers Iron Canuto da Silva, Luis Ferreira da Cruz, Adailton Martins dos Reis, José Soriano Da Costa, and of the next of kin of the first two, who include José Teodoro da Silva and Miguel Ferreira da Cruz. f. Application of the statute of limitations in this case in violation of Articles 8(1) and 25(1) of the Convention, in relation to the obligations established in Article 1(1) and in Article 2 of this instrument, to the detriment of the workers Iron Canuto da Silva, Luis Ferreira da Cruz, Adailton Martins dos Reis, José Soriano Da Costa, and of the next of kin of the first two, who include José Teodoro da Silva and Miguel Ferreira da Cruz, as well as of the workers who were in Hacienda Brasil Verde during the 1997 inspections.