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Inter-American Court finds slavery in Brazil: Fazenda Brazil v Brazil
Case of the Hacienda Brazil Verde Workers v. Brazil (2016)
 
On 15 December 2016, the Inter-American Court of Human Rights found the State of Brazil responsible for the violation of the right not to be subjected to slavery and trafficking of 85 workers rescued in 2000 from the Brasil Verde Estate, located in the state of Pará. While the Inter-American Court has dealt with a few cases falling under Article 6 of the American Convention previously, this is the first to deal centrally with slavery on the continent and presents a significant step forward in the development of regional and international standards on modern day slavery and trafficking.
 
With regard to the facts, the judgment notes that upon arrival at the Hacienda Brasil Verde, the workers were forced to hand over their work certificates to the manager and to sign blank documents. They were subjected to excessive working hours, threats and violence, degrading living condition and constant vigilance by armed guards (paras. 164-171). This vigilance, together with the lack of salary and the isolated location of the hacienda prevented the workers from returning to their homes (para. 173). The situation was characterised by the Public Ministry as a “private prison system†(para. 179).
 
In an important and considered judgment, the Court analysed the evolution of the prohibition of slavery and related practices under international law and had close regard to comparative standards, in particular the jurisprudence of international courts and tribunals. An Amicus Brief filed by Human Rights in Practice on 17 March 2016 had set out for the Court an analysis of international jurisprudence of relevance to the Court’s interpretation of the prohibition under article 6 and the state’s positive obligations in respect of it (see e.g., judgment paras 259 to 265).
 
The Court concluded that the absolute and universal prohibition of slavery is consolidated in international law; while the definition of that concept has not changed substantially since the 1926 Convention, the interpretation has evolved such that it should no longer be limited to the exercise of rights of ‘ownership’ over the person (paras. 268-269). The Court adopted the elements of slavery in line with the evolving approach of other international tribunals, with an emphasis on the question of control in assessing whether the “attributes of property right†were exercised (paras. 271-272). The “property†notion must be understood in the present day as control exercised over a person that significantly restricts or deprives him of his individual freedom, with the intent to exploit through the use, management, benefit, transfer or divestment of a person. The Court refers for example to a degree of control that annuls the integrity or personality of the victim (para. 269).This will generally be supported and obtained through violence, deception and/or coercion (para. 271). 
 
In respect of servitude, the Court affirmed, in line with the definition of the European Court of Human Rights, that it is an analogous form of slavery, and affirming that the coercion that underpins it can be both explicit and subtle (para. 279).
 
In line with the approach set out in the Amicus Brief, the Court interpreted the expression “trafficking in slaves and women†in Article 6.1 of the American Convention must be interpreted broadly to refer to “trafficking in persons†(para. 288-289).
 
Applying the law to the facts, the Court found it evident that the 85 workers were not only in a situation of servitude but that the specific characteristics of the case met the elements of the definition of slavery, in particular the degree of control and loss of liberty (para. 304). In one of very few such decisions supranationally, the Court also concluded that the workers were victims of human trafficking (para. 305). Finally, the Court highlighted the multi-faceted character of slavery and the cumulative violations that together amounted to violations of Article 6 of the Convention (para. 306).
 
The Court noted that Brazil continues to produce high numbers of victims of slavery and servitude and highlighted the importance of preventive obligations, including measures to discourage the demand that fuels the exploitation of labour (para. 318).  The Court found a series of failures and negligence on the part of the State in its territory prior to 2000 in order to prevent the occurrence of serfdom, trafficking and slavery, as well as child labour and slavery (para. 325 and 333). Significantly, in grappling to an extent with root causes and contributors, the Court found that the State of Brazil did not consider the vulnerability of the 85 workers because of the structural discrimination based on their economic position. This constitutes a violation of Article 6 (1) of the American Convention, in relation to Article 1.1 of the same instrument on non-discrimination (para. 341).
 
Brazil did not demonstrate that, in the present case and at the time of the facts, specific measures were adopted, in accordance with the circumstances already known to workers in situations of slavery and specifically denunciations against the Brasil Verde Estate, in order to prevent the occurrence of the violation of article 6.1 found in the instant case (para. 342).
 
The Court also found that the State did not act promptly after the complaints to investigate, allowing too long between complaint and the inspection, and failing to coordinate effectively the police operations. The Court concludes that the State did not act with due diligence required to prevent slavery (para. 342).
 
The “Reparations†chapter finds that Brazil should reopen the investigation. In particular, the State:
a) must ensure full access and capacity to act to the victims and their families at all stages of the investigations; b) refrain from recourse to certain tools such as amnesties, as well as any procedural obstacles; c) ensure that the investigation and prosecution of the case are maintained under the federal jurisdiction; and d) publish the outcome of the proceedings (para. 445).
 
Reparation also includes guarantees of non-repetition: the crime of slavery and its analogous forms must be imprescriptible, regardless of whether they correspond to a crime under Brazilian law (para. 454). However, the Court considered that determining the appropriate penalty for the offense is not the task of an international court (para. 462).The Court also did not accede the representatives’ request that Brazil should modify the definition of human trafficking in its domestic law (para. 458). The Court urged Brazil to continue to increase the effectiveness of its policies and the interaction among the various bodies involved in the fight against slavery (para. 470).
 
The judgment makes a significant contribution to consolidating international standards on slavery, the positive obligations of prevention required of the state and in recognizing the inherent connection between slavery related practices and systemic discrimination.
 
The judgment is available (in Spanish) here.
The amicus intervention is available here.