Wallace De Almeida vs. Brazil (Report No 26/09, Case 12.440)

Key paragraph(s) can be found below the document.

102. As Article 4 of the American Convention establishes that no one may be deprived of life arbitrarily, this encompasses not only deaths due to intentional acts but also those situations in which the loss of life occurs as an unintended result. Nonetheless, the deliberate use or unintended use of lethal force is only one factor that must be evaluated with respect to this requirement. Any use of force by law enforcement must be strictly limited to what is required to achieve the ends being sought. This indicates to us that a strict assessment must be made of what is required in order to determine whether the action of the State is “necessary” in a democratic society under the standards of the article cited. As a result, the force used must be found to be entirely proportional to the objectives sought.

103. In light of the importance that Article 4 of the American Convention gives to the protection of life, any case that involves a potential loss of life must be subject to careful scrutiny, taking into consideration not only the actions of the agents of the State but also the circumstances surrounding the matter. In particular, it is essential to examine whether the operation was planned and controlled by the authorities so as to minimize as much as possible the need to resort to the use of lethal force. The authorities were required to ensure that such risk was properly minimized. Another issue that must be examined is whether the authorities were negligent in choosing the course of action that surrounded the situation. Some decisions from the European Court of Human Rights support this view

105. The use of powerful weapons by agents of the police exposes human lives to potential danger, even when there are rules designed to minimize this risk. Consequently, the Commission believes that the unnecessary use thereof crosses the line of arbitrariness established under Article 4 of the American Convention, even more so when harm is done to an unarmed subject who was not suspected of having committed any punishable act, and thus was not specifically being pursued. The only situation in which a death caused by law enforcement would not violate this principle would be when there is proportionality between the aggression of the police and the response to it. In this case, the alleged victim was not suspected of having committed a crime, was unarmed, and had no substantive ability to attack the police. The scene was dark and the number of shots fired by the police was not strictly necessary and thus not justified. This leads to the conclusion that excessive force was used in this case.

106. The Commission believes that in the actual performance of a State’s obligation to protect the lives of its citizens under Article 4 of the American Convention, a crucial element is the proper planning of any operation to be carried out by law enforcement in which firearms are involved. To achieve this, consideration must be given at a minimum to the physical setting in which the operation will take place, the nature of the offenses committed by those whose arrest is being sought, and the degree of danger the suspects may pose, if any. Simply shooting is not permissible. The question of what circumstances justify resorting to the use of firearms should be limited to cases of self defense, of imminent threats of death or serious injury to others, to preventing the commission of particularly serious crimes involving grave threat to life, to arresting someone who poses a risk and resists authority, or preventing their escape, only when less extreme methods are not enough to achieve these ends.

139. […] When there are suspicions that racial attitudes led to a violent act, it is particularly important that an official investigation be conducted vigorously and impartially, considering the need to continuously reaffirm society’s condemnation of racism, and to retain minorities’ trust in the ability of the authorities to protect them from the threat of racial violence.