REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL
THE PROTECTION OF HUMAN RIGHTS IN BRAZIL'S JURIDICAL SYSTEM
A. THE INTERNATIONAL SYSTEM
1. In addition to its international commitments of a universal nature concerning the promotion of and respect for human rights,(1) Brazil is obliged to comply with the obligations and guarantees stemming from the Organization of American States Charter which, insofar as human rights are concerned, are set forth in the American Declaration on the Rights and Duties of Man, the "American Declaration") and in the American Convention on Human Rights or "Pact of San José de Costa Rica" (the "American Convention") to which it became a signatory on September 25, 1992, and later (August of 1996) signed the protocol calling for abolition of the death penalty. Brazil is also a party to the American Conventions to Prevent and Punish Torture (July 20, 1989) and to Prevent, Punish and Eliminate Violence against Women (November 27, 1995), but has not yet accepted the compulsory jurisdiction of the Inter-American Court of Human Rights.(2)
2. Pursuant to the Federal Constitution, all treaties and conventions to which Brazil is a State Party go into effect immediately in accordance with the country's internal system. The Executive Branch is empowered to honor them subject to a referendum of the National Congress (Article 84, subsection VIII of the Federal Constitution, hereinafter to be called FC); and once it has been accepted by the Congress, the President issues a decree calling for the execution thereof.
3. This immediate validity of international commitments in the realm of human rights means that they must be applied forthwith and there is no need for prior adoption of any legislative, administrative or other types of measures. The basis for this procedure is found in Article 5 of the Constitution, which says that:
The rights and guarantees expressly recognized in this Constitution do not exclude others derived from the regimen and principles adopted thereby, or the international treaties to which the Federative Republic of Brazil is a State Party.
The norms defining fundamental rights and guarantees take effect immediately.
4. During its visit, however the Commission received numerous complaints that many violations of human rights go unpunished--among other reasons, on the grounds of an alleged ignorance of those precepts, or the lack of regulation or failure to adjust the rules set forth in international treaties to the country's internal laws.
5. Following that same line of thought, the Commission must express its concern over the failure of the Brazilian State to comply with many of the obligations contained in international human rights instruments, on the premise that the individual states which comprise the Federative Republic have jurisdiction and competence over the offenses committed within the borders of each. The so-called "federative principle" whereby the individual States enjoy autonomous status has been used as explanation given in many instances preventing investigation and the determination of those responsible for the violations--frequently serious ones--of human rights, and it has helped to accentuate the impunity accorded to the perpetrators of such violations.
6. We must point out that, pursuant to Article 28 of the American Convention, when a State Party is constituted as a federal state, the national government is obliged to "implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction" (paragraph 1). In the case of "subject matter over which the constituent units of the federal state have jurisdiction," the national government has the obligation to "immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfillment of this Convention" (paragraph 2)(3).
B. THE CONSTITUTIONAL SYSTEM
7. In Brazil, the individual rights and guarantees set forth in the Constitutions of France and the United States were embodied in the Constitution of the Empire (1824) and that of the Republic (1891) and then expanded in the 1934 version. Between 1937 and 1946 those rights and guarantees were restricted, but were again recognized in the 1946 Constitution, a faithful copy of the 1934 version. A great setback came with the 1964 military coup. That marked the start of twenty-one years of miliary dictatorship (1964 to 1985), during which a new Constitution, drafted by the military authorities and again limiting individual freedoms, was approved in 1967. The restriction in question was further tightened, in particular by Institutional Act No. 1, in which the military regime limited civil liberties and the powers of Congress; Institutional Act No. 5 of 1968, which suspended the basic constitutional guarantees and granted the Executive Branch special powers; the first Constitutional Amendment in 1969; and, finally, Amendment No. 7 of 1977, which permitted the creation of a state military jurisdiction competent to judge the crimes committed by members of the so-called "military" police in the exercise of their common police duties.
8. The 1988 Constitution(4), currently in effect, preserves the federal republican and representative form of government that was first set forth in the 1891 Constitution and then confirmed in all of the subsequent versions. (5) Its Article 2 establishes the separation, independence and harmony of the Legislative,(6) Executive(7) and Judicial(8) Powers, which are the three branches of government in the Union. Article 18 establishes that the political and administrative organization encompasses the Union, the States, the Federal District and the Municipalities, which are granted autonomous status by the terms of the Constitution.(9)
Human Rights in the Constitution of 1988
9. The 1988 Constitution represents an important step forward in the field of human rights as compared with the 1967 version and the successive constitutional amendments approved during the military dictatorship. This was the result of a virtually unanimous perception by Brazilian society that, given the return to democracy after twenty-one years of a military regime, it would not be desirable to keep the 1967 Constitution in effect with the corresponding amendments--especially the first one.
10. In Section II, "On Individual Rights and Guarantees," the present Constitution invokes "the dignity of the human person"(10) and "the primacy of human rights"(11) as two of the essential principles on which the Federative Republic of Brazil is based in its capacity as a democratic state of law. Although the Constitution does not use the specific term 'human rights' in the rest of the text, the principle espousing that primacy is present in the various chapters and provisions of that section, which expands the roster of individual and collective rights and duties guaranteed in the Constitution of 1967. The same section also adds a long list of individual, collective, social, nationality-based, political and political party rights and guarantees as well.
11. Chapter I on "Individual and Collective Rights,"(12) for example, recognizes for the first time that it is not only individuals(13) but also groups which have rights. Moreover Article 5--the only provision in that Chapter, recognizes most of the basic rights and guarantees included in the international conventions for the protection of human rights and establishes protective measures which in many cases include completely innovative features. In listing the individual and collective rights and duties, the Constitution recognizes equality before the law; equal status of men and women; the principle that only the law can oblige a person to perform, or not to perform, a certain act; the prohibition of torture and of any inhumane or degrading treatment; freedom of thought and worship and philosophical or political beliefs; the expression of intellectual, artistic, scientific and communication activity; the inviolability of intimacy, private life, honor and the image of persons, the home, correspondence, telegraphic, telephone and data communications; access to information; freedom of movement, association and meetings; freedom of professional or labor union association; the right to own property and the social function thereof; the right of petition; and the right to justice and due process (FC, Article 5).
12. Chapter II deals with the social rights and Chapters II, IV and V, respectively, discuss nationality, political rights and political parties.
13. As regards political rights, the Constitution sets forth the principle of popular sovereignty (FC, Article 1) and establishes the forms in which it can be exercised: by universal suffrage and by direct and secret vote, with equal value for all and in the terms of the law, by means of plebiscite, referendum or popular initiative (FC, Article 14, I to III). With regard to political parties it proclaims freedom of creation, merger, incorporation and extinguishment, while respecting national sovereignty, the democratic system, the plurality of parties and the fundamental rights of the human person (FC, Article 17).
14. The Constitution also spells out six ways to guarantee the protection of threatened personal rights: the habeas corpus, the writ of security, the writ of collective security, the injunction; the habeas data; and popular action.
15. The habeas corpus is the oldest instrument of protection. It consists of a constitutional which is granted when a person suffers--or is faced with a threat of--violence or coercion of the individual's right to circulate freely as a result of an unlawful act or an abuse of power (FC, Article 5, paragraph LXVIII). The Code of Criminal Procedure (Article 648) lists, among others, the following hypotheses in which limitation of the right to move about freedom is to be considered unlawful: when no just cause exists; when the person has been held prisoner for a longer period than determined by law; and when the person who orders such coercion does not possess the competence so to do.
16. The "writ of security" is designed to protect the "exigible and certain right not covered by habeas corpus or habeas data"; when the party responsible for the unlawful act or abuse of power is a public official or a juridical person exercising the authority conferred by public office (FC, Article 5, LXIX). It is an effective instrument which calls for immediate jurisdictional examination of the act of an authority which--potentially or in reality--affects a certain and demandable right. It was introduced in 1926 and protects rights which until then were shielded--albeit imperfectly--by the habeas corpus. It is an extremely important instrument, even broader than the habeas corpus, since it protects a multitude of rights, including the right to freedom, and it goes beyond the right to freedom of movement and the right to equality. In other words, it protects every assured and unassailable right against any violent or coercive act on the part of an official.
17. The "writ of collective security" may be requested by: a political party that is represented in the National Congress or a labor organization, a class entity or legally constituted association that has been in operation for at least one year in the defense of its members' or associates' interests (FC, Article 5, paragraph LXX). This writ seeks to defend the sundry rights of the members of an association or a community of persons. The entities entitled to request the writ do not need the consent of their members to do so, although the action must be included in their mandate and consonant with regulatory procedures.
18. The "injunction" may be requested "whenever the absence of a regulatory norm makes it impossible to exercise the constitutional rights and freedoms and the prerogatives inherent to nationality, sovereignty and citizenship. (FC, Article 5, LXXI).
19. The purpose of the habeas data is to provide the average citizen with access to the information on record with public agencies concerning that person. It also makes it possible to request that any errors in the data be corrected when this method is preferred, rather than a secret, judicial or administrative procedure (FC, Article 5, LXXII). This is an important right that is very relevant in the new information age.
20. The "popular action" allows any citizen to take a legitimate part in a proposed appeal against any (administrative) act prejudicial to public interests, or that of an agency in which the State is a partner; or to administrative morality; the environment; and the historical and cultural heritage. The author of the act--unless shown to have acted in bad faith--is exempted from the payment of judicial costs. This measure is extremely important since the possibility of annulling any act that might impair administrative morality opens the door to examination, by the Judicial Branch, of the merits of administrative acts.
C. THE ADMINISTRATION OF JUSTICE IN BRAZIL
21. Articles 92 through 126 of the Federal Constitution set forth the rules applicable to organization of the Judicial Branch.
22. The organs of the Judicial Branch are: the Federal Supreme Court; the High Court of Justice; the Federal Regional Courts (FC Article 108) and the federal judges (FC Article 109); the labor courts and judges (FC Articles 111 and 114); the military tribunals and judges and the judges of the states and the Federal District and territories (FC Article 92). The Federal Supreme Court consists of eleven ministers appointed by the President of the Republic and it is the highest organ of the Judiciary. Its basic function is to defend the Federal Constitution,(14) which is deemed to be the vehicle which expresses Brazilian social and political values. The High Court of Justice, consisting of no fewer than thirty-three ministers appointed by the President of the Republic is the organ which articulates and defends federal objective law.(15) The Federal Supreme Court and the high courts are located in the federal capital and their jurisdiction extends throughout the national territory.(16)
23. The Federal Union has the authority to organize and maintain the Judiciary, the Ministry of Justice and the Public Defender's Office of the Federal District and the territories.(17) For their part, the federated states have the authority to organize their justice systems, provided that they respect the principles set forth in the Federal Constitution.(18) The purviews of the courts and the state judges are set forth in the states' constitutions, and the law on judicial organization is handed down by the court of justice.(19)
24. At the same time, the Federal Constitution guarantees the organizational and administrative autonomy of the courts. This includes the power to structure and determine the operations of their organs, as well as financial autonomy, including the ability to draw up their own budgets.(20)
25. The Criminal Code regulates all matters involved in criminal law(21), and the Code of Criminal Procedure (CPP) regulates the criminal procedure applicable in the regular criminal courts. In addition to these bodies of law, there are special systems, such as the Military Criminal Code and the Code of Military Criminal Procedure (CPPM), which governs criminal proceedings brought before the military courts (Article 1 of the CPPM). The four codes cited are applied throughout the nation (Articles 5 of the CP, Article 1 of the CPP, Article 7 of the CPM and Article 1 of the CPPM). In other words, these provisions apply to crimes committed both in the Federal District and in the various states.
26. As discussed at length in the chapter on "Violence and Police Impunity," there are two parallel military justice systems in Brazil. One of them has jurisdiction over the offenses committed by members of the state police forces, consisting of the so-called "military police" who carry out most of the typical security functions for the entire population--including the obvious ones: the preservation of tranquility among civilians, and the prevention and repression of crime. According to the Federal Constitution, this state military justice can be created by the state law in the respective federated state and in the Federal District when proposed by the court of justice. It is competent to process and judge members of the military police who have been accused of committing crimes--specifically, military crimes--against the civil population. As noted in Chapter III, its jurisdiction has been reduced by the new law 9299/95, although the reduction which puts willful crimes against life under the heading of common justice does not significantly change the scope of this privileged class, which has been a prime source of impunity. In April 1997, a new draft from the Federal Executive proposing a constitutional ambedment to give the federal system justice system competence to try crimes against human rights was approved by the Constitutional and Justice Committee of the Chamber of Deputies.
27. The other military justice, federal in scope, is regulated by Law 8457/92, which was originally designed to process and judge members of the armed forces.
1. Within the framework of the United Nations, in addition to its obligation to observe the Charter, one of whose requirements, besides others, is "to promote universal respect for, and observance of, human rights and fundamental freedoms for all..." (Articles 55 and 56), Brazil has ratified the International Pact on Economic, Social and Cultural Rights of 1966 (April 24, 1992), and the International Pact on Civil and Political Rights of 1966 (January 24, 1992).
2. Brazil is a party to the following treaties and conventions, besides others, in the area of human rights: Convention on Asylum (signed in 1928; ratification or adherence on September 3, 1929); Convention on Political Asylum (signed in 1933; ratified on February 23, 1937); Inter-American Convention on the Concession of Civil Rights to Women (signed in 1948 and ratified on March 19, 1952); Inter-American Convention on Concession of Political Rights to Women (signed in 1948 and ratified on March 21, 1950); Convention for the Prevention and Repression of the Crime of Genocide (signed in 1948 and ratified on September 4, 1951); Convention (No.98) on the Right of Organization and Collective Bargaining (1949; ratification or adherence on November 18, 1951); the Conventions of Geneva (I to IV) on International Humanitarian Law (signed in 1949; ratification or adhesion on June 29, 1957); Convention (No.100) on Equality of Remuneration (1951; ratification or adherence on April 25, 1957); Convention Relative to the Statute of Refugees (signed in 1951 and ratified on August 13, 1963); Convention on the Political Rights of Women (1952) (signed in 1953 and ratified on August 13, 1963); Convention Relative to Slavery (signed in 1953; adherence on January 6, 1966); Convention on Diplomatic Asylum (signed in 1954; ratification or adherence on September 17, 1957); Supplementary Agreement on the Abolition of Slavery, Slave Traffic and Institutions and Practices Similar to Slavery (signed in 1956; adherence on January 6, 1966); Convention (No.105) on the Abolition of Forced Labor (1957; ratification or adherence on June 18, 1965); Convention (No.111) on Discrimination in Employment and Occupation (1958; ratification or adherence on November 26, 1965); Convention Relative to the Struggle Against Discrimination in the Field of Education (1960; ratification or adherence on April 19, 1968); International Convention on the Elimination of All Forms of Racial Discrimination (1965; signed in 1966 and ratified on March 27, 1968); Protocol on the Statute of Refugees (1966; signed in 1967; adherence on March 7, 1972); Convention (No.35) on Representation of Workers (1971; ratification or adherence on May 17, 1990); Convention of the Elimination of All Forms of Discrimination Against Women (1979; signed in 1979 and ratified on February 1, 1984); Convention Against Torture and Other Instruments or Cruel, Inhuman or Degrading Punishment (1984; signed in 1984 and ratified on September 28, 1989); Inter-American Convention to Prevent and Punish Torture (1965; signed in 1985 and ratified on July 20, 1989); Convention on the Rights of Children (1989; signed in 1989 and ratified on September 24, 1990). Information taken from the Archives of the Division of International Acts, Ministry of Foreign Relations, and from the Initial Brazilian Report Relative to the International Pact on Civil and Political Rights of 1966, Ministry of Foreign Relations, from the Alexandre de Gusmao Foundation and from the Nucleus on Studies of Violence, University of Sao Paulo (1994).
3. The Federal Government has secured the Cooperation of the states in a few serous cases, meaning that the Federal Police secures exemption of certain investigations and provides the means for resolution of charges.
4. The 1891 Constitution demarked the end of the imperial government. In 1993 a plebiscite was performed, in which the brazilian lelectorate, when faced against the options of parlamentary/presidentialist republican/monarquic, majoritarily pronounced itself for the presidentialist republican government,
5. . The two constitutions during the Vargas period, which was a very centralized government, adopted, formally at least, the federal, representative system of government. The 1946 Constitution, which represented a return to liberal principles, naturally preserved this form of government as well. The 1967 Constitution and Amendment No. 1, issued during the military regime, did not alter this traditional element.
6. The 1988 Constitution endowed Congress with certain powers and authorities that had traditionally belonged to the executive branch of government. It also instituted a number of legislative control measures that had previously been the exclusive purview of the executive branch of government. Among these is Congress' power to approve the state of defense or federal intervention and to authorize the state of siege. It can also suspend any of those measures.
7. Executive power is in the hands of the president of the Republic. Under Article 77 of the Constitution, the president and vice president must be elected simultaneously.
8. The judicial power is exercised by: the Federal Supreme Court, the Superior Court of Justice, the federal regional courts and the federal judges, the labor courts and judges, the electoral tribunals and judges, the military tribunals and judges and the courts and judges of the states and Federal District and the territories (Article 92 of the FC). The justices of the Federal Supreme Court are appointed by the executive branch with the consent of the Senate (Article 102 of the FC). The judges of the Superior Court of Justice are also appointed by the executive branch at which point the Federal Senate approves the selection. However, the judges must be chosen from among groups specified in the Constitution (Article 104 of the FC). The judges of the federal regional courts are also named by the President (Article 107 of the FC).
9. The Federal District is the political unit to which the federal capital, Brasilia, belongs (Article 18, subparagraph 1 of the Constitution). It has the same legislative prerogatives reserved for the federal states and the municipalities (Article 32, subparagraph 1 of the Constitution) and even has a popularly elected governor and representative in the House of Deputies (Article 32, subparagraph 2, in keeping with articles 77 and 45, subparagraph 2 of the Constitution) and in the Federal Senate (Article 46 of the Constitution). The federal territories, mentioned in Article 18, paragraph 2 of the Constitution, are part of the Union and have administrative autonomy, but not political autonomy. The existence of the territories is justified given the retarded development of the region or community. The territories are, in theory, in a transitional period, waiting for statehood or to be attached to another state. The territories do not have representatives in the Senate (Article 46 of the Constitution) and their governors are named by the President of the Republic (Article 84, subparagraph XIV of the Constitution) and approved by the Federal Senate (Article 52, subparagraph III of the Constitution).
10. Article 1, subparagraph II, FC.
11. Article 4, paragraph II, FC.
12. Article 5, subparagraphs I to LXXVII, FC.
13. See, for example, Article 103, subparagraphs VIII and IX and Article 5, subparagraph 5, of the Constitution, which allows a constitutionality challenge to be filed by a political party or a collective writ of mandamus to be sought by a labor union.
14. In this regard, Article 102 of the Federal Constitution states that: AThe Federal Supreme Court is responsible, mainly, for safeguarding the Constitution....@
15. The competence of the High Court of Justice is divided into three areas: 1) originating power, as the sole and final instance for hearing and judging the matters referred to in Article 105.I of the Federal Constitution, involving, in the case of common offenses, the governors and high judicial authorities of the states; 2) power to rule, upon ordinary appeal, in the cases referred to in Article 105.II; and 3) power to rule, upon special appeal, when a judgement is appealed on grounds of unconstitutionality, to rule on the unconstitutionality of a treaty or federal law or to declare the validity of a law or act of local government challenged as being inconsistent with the Federal Constitution (Article 105.III).
16. Article 92, sole paragraph of the Federal Constitution.
17. Article 21.XIII of the Federal Constitution.
18. Article 125 of the Federal Constitution.
19. Article 125, paragraph 1 of the Constitution. Paragraph 2 of the same article establishes that:
The states are responsible for making representation as to the unconstitutionality of laws or state or municipal regulatory acts that are inconsistent with the state constitution, but it is prohibited to authorize a single organ to make said representation.
20. Article 99 of the Federal Constitution reads:
The Judicial Branch is assured administrative and financial independence.
1 The courts shall prepare their budget proposals, together with the other branches of government, within the limits stipulated in the budget directives law.
2 Presentation of the proposal is, after all other interested courts are heard, the responsibility of:
I. In the national realm, the presidents of the Federal Supreme Court and the Superior Courts, with the approval of the individual courts.
ii. In the realm of the states and the federal district and territories, the presidents of the Courts of Justice, with the approval of the individual courts.
21. Understood as repression of crimes or offenses by means of imposition of sentences.