POLICE VIOLENCE, IMPUNITY, AND EXCLUSIVE MILITARY JURISDICTION FOR THE POLICE
A. VIOLENCE AND POLICE IMPUNITY
1. The Brazilian security forces have been repeatedly accused of systematic violations of human rights and of the existence of a system which guarantees the impunity of these violations. The Commission believes that there is indeed a history of abusive practices by the police, proven by the Brazilian justice system and recognized by the government itself in the National Human Rights Plan, though not all national or state security forces are liable for violations.
2. An analysis of the structure and responsibilities of these security forces should be presented before examining the resulting illegal violence and looking into the study of police violence and its domestic and external control mechanisms.
Structure of the Police System
3. The authority to enforce, organize, and guarantee public security is shared between the federal government and the states; there are federal police and, in each state, civil police and military police.
4. The federal police, within the federal jurisdiction, report to the Ministry of Justice and are active nationwide. The main function of the federal police is to uncover criminal offenses against the political and social order and against the goods, services, and interests of the federal government, its autonomous bodies, and public enterprises, as well as other offenses with interstate or international repercussions, or which must be uniformly repressed, as provided by law. They are also responsible for prevention and control of illicit trafficking in narcotics and similar drugs, contraband, and of attempts to evade the maritime, air, and border police and federal police enforcement.
5. The state police are divided into civil police and Amilitary police. The Amilitary police perform typical civil police duties, report directly to the executive branch (Governor and Secretary of Public Security, respectively, in each state) but it is not an internal force of the national military. However, they have kept the name Amilitary police, which was given to them when the force was created during the period of military government in 1977.(1) To remember that it is not a properly a military force and that it directly depends of the Executive Power of each state, in this report it will appear in Asemicolums.
6. The Amilitary police are responsible for actual policing and preservation of public order. Their primary occupation is daily patrols and the pursuit of criminals. Regarding subordination, both the civil and Amilitary state police report to the Governors of the states, the Federal District, and the territories. (Art. 144.6 of the Federal Constitution). The states Chief of Police is the Secretary of Public Security, who directly assists the Governor and is responsible for any acts of law enforcement and crime prevention in the course of duty.
7. The civil police function as state judicial police and investigate criminal offenses, with the exception of military offenses and those under the jurisdiction of the federal police.
8. For years the Commission has been receiving reports from government agencies, the press, and nongovernmental organizations of the violent actions of the state police, especially the Amilitary police, who are accused of using violence both on and off duty. One argument commonly used by the military police in response to the accusations leveled at them concerning numerous deaths they cause, is that fatalities occurred in legitimate self-defense or in strict compliance with their duty.(2) Though it is true that violent crime is prevalent in many states, there is evidence that the reaction of the police not only exceeds legal and regulatory limits, but that police officers often use their power, organization, and weapons to engage in illegal activities. The Commission also wishes to note that efforts are being made by federal and some state governments to correct these excesses and violations, in general, at the initiative and with the support of organizations in civil society.
9. In 1994, partial data for 14 federal states in Brazil showed that there were 6,494 homicides overall, with liability determined in about half of them. Of this latter number, 8% were attributed to Amilitary police and another 4% to Adeath squads. A state-by-state profile of the accused presents major differences: responsibility is attributed to the police in 17% of the cases in Alagoas; 6-9% of the cases in Amazonas and Amapá, Minas Gerais, Pará, Paraíba, Pernambuco, Rio de Janeiro, and Rio Grande do Sul; and in 5% or less of the cases in Ceará, Espíritu Santo, Goiás, Rio Grande do Norte, Roraima, and Sergipe.
10. However, these percentages are greater if all types of police, private guards, and extermination groups are included. For example, in the state of Pernambuco, of the 1,176 persons accused of homicide during the period January 1994 to October 1995, 215 (18.3%) were police officers and another 154 (13.1%) were members of extermination squads.
11. According to reports, a large number of these deaths are not caused by the action of the police in the strict performance of their duty but are often related to the so called Aextrajudicial executions, which occur as a result of the participation of members of the state police in extermination squads that kill even adolescents and children. In the case of deaths caused in the line of duty, according to surveys by the police themselves, the lack of professional training plays a significant part.
12. The Parliamentary Commission on Investigation of the assassinations of children and adolescents in Brazil concluded that the Amilitary police were responsible for a large number of crimes of this type. The Commission also concluded that the police who were accused of having committed these crimes found support in various quarters, ranging from inadequate police investigations to an indulgent military justice system.
13. The explanations given by the authorities about these cases clearly show that, despite the radical political changes in the country since the end of the military government, the Amilitary police continue to follow the repressive strategy of that government, which instructed police officers to use violence to prevent or eradicate any movements then thought to be subversive. Thus, many Amilitary police currently commit abuses in the performance of their duties, evident even when the examination of victims show that they sustained fatal wounds to such areas of the body as the ribs, clearly indicating that they had not attempted to resist, and in many cases were unarmed.
14. In Brazilian cities, the police authorities point to crime as one of the causes of police violence. However, the Commission observed that not all the victims of abuses committed by the police are connected with the world of crime.
15. The Government maintains that, after a number of flagrant incidents of brutal abuses, ranging from the mistreatment of prisoners to participation in death squads, the Federal Government and some state governments have launched vigorous programs against the action of the police and extermination squads. In addition, since 1993, the Federal police have been conducting a special investigation into police misconduct. In the state of Rio de Janeiro alone, 131 members of death squads have been tried in recent years (1994 and 1995), 64 of whom were imprisoned at end 1995. They have also been expelled from the police force.
16. According to informed opinions, the excesses currently committed are not related to Apolitical crimes, but to common crimes which, in the minds of some police, and even civilians, are associated with stereotypes of Ablacks, Aunemployed, Apoor, Astreet girls, or Astreet boys.(3)
17. Police violence against children, especially street children, seems particularly vicious in some states. In Bahia, for example, the Legislative Commission on Human Rights held hearings on this in April 1995 and received information about five massacres attributed to the state Amilitary police, three of which involved children.
18. In 1994 a young man in Manaus, was shot by the police who confused him for someone involved in a brawl. The victim was paralyzed. The police responsible for the attack is under judicial process, but meanwhile is free and no administrative punishment was established.(4) Cases like this occur frequently. It is also common for police who commit abuses to at times receive awards from the police corps for such exemplary action. The Commission was informed that the police authorities in some Brazilian states publicly support police violence, as evidenced in some Sao Paulo publications in November 1996. The Commission is concerned about this as it would not only be an incentive to police violence but would legitimize institutional violence.
19. There even cases in which police officer who have victimized suspects have been rewarded and promoted. A well known case is of a corporal previously accused in 49 assasinations, that after allegedly executing a suspect was elected as AOfficer of the Year and condecorated.(5) Moreover, the Colonel who gave the medal to this corporal is himself accused of 44 murders in his 24 years of police service.(6)
20. Official "military" police statistics show that between 1988 and 1992 the following civilian deaths were caused in Amilitary police operations: 294 in 1988; 532 in 1989; 585 in 1990; 1,074 in 1991; and 1,470 in 1992.(7) In 1994 the "military" police killed 522 persons and, in the first three months of 1995 alone, they killed 136 civilians.(8) These indices spiraled from 1988 to 1993. The situation was reversed in the metropolitan area of Sao Paulo where the number of civilian deaths at the hands of the "military" police has been declining since 1993, after the massacre of the inmates in Carandirú. In 1992, 1,190 civilian deaths were caused by the police, which was more than the total of 1,015 for the four previous years. In 1996, the figure fell to 106 civilian deaths as a result of police action.(9)
21. Whereas the situation in terms of numbers of deaths by the police seems to be improving in Sao Paulo, an alarming phenomenon has been occurring in Rio de Janeiro since May 1995, when the new Secretary of Public Security took office. Since then to February 1996, the number of deaths by the "military" police per month has risen from 3.2 to 20.55, giving a total of 201 in 1996. One third of the deaths were caused by the Ninth Battalion, which covers many slum areas.(10)
22. The Commission is struck by the fact that, although the number of injured is usually far greater than the number of deaths in armed confrontations, during this period in Rio de Janeiro, the number of civilian deaths in confrontations with the Amilitary police was three times the number of persons injured by them. This is evidence of the use of excessive force and even shows a pattern of extrajudicial executions by the Rio de Janeiro police. These attitudes have had an impact on the population's confidence in its police force--key to the rule of law--, which is at a very low ebb in Rio. In 1995 and 1996, only 12% of persons robbed reported the incident to the police. This lack of trust is more marked depending on social status; one in three robberies was reported in high-income sectors, as opposed to only one in ten in low-income sectors.(11)
23. Cases of extrajudicial executions by the Amilitary police occur not only in the course of duty but when they are off duty. These cases are reported daily by local and international sources and, in the Commission=s opinion, show an alarming pattern of behavior that warrants special attention.
24. For this reason, some of the many cases reported by local and international sources in the period covered by this report (1988-96) are cited, not so much to confirm each and every one of the events described, but to illustrate the existing pattern of violence.(12) The cases involving violence in general will be mentioned in this part of the report and those involving violence against minors will be discussed in the chapter on extrajudicial executions of children and adolescents. Some examples will also be cited under the heading ADeath or Extermination Squads.
Difficulties in Investigating Police Violence
25. The Commission has found that, when the authorities decide to investigate cases of police violence, they encounter great difficulties in gathering evidence to identify the persons responsible for the human rights violations,. One reason is the misplaced esprit de corps of the police, who cover up the violence perpetrated by their members by obstructing justice. The Commission received reports, for example, that torture is commonly used by state police as a method of investigation. According to these reports, when the authorities wish to verify the reports of torture, the court orders are obstructed and even disobeyed.(13)
26. Another obstacle faced is the fact that in Brazil the so-called Alaw of silence prevails; eye witnesses refuse to clarify the circumstances of events they witnessed for fear of possible reprisals. The fear of reprisal is so great that often even the victims of police violence themselves prefer not to speak to avoid retaliation. In Brazil, there is still no effective witness protection system, though it is beginning to be implemented, as indicated later on.(14)
27. The fear of testifying is understandable when witnesses= lives are threatened for breaking the Alaw of silence. What happened on November 6, 1994 to young Eduardo de Araujo, aged 14, a survivor of the Candelaria assassination, is an example of this. The young man was shot and killed by two men who passed by his house every day firing into the air. On the day of the assassination, the men repeated their routine but made him run, thereby transforming him into a moving target.(15)
28. On the other hand, when a witness is prepared to collaborate with the justice system to identify criminals, the judicial process is so slow that months without protection may go by before the witness is called to testify; this discourages collaboration. This was the case of Wagner Dos Santos, a 23-year-old car washer and principal witness in the Candelaria killings, who was also attacked. After the killing, Santos moved to Bahia for protection but, 15 days before returning to Rio de Janeiro and while he was living in a witness protection house, under the protection of the justice system guards, there was a second attempt on his life by the Amilitary police involved in the killings.(16)
29. The police=s mistrust of the marginal population and their lack of respect for the law result in the population also mistrusting the police. Though this level of mistrust is not the same in every state, it is very high in most of them, reflecting the prevailing climate of insecurity , which is conducive to human rights violations. In the state of Bahia, for example, surveys in 1995 reveal that 85% of the population does not trust the Amilitary police and that 82% does not trust the civil police, in view of which the legislature has established a Parliamentary Investigation Commission. These figures confirm the figures given earlier for Rio de Janeiro.
30. The government of the state of Pernambuco took an important step to remedy this situation by signing an agreement with the people=s organization legal advisory office (GAJOP), a nongovernmental organization. The project, known as PROVITA, is aimed at instituting a program to support and protect witnesses and victims of violence. It consists of joint action by governmental agencies and entities, as well as persons in civil society to provide psychological support services to victims of violence. It also targets the establishment of proper facilities for the protection of threatened witnesses. Under the agreement, which is in the initial stage of implementation, there are already 25 witness protection facilities in different regions of the state, showing how seriously the state government is taking this initiative by civil society. A similar agreement was entered into by the Ministry of Justice and Viva Rio, an NGO of the State of Rio. Also underway is a program at the Crime Victim Care Center (CEVIC) which aids victims through legal and psycho-social assistance.
31. The Commission hopes that the agreement will yield the expected results and that the example of Pernambuco will be followed by other state governments, since the witness protection bill dates back several years, having been proposed in 1993 and resubmitted to the congress in 1996 by the executive branch to study it regarding any incompatibility between its provisions and the existing Brazilian legal structure. That notwithstanding, the Commission is pleased to note the government=s interest in having the states establish their own witness protection programs, as stated in the National Human Rights Plan (PNDH) as a short-term goal.
32. The Commission must stress the adverse consequences of this lack of control of the crime situation by the forces of law and order, who themselves act unlawfully and contrary to the regulations: the loss of the public=s confidence in the rule of law, and uncontrolled attempts to respond to the situation.(17)
33. Some Stats have taken laudable initiatives to reduce police violence. One such initiative is in the same state of Bahia, whose Parliamentary Commission began holding public meetings in 1994 in schools in poor areas, to discuss incidents of police violence in the presence of representatives of the police, local organizations, and parliamentarians.
34. Another example is the Community Centers for Citizen Defense, launched by the Secretariat of Security in Rio de Janeiro, which combine civil and Amilitary police with other government services, such as the fire department, disaster assistance, and youth programs. This Secretariat has also started to train its staff at the university in law and order, human rights, and sociology. Of equal importance is the role of police ombudsmen, examined at the end of this chapter
35. At federal level, legislative initiatives have been taken to combat impunity, especially that involving police accused of human rights violations:
a) Law 9455/97, which gives a legal description of the crime of torture and sets severe punishments for it, as the 1988 Federal Constitution allows;
b) The draft sent by the Executive to the National Congress in April 1977 for the purpose of simplifying the procedures for taking testimony from eyewitnesess in criminal cases.
B. DEATH SQUADS
36. The death or extermination squads were established by former police officers to fight crime. In Rio de Janeiro, for example, the first groups of this kind were established around 1950. Their members were known as "justicieros" (vigilantes).
37. An investigation carried out in 1991 showed that 27% (8,000 police officers) of the Rio de Janeiro police force had been invited, at one time or another, to join these groups.(18) According to a survey in Rio de Janeiro and Sao Paulo, in 1996, 76% of the persons surveyed said that they believed that death squads formed by police officers did exist.(19)
38. The report of the Parliamentary Investigation Commission (CPI) of the Rio de Janeiro Legislative Assembly on the extermination of minors has identified 15 extermination squads in the state. In 1994, these groups were active in the municipalities of Duque de Caxias, Nitérói, and Barras Mansa.(20) Reports submitted to the CPI of the National Congress show that there were 30 extermination squads in the state of Pernambuco that year.(21) Also in the states of Espíritu Santo and Minas Gerais there were vigilante squads formed by the civil and Amilitary police (PM).(22)
39. The composition of the extermination squads varies. Sometimes they are made up of off-duty police officers,(23) who join these groups as a means of augmenting their low incomes. Sometimes they are made up of police officers expelled from the force because of their criminal activity. In the case of both the police officers in the service and those who were expelled, participation in death squads represents a means of making a living. Sometimes the groups comprise individuals hired as security guards by small merchants fearful of holdups.(24) Some groups have little to do with organized crime but control a particular area to guarantee the safety of the persons living there.(25) Others are members of criminal organizations, some sophisticated some not, involved in drug trafficking and other illicit activities.(26) Though the members of the squads begin their activities as actual guards, their contact with delinquents frequently draws them into drug trafficking and various criminal activities, such as extortion.(27)
40. The death squads exterminate adults, adolescents, and small children alike. The adult victims are usually members of the crime world. The children and adolescents are usually poor and perceived to be a threat to society. At times these adolescents and small children make deals with the police or with organized crime and are executed extrajudicially when these deals fail.(28)
41. According to the figures of the Center for Reporting Extermination Squads, established by the government of the state of Rio de Janeiro, of the 159 persons arrested between April 1991 and June 1993 for their involvement in this type of activity, 53 were Amilitary police officers.(29)
42. To understand the psychology of these squads, one of the so-called vigilantes could be quoted: "the police cannot patrol every neighborhood or every street.... Meanwhile, crime continues to rise and the number of undesirables multiplies....We establish order."(30)
43. It is said that local politicians (mayors, municipal councillors, state and federal congressmen) frequently support death squads and often use the vigilantes' control over the local population to obtain votes or intimidate opponents. At the same time, it is alleged that some individuals who have been on trial for being members of these groups work openly with some local politicians. Anyone opposed to the control exercised by the vigilantes in their respective neighborhoods risks his/her life; it is also very risky to report them to the police. Thus, between 1991 and 1993, in the area of Rio de Janeiro alone, extermination squads executed 31 community leaders.(31)
44. In the state of Rio Grande do Norte, allegedly members of the police ended the life of attorney Francisco Gilson Nogueira de Carvalho early in the morning of October 20, 1996. Nogueira de Carvalho was the attorney for the victims of police violence and an assistant in the Justice Ministry in cases that exposed an extermination squad known as the Agolden boys inside the state civil police force. The assassinated attorney also exposed the fact that the authorities connived with the perpetrators of the crimes, since the corresponding investigations into the deaths caused by the police were never brought to trial. The Special Commission created for that purpose by the Attorney General=s Office found that the police force in question had been involved in more than 30 deaths. The federal authorities, who knew about the threats on the life of Attorney Nogueira Carvalho since 1995, had placed him under federal police protection. The alleged mastermind behind this crime, the former Deputy Secretary of Public Security of the State of Rio Grande do Norte, was removed from his post.
45. In the state of Pernambuco, a Parliamentary Investigation Commission, created by the state legislature, found 30 extermination squads, many of them operating with police collaboration or participation.
46. According to reports, in many states in Brazil (Acre, Amazonas, Alagoas, Espiritu Santo, Minas Gerais, Mato Grosso do Sul, Pará, Rio de Janeiro, Sergipe, etc.), Adeath squads have acted with impunity, eliminating poor youth and suspected criminals in urban areas and community and labor union leaders in rural areas.(32)
Impunity of "extermination squads"
47. These squads operate with impunity,(33) mainly due to threats, witness and prosecutor intimidation, the inadequacy of investigations to bring their members to trial, and the inefficiency of the judiciary in sentencing them.(34) Furthermore, their operations are in part tolerated by the public, which often considers them a "crude" form of administering justice to compensate somewhat for the inefficiency of the judiciary in combating violence.(35) It is also alleged that they sometimes operate with the consent of the local police authorities, who make little or no attempt to stop their activities, either because they are involved or because they feel that the extermination squads help to get rid of criminals, drug traffickers, and other "undesirables."(36)
48. Interviews with Amilitary police reveal the apparent motives for police violence. The main argument for killing criminals instead of detaining them is that this a more effective way to fight crime. According to those interviewed, it is a means of avoiding handing over suspects to the civil police, who allegedly accept bribes and are inefficient in handling investigations.(37)
49. Indeed, the ratio of crimes committed to investigations completed and trials conducted shows that impunity is very real. In the state of Pernambuco, for example, between January 1986 and June 1991, there were 460 homicides of youths 18 and under. Of that figure, 118 cases were tried. In the first 10 months of 1994 there were 114 assassinations of small children and adolescents and, according to data from the Secretariat of Security, only 16 investigations were opened.
50. In the state of Rio de Janeiro, data from the Institute of Religion conclude that of 3,450 homicide investigations, 92% of the cases went unpunished. Of 500 cases, only 7.8% were brought to justice. According to the Brazilian Institute for Social and Economic Analysis (IBASE), in a study on investigations of 306 homicides of small children and adolescents in Rio de Janeiro in 1991, there was sufficient evidence to prove the guilt of the perpetrators in most cases yet, almost a year after the start of the investigations, the cases were abandoned and dozens of them could not even be located. The study concluded that the poor process of the investigations is due to a lack of interest on the part of the police and the public prosecutors.(38)
51. Another phenomenon observed in Brazilian cities is lynching. It is a widespread and a regular event and might be triggered by any number of events from mere shoplifting by an adolescent to rape. It appears that the occurrence of lynchings, like death squads, is due to the lack of a functional and effective police system, and the fact that the public does not believe in the effectiveness of the justice system. Lynching could also be cited as another cause of police violence, because the police may commit abuses to prevent the public from conducting lynchings. In practice, violence by members of the police force would always be less reprehensible, in the eyes of police officers, than the violence committed by the general public in lynchings.
52. It should be noted that, in cases where the public attempts a lynching, the police intervene to prevent the attempt from succeeding by taking the victim away to a safe place. Upon examination of the 213 cases in which lynching was prevented, the police took direct action in 54.9% of them, showing their effectiveness in preventing this type of crime.(39)
C. IMPUNITY OF THE POLICE
Internal and External Police Control Systems
53. State police action is internally controlled by the Police Corrections Offices of each state, whose basic function it is to monitor and inspect the regularity of the services provided by the civil and Amilitary police of each state and to verify, through the representative designated by the Secretariat of Security, the irregularities involving both civil and Amilitary police, indicating the applicable penalties and conducting the proper administrative procedures.
54. The Commission notes the action taken by some Corrections Offices of Public Security Directorates in compliance with their difficult task of internal control. To give an idea of this task, data from the Corrections Office in the state of Pernambuco could be cited. In 10 months in 1995, 435 reviews were initiated and 265 completed. Of these, 46 were administrative procedures, stemming from criminal offenses (14 for bodily harm caused by police officers). The result was that 1 delegate, 2 commissioners, 1 scribe, and 10 officers were dismissed, in addition to 7 other administrative penalties. This program complements the Pernambuco Security Secretariat program for the protection of witnesses, family members, and victims of the type of violence described.
55. The Commission also points out that just recently, in 1995, the first police ombudsman=s office was established by decree in the state of Sao Paulo, and headed by a representative of civil society. Its purpose is to enhance internal controls of the actions of the state police. According to official data, the Sao Paulo Ombudsman=s Office received 1,134 cases in its first six months of operation and solved 34% of them. Of all the cases, 64% concern improprieties by the civil police of Sao Paulo and 36%, improprieties by the Amilitary police. Almost 10% of the complaints against the Amilitary police in 1996 referred to homicides with the alleged involvement of Amilitary police. Of the total, some 100 complaints (approximately 10%) report abuses of authority and torture. The Ombudsman=s Office has drawn up a draft bill seeking institutional autonomy and independence as an initial step toward consolidating the first Brazilian experience of the police ombudsman. The auditing of the São Paulo Police en 17 months of activities requested the punishment of 420 police members.
56. The federal government included the establishment of police ombudsmen=s offices as one of the measures to be implemented through the PNDH. In addition to the Ombudsman=s Office in Sao Paulo, the federal district also has one, and the states of Minas Gerais, Pernambuco, Bahía and Pará are establishing their own under state law. The existence and action of the Ombudsman=s Office of the state of Sao Paulo is being widely publicized by the state government and access to this agency is being facilitated, to encourage the public to report the abuses committed by the Amilitary and civil police. The Commission calls attention to the coincidence of the establishment of this office and the noticeable decline in the deaths caused by the police in Sao Paulo as priorly stated in this chapter.
57. External controls of the action of the civil and Amilitary police are within the purview of the Ministry of Justice (Article 129.VII of the Federal Constitution) and the judiciary. Characteristic of its establishment under the military regime, the state Ministry of Military Justice is responsible for initiating criminal action in the military justice system and has other functions, such as opening Amilitary police investigations and exercising external control of Amilitary police activity. This, in the Commission=s opinion, is a critical failure of the system of guarantees of police action, because it wrests control of common police actions (by Amilitary police) from the civil justice ministry when the Amilitary police are precisely the ones accused of most human rights violations.
58. Regarding effective control of police activities, the importance of the agency designated to conduct forensic examinations should also be stressed. The Institute of Forensic Medicine, a part of the civil police force, often issues inaccurate expert determinations. As these expert reports tend to establish the liability of police officers in deaths or injuries, it is fundamental that the agency not be connected with the police force but with the scientific or forensic medicine departments of universities or other institutions, to guarantee its strict professionalism and independence.
The state military justice system as the exclusive jurisdiction for trying members of the "military police"(40)
59. At the initiative of the National Secretary of Human Rights, Dr. Jose Gregori, a working group was established to study reform of the public security system in Brazil. A proposal that is being studied deals with establishing a national agency with prerrogatives that include inspection of public security forces. The objective of the group is to define the role of the security forces in the context of democracy and the state of law, so as to make Brazilian police agents prime movers in promoting fundamental rights and freedoms.
60. The state military justice system has the authority to try and judge members of the Amilitary police accused of committing crimes, defined as military crimes, against the civilian population. This jurisdiction is governed by military criminal law (Military Penal Code, CPM), exclusive to military personnel, which contains substantive penal standards and constitutes Aa set of legal provisions to ensure the accomplishment of the main purposes of military institutions, whose primary objective is the defense of the nation. In this jurisdiction, Arank and discipline prevail.4(41) It is also regulated by the Code of Military Penal Procedure (CPPM), which contains formal or procedural provisions. The new law 9299/96 places under ordinary penal jurisdiction cases of attempts on life with criminal intent, but maintains intact the rest of the jurisdiction of the military justice system with regard to the police.4(42)
61. This is a special legal system, with its own principles and guidelines, in which most of the provisions apply only to military personnel and civilians who commit crimes against military institutions, unlike the ordinary penal system, which is applicable to all citizens.4(43)
62. Article 125.4 of the Federal Constitution establishes that:
The state military justice system has the authority to try and judge Amilitary police officers and military firemen for the military crimes defined in the law....
63. The definition is given in the Military Penal Code which, in Article 9.II(f),4(44) states:
Article 9. The following are considered to be military crimes in times of peace:
II. The crimes contemplated in this code, provided that the definition thereof under ordinary penal law is the same at the time of commission:
f) use by military personnel and the like, in active service or otherwise, of weapons owned by the military or any wartime equipment in the custody of the military or under its inspection or administration, to commit an illegal act.
64. In accordance with the above provision, the Amilitary police forces (federal, state, and in the Federal District), which are the state corps responsible for crime prevention and law enforcement vis-à-vis civilians, are subject to military penal legislation and the military courts, even when they commit crimes against civilians in the line of duty or using weapons belonging to the police corps. This jurisdiction was limited by law 9299/96 but, as shown below, this limitation does not effectively eliminate the impunity derived from this exclusive jurisdiction.
Background of the exclusive military jurisdiction for the trial of military police
65. Up until 1977, the prevailing opinion was that crimes committed by Amilitary police in the line of duty were civil in nature and, therefore, within the jurisdiction of the ordinary justice system.4(45)
66. Constitutional Amendment No. 7 of 1977--amending Article 144.1(d) of the Constitution--, known as the "April Package" under the military regime of that time, made it possible to establish special state military justice to try and judge Amilitary police officers for military crimes defined in the law.4(46) The Federal Supreme Court then changed the criteria and began to consider that the state military justice system did indeed have the jurisdiction to try the Amilitary police for crimes defined in the Penal Code, when committed by them in the line of duty.4(47)
67. This fundamental change in the jurisprudence of the Federal Supreme Court resulted in an increase in the crimes committed by Amilitary police with impunity.
Impunity resulting from the exclusive regime for trial of "military police"
68. In January 1983, a report on the performance of the state military justice system since Constitutional Amendment No. 7 was published, indicating that:
...the military justice system began to receive all the cases (referring to Constitutional Amendment No. 7 of 1977), thereby magically absolving soldiers and officers of murder. As a result of this impunity, almost 400 men died last year, all of whom were not criminals; the vast majority of the victims are young people and children with one or two violations on their records and poor people in outlying areas, coming from the most impoverished segments of society.... (Underlining by the Commission).4(48)
69. Despite the progress made, the 1988 Constitution maintained4(49) the police organization of the military governments, the militarized concept of public security, and the exclusive jurisdiction for judging ordinary crimes committed by Amilitary police in the line of duty. One could say that the Constitution maintained an exclusive regime that reaffirmed the transfer of trials of Amilitary police to the jurisdiction of the military justice system and kept them in the same state of quasi-impunity as Constitutional Amendment No. 7, issued during the military dictatorship.
70. To understand the reasons for this impunity, it is important to analyze some aspects of the structure of the military justice system in Brazil.
71. The federal military justice system and that of the federated states are similarly structured. Criminal offenses are divided between military ombudsmen=s offices, the forums of preliminary proceedings in the military justice system and which correspond to the criminal courts (varas criminais) in the ordinary justice system. The military ombudsman=s office comprise a collegiate body of one judge-ombudsman and one council of justice.
72. The Council of Justice holds special sessions of preliminary proceedings to judge the accused. It currently comprises four military officers in active service and one civil judge-ombudsman. The president of the council, chosen on the day set for sentencing, must be a military officer of the highest rank (law 8457/92, Art. 16).
73. The judge-ombudsman is the only official who is not a member of the military corps. The judge must be an attorney elected by competitive examination, open to the public. The judge-ombudsman has the authority to admit a suit filed by the plaintiff and to proceed to initiate criminal proceedings, ruling on points of law which would otherwise not be properly handled by the military judges, who are usually not attorneys.
74. In the federal sphere, the decisions taken by military ombudsmen may be appealed before the Military High Court (STM). This is a collegiate appellate body comprising 15 members, namely: 4 officers-general of the army, 3 officers-general of the navy, and 3 officers-general of the air force. All these officers must be in active service and be appointed by the President of the Republic after hearings in the Federal Senate. The Military High court also comprises 5 civilians, of which 2 must be judge-ombudsmen, and the others renowned legal experts aged over 35.
75. In addition to hearing appeals, the Military High Court has the authority to reestablish military jurisdiction in the event that it was infringed by the lower court judge (in the ordinary justice system). To this end it has the authority to remand the case to a higher court (law 8457/92, Art. 6.IV). If the criminal court judge in the ordinary justice system tries a military officer for an common crime, the process may be referred to the military justice system for ruling by the Military High Court.
76. The Constitution authorizes the federal states, with a Amilitary police force of over 20,000, to establish their second military appellate body, at the initiative of the Court of Justice, namely the Military Court of Justice. This type of court currently exists in the states of Sao Paulo, Minas Gerais, and Rio Grande do Sul.5(50)
77. Military court cases are often delayed on for years,5(51) due to the heavy workload,5(52) the scarcity of judges and prosecutors, excessive red tape, delays, etc. The Commission has found that the courts tend to be indulgent with police accused of human rights abuses and other criminal offenses, thereby allowing the guilty to go unpunished.
78. In this climate of impunity,5(53) which breeds violence by the Amilitary police corps,5(54) the police officers involved in this type of activity are encouraged to participate in extrajudicial executions, to abuse detainees, and to engage in other types of criminal activity. The violence has even spread to the prosecutors who, when they insist on continuing investigations into the crimes committed by the Amilitary police, have been threatened and even subjected to death threats. It is also not uncommon for witnesses summoned to testify against police officers on trial to receive intimidating threats.5(55)
79. In a letter addressed to the Commission in 1996, the Santo Dias Center stated, in this regard:
In military investigations (inquiries), officially carried out by the organs of military justice, the bias in favor of incriminated police officers in most cases is so flagrant that it turns the victims into criminals. It is also very common to intimidate witnesses, whose court depositions are taken in the presence of the accused police officers. Under such conditions, it is not surprising that so many investigations are dismissed on grounds of insufficient evidence.... If this stage is completed and charges actually filed or admitted, new difficulties arise in the proceedings, which are deliberately slow and plagued with delays: deferred establishment of the councils, repeated postponements for minor procedural problems, etc. (Underlining by the Commission).
Thus, it is not surprising to find proceedings5(56) dragging on for four or five years or indefinitely, allowing enough time for the events to be forgotten by the press and the public. After such a long time, the victims' families lose hope, witnesses move away, and the evidence disappears.5(57)
80. Reliable sources report that in São Paulo alone, where 1,470 civilians were killed by the Amilitary police in 1992, the military courts eventually absolved almost all the Amilitary police officers tried.5(58) A study5(59) conducted in São Paulo entitled "Military Police (PM) Involvement in Crimes becomes Routine in Espiritu Santo", found that in an 18-month period, 143 cases had come before the state military courts and that in 92% of them the police officers had been found not guilty.6(60)
81. Meanwhile, the limited number of prosecutors responsible for numerous cases of violations presumably caused by the Amilitary police poses a serious problem. In the state of Sao Paulo, for example, there were 14,000 pending cases of all kinds in the military justice system in 1992, but only four prosecutors were handling these cases, meaning that each prosecutor had 3,500 cases.6(61)
82. AMilitary police violence and impunity have given rise to several congressiona initiatives designed to suppress the special military jurisdiction for judging the crimes committed by Amilitary police in the performance of their public order functions. One of them is the bill submitted by congressman Hélio Bicudo, 6(62) which returns to ordinary jurisdiction the trial of crimes committed by or against state Amilitary police officers in the line of duty. This bill proposes that Article 9.f of the Military Penal Code (decree-law 1001 of October 21, 1969) transcribed above be repealed and the following sole paragraph included:
AOfficers and enlisted members of the Amilitary police of the states in the line of duty are not considered to be Amilitary personnel in criminal matters but are under the jurisdiction of the ordinary justice system for trial and judgement of crimes committed by and against them.
83. This bill evokes the concept of Summing Up No. 297, by returning to the sphere of ordinary jurisdiction the judging of crimes committed by the Amilitary police in the line of duty. The bill was not approved in its entirety but, with the backing of the pro-government faction in the senate, a new bill was approved despite the fact that President Cardoso had already endorsed the original bill. The President enacted the substitute bill on August 7, 1996 (law 9299 of August 7, 1996). Law 9299 amends Article 9 of the Military Penal Code (decree-law 1001) defining military crimes. The new Asole paragraph of this provision establishes:
The ordinary justice system shall have jurisdiction in the crimes discussed in this article, when they constitute criminal attempts on life committed against civilians. (Underlining by the Commission).
84. This means that the Amilitary police will continue to be judged by special jurisdiction for crimes against humanity, such as criminal homicide, bodily injury, torture, kidnapping, illegal imprisonment, extortion, and battery.
85. Another serious limitation was placed on the bill during the debate in the lower house. A section of Article 82 of the Code of Military Penal Procedure was amended to read:
In crimes with criminal intent against the lives of civilians, the military justice system shall send the reports of the Amilitary police investigation to the ordinary justice system. (CPPM, Art. 82.2).
86. Investigations (inquiries) will then be the responsibility of the military authority, even in cases of criminal attempts on life, despite the fact that, under the new law, these crimes would fall under the jurisdiction of the ordinary justice system. This new standard is in contradiction with Article 144.4 of the Constitution, which assigns judicial police functions and the investigation of criminal offenses, other than military offenses, to the civil police. Indeed, if criminal attempts on life cease to be military offenses under the new law, the criminal investigation should be handled by the civil police who, pursuant to Article 144.4 of the Constitution, have Athe functions of judicial police and the investigation of criminal offenses. By leaving the initial investigation in the hands of the Amilitary police, the latter are given the authority to decide, from the outset, whether or not there is criminal intent. This means that law 9299 of the Republic is incapable of significantly reducing impunity.
87. The National Human Rights Program presented by the government of President Fernando Henrique Cardoso establishes as one of its short-term goals the following:
To confer on the ordinary justice system the authority to try and judge the crimes committed by Amilitary police in the line of duty or with police weapons, in support of a specific bill already approved by the lower house.
88. The Aspecific bill already approved by the lower house refers to the bill submitted by representative Hélio Bicudo, which had been approved by the lower house before being referred to the senate and replaced by the substitute bill that was finally approved.
89. The substitute bill met with rejection and a campaign to revive the original text was started. This movement was launched on May 14, 1996 at a meeting of the National Forum Against Rural Violence 6(63) and the Congressional Human Rights Commission.
90. In July 1996, the original bill was resubmitted to the congress, this time as bill No. 2190 of 1996.In this Commissions opinion, the approval of this bill, which coincides with one of the short-term goals of the National Human Rights Program, would be key in combating police violence. If approved, Amilitary police in the line of duty would cease to be military personnel for criminal purposes and the military justice system would no longer have the authority to judge the ordinary crimes committed by and against them. This would apply to Aall ordinary crimes, not only those with criminal intent, as is the case with the recently approved law 9299. In addition, as the program under reference states, the law should include the crimes committed by Amilitary police Ausing police weapons, to ensure that Amilitary police committing crimes with police weapons are also judged by the ordinary criminal justice system. The Commission also believes that it should be clear that the police investigation is to be handled by the civil police, in accordance with Article 144.4 of the Federal Constitution.
91. The Commission notes, with satisfaction, the efforts by the current federal government and some state governments to combat violence and the impunity of the members of the state police. Federal efforts are visible mainly in the preparation of the National Human Rights Program, which provides very important measures for curtailing violence.
92. The Commission hopes that the measures proposed by the PNDH will be written into law shortly, with a view to ending human rights violations. It was pleased to note the approval of law 7865-96 instituting the National Weapons System, which establishes conditions for registration, and defines crimes due to the improper use of weapons by civilians or the security forces. It also hopes that the subsequent measures envisaged by the PNDH will be approved on schedule and fully implemented.
93. The Commission notes its concern about the violence described, recognizing that although there is a high incidence of crime in Brazilian cities, this cannot be used as justification for the police to act unlawfully, nor can it accept the existence of another legal power parallel to the government, which administers its own justice, at its own discretion, and outside the law. The police must guarantee the security and respect of human beings and be respected for that and not for the fear they instill. Police violence is a scourge on the force and prevents its members from excelling by distorting their functions.
94. The Commission also observes that the impunity of crimes committed by state Amilitary or civil police breeds violence, establishes perverse chains of loyalty between police officers out of complicity or false solidarity, and creates circles of hired killers, whose ability to terminate human life is at the service of the highest bidder.
95. In view of these facts, the Commission makes the following recommendations; that for the most part are in line with the efforts of the Brazilian Government and with the intentions of the PNDH:
a. Establishment of a special permanent commission to investigate possible extermination squads and Avigilantes.
b. Better inspection of the work of police forces, with effective external controls. In addition to the criminal process, the authorities should conduct rigorous internal inspections to identify and discipline police officers who commit violations or fail to take the appropriate measures to prevent or report the criminal conduct of other police officers. Officers accused of homicide should be transferred to positions in which they do not use firearms until they prove their innocence. The reform of the Brazilian public security system now under study shold focus on this matter.
c. The authorities should take measures to ensure that police officers use lethal force only as a last resort to protect life, not for eliminating persons seen as undesirable or merely suspicious, and without risking the lives of others.
d. Changes in the investigation process so that the members of a police division or district are not appointed to investigate abuses by members of the same division. Also, the victims or their representatives should have access to the records of investigations and kept informed of the status of their cases against police officers accused of human rights abuses, in a manner consistent with the efficacy of the investigation and the rights of the accused police officers.
e. Preparation by the Public Security secretariats of the states of policies to provide incentives for police officers who perform their duties in an exemplary fashion, involving monetary rewards, benefits for their families, and promotions. Creation of specific courses on human rights for police officers in active service,6(64) and training in tactics and skills that minimize the number of victims of police acting legally in the line of duty. Equipping of the police with the required, modern infrastructure. Appropriate compensation for police officers, to afford them a decent standard of living and guarantee the quality of the services they provide to the community.
f. Legal punishment for police officers responsible for crimes, acting in the line of police duty or otherwise. Publication of the penalties imposed on police officers to rid the public of the notion that the police are above the law and to make data on homicides committed by the police available.
g. Establishment of a standard amending the constitutional provision that guarantees the job security of civil servants because this prevents the dismissal of police officers committing excesses.6(65)
h. Implementation of a national program to protect witnesses, changing their identities and permitting them to move to other areas of the country and preparation of special procedures allowing the use of filmed or taped testimonies to accelerate investigations and protect the witnesses from direct confrontation with their aggressors.6(66)
I. Conferring on the ordinary justice system the authority to judge all crimes committed by members of the state Amilitary= police.6(67)
j. Transferring to the jurisdiction of the federal justice system the trial of crimes involving human rights violations, with the federal government assuming direct responsibility for initiating action and due process for such crimes.6(68)
1. As a reminder that it is not a military police force per se and that it reports directly to the executive of each state, it will appear in inverted commas in this report. Although the members of the Amilitary police perform civil functions and are subordinate to the Governor of the state, they are called state military servants, despite the fact that they do not have a typical relationship with the armed forces, which are federal and under the command of their Commander-in-Chief, the President of the Republic. The Constitution establishes that these state police shall also act as auxiliaries and reserves of the army to ensure public order and social peace under threat (Art. 144.6 and Art. 42 of the Federal Constitution). Calling the police in charge of public security Amilitary really originated with the military governments, when the police were under the direct control of the armed forces. This direct subordination was removed when the Political Constitution was reformed in 1988, at which time they were placed under the constitutionally elected state civil authorities.
2. Gazette of the National Congress (Section I), December 1992, Terça-Feira 11, 25433. Grounds for Bill No. 3322 of 1992, submitted by Dr. Hélio Bicudo and Dr. Cunha Bueno.
3. HÉLIO BICUDO, Un Brasil Cruel y Sin Maquillaje, São Paulo, Ed. Moderna, p. 68 (1994).
4. In Manaus, on December 24, 1994, 19-year old Jelson Silva Lima was returning home with his girlfriend after having visited some friends when he as assaulted by Amilitary police in a squad car, who began hitting him in the ribs. They then ordered him to get up and run. When he did as he was told, he was shot in the spine, and, falling to the ground, was kicked. The motive for the police attack was a street brawl in which one of Jelson=s friends had been involved shortly before. Seeing Jelson Lima in the street, the police thought that it was he who had been involved in the brawl and decided to punish him for it. The result was that Jelson Lima ended up paralyzed and suffering from a number of other health problems and is trying to obtain compensation through the state justice system. Regarding the police officer who attacked him, a military audit concluded in March 1995 that the police acted with Anegligence and imprudence..., and seriously injuring Jelson Lima. The military justice system condemned the officer to 8 years= imprisonment, but the officer appealed and is a free man while awaiting judgement. According to the Commission=s information, the police officer was not subject to administrative sanctions.
5. The case of corporal Adeval de Oliveira is a clear example of a "military" police officer rewarded for his violent conduct. In 1992, Corporal Adeval de Oliveira killed a drug dealer named Edmilson by shooting him in the head and through the heart. In her statement, a witness declared that she saw Edmilson put his hands up and beg them not to kill him; the corporal fired anyway. Two years later, in 1994, the "military" police force of São Paulo named Adeval soldier of the year and he received the medal one week after his release from preventive detention for 80 days for the homicide of a person he knew. Adeval alleged legitimate defense, as do most of the "military" police accused of committing crimes in the course of duty. The corporal has been accused in other cases in the deaths of another 49 people. Soldados da Guerra e da Locura, VEJA, April 19, 1995, p. 81.
6. Colonel Gilson Lopes, who gave Adeval the medal, is alleged to have 44 murders to his credit in his 24 years of police service. Documents in case No. 25.122.85-3 describe the story of the 20-year-old student Delton Da Mota, who was killed by a team led by officer Gilson Lopes when he was talking with three friends near his house. None of the four friends was armed, intoxicated, or had criminal records. Delton was shot four times and died as a result of brain trauma and acute internal hemorrhaging. According to Colonel Lopes, Delton's death was an act of legitimate defense. To date, he has not been condemned in any of the 42 cases against him. Colonel Lopes' reputation began in 1978 when he killed Paulo Bueno, aged 18 (son of a "military" police sergeant) and two minors. The three were in a vehicle stolen by someone they knew. The minors were discovered by Lopes' patrol and executed without having any opportunity to defend themselves. According to witnesses, one of the youngsters was killed when he cried for help from the top of a truck.
7. AMERICAS WATCH, Urban Police Violence in Brazil: Torture and Police Killings in São Paulo and Rio de Janeiro after Five Years, Vol. 5, Issue No. 5, p.4 (1993). Other sources report slightly different figures: 411 in 1988; 519 in 1989; close to 600 in 1990; 1,264 in 1992 (not counting the 111 persons killed in the Carandirú detention center). HÉLIO BICUDO, Un Brasil Cruel y Sin Maquillaje, São Paulo, Ed. Moderna, p. 15 (1994).
8. Soldados da Guerra e da Locura, VEJA, April 19, 1995, p. 80.
9. Source, data from the Secretariat of Public Security of Sao Paulo.
10. SERGIO VERANI, Assasinatos em nome da lei (Rio de Janeiro, Adelará) 1996 and Jornal do Brasil, April 16, 1996.
11. Survey by the Getulio Vargas Foundation and the Religion Investigation Institute, Rio de Janeiro, 1996.
12. Another serious case the Commission learned indicates that in March 1993, in Corumbá (Mato Grosso do Sul), a group of Amilitary police in the town invaded Hospital de la Caridad. The police, some of whom were in uniform, trampled nurses and doctors to execute the Paraguayan Reinaldo Silva, aged 18, who was hospitalized there. The 49 police officers who took part in the assassination, including soldiers, corporals, and sergeants, later confessed to the crime, justifying it as revenge for the death of a fellow officer. When he heard about the incident, the Commander General of the Amilitary police in Campo Grande removed the commander of the troop, Colonel Alberto Rosa, and opened an investigation to determine who was responsible.
13. This was the case facing the public prosecutor, Nilo Cairo, in the state of Rio de Janeiro. In trying to verify the torture of Andre Melo Nascimento in January 1995, he petitioned the Judge of Criminal Court No. 20 of the Capital of the state to issue an order to perform an examination of the victim=s wounds. The petition was granted and two doctors and a photographer appointed by the authorities headed to the Central Army Hospital to conduct the examination, That notwithstanding, a Lieutenant Colonel of the army refused to allow them access to the patient alleging that the court order had to be forwarded to his commanders to be authorized. Despite a warning from the public prosecutor that his attitude constituted disobedience of a legal order and obstruction of justice, the military man refused to comply. (Ofício da Produradoría da República no Estado do Rio de Janeiro/PRDC/No. 128, document No. XIII, April 1995).
14. An example of this situation is the case of J.H., the owner of a bar in a slum in the Santa Teresa district of Rio de Janeiro. In 1996, he was shot by a stray bullet from the firearm of a police officers patrolling the slum. He went to the hospital for treatment and was beaten in the face by five armed police officers in civilian clothing who confused him with another person they had just shot in the Amorro. The police stopped beating J.H. only when a doctor at the hospital showed them his credentials and the victim=s identification, explaining that he was there for treatment. To avoid reprisals, J.H. preferred not to report the attack and to remain anonymous.
15. (Democraça em Pedaços, Gilberto Dimenstein, São Paulo, Ed. Companhia das Letras, 1996).
16. (Democraça em Pedaços, Gilberto Dimenstein, São Paulo, Ed. Companhia das Letras, p. 79, 1996).
17. A frightening example of this occurred on Saturday, March 4, 1995. On that day, Corporal Flávio Ferreira Carneiro of the Amilitary police executed a 20-year-old crime suspect, Cristiano Moura Mesquita de Mello, by shooting him three times. Though Cristiano was not armed, he was shot twice in the hands and once in the back. The delinquent did not resist arrest. The scene was filmed by a TV Globo cameraman without the police realizing it and even though he had been expressly requested not to do so. The incident was broadcast on the news programs "Jornal Hoje" and "Jornal Nacional." A survey by Rio de Janeiro educational television showed that 86% of the 106 viewers of the program on that station condoned the corporal's conduct. In another survey conducted, 91 percent of the Radio Globo=s listeners also condoned the corporal's action. The same occurred with more than half the letters sent by readers to periodicals in Rio de Janeiro. Veja magazine reported that this attitude did not reflect some morbid desire to see blood flowing in the streets, but a legitimate desire for security and peace, then continued to examine why it was wrong. The TV Globo cameraman allegedly received death threats from the corporal=s friends, quit his job, and refused to give interviews. Aplauso Errado, VEJA, May 17, 1995, pp. 46-47
18. State of Rio de Janeiro Legislative Assembly, CI for determining responsibility for the extermination of children and adolescents in the State of Rio de Janeiro (1991); A.A. MOTTA, Pesquisa: Exterminadores rondam PM's, O GLOBO, June 29, 1992, p. 11, cited in MINISTRY OF EXTERNAL RELATIONS, Relatório Inicial Brasileiro Relativo ao Pacto Internacional dos Direitos Civis e Políticos de 1966, Ministerio das Relações Exteriores, Fundação Alexandre de Gusmão e Núcleo de Estudos da Violência da Universidade de São Paulo, p. 41 (1994); See also HUMAN RIGHTS WATCH/AMERICAS, Final Justice...note supra..., p. 94; Pesquisa: exterminadores rondam PMs, O Globo, June 29, 1992.
19. Folha de São Paulo, January 14, 1996.
20. MINISTRY OF EXTERNAL RELATIONS, Relatório Inicial Brasileiro Relativo ao Pacto Internacional dos Direitos Civis e Políticos de 1966, Ministerio das Relações Exteriores, Fundação Alexandre de Gusmão e Núcleo de Estudos da Violência da Universidade de São Paulo, p. 41 (1994).
21. MINISTRY OF EXTERNAL RELATIONS, Relatório Inicial Brasileiro Relativo ao Pacto Internacional dos Direitos Civis e Políticos de 1966, Ministerio das Relações Exteriores, Fundação Alexandre de Gusmão e Núcleo de Estudos da Violência da Universidade de São Paulo, p. 42 (1994).
22. Soldados da Guerra e da Locura, VEJA, April 19, 1995, p. 81. For death squads, see also HUMAN RIGHTS WATCH/AMERICAS, Final Justice...note supra..., pp. 82-125.
23. HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. X (1994).
24. MINISTRY OF EXTERNAL RELATIONS, Relatório Inicial Brasileiro Relativo ao Pacto Internacional dos Direitos Civis e Políticos de 1966, Ministerio das Relações Exteriores, Fundação Alexandre de Gusmão e Núcleo de Estudos da Violência da Universidade de São Paulo, p. 41 (1994).
25. See AMNESTY INTERNATIONAL, ABeyond Despair, An Agenda for Human Rights in Brazil, p. 5 (AMR 19/05/90) [sic]. See also HUMAN RIGHTS WATCH/AMERICAS, Final Justice...note supra..., pp. 82-83.
26. AMNESTY INTERNATIONAL, "Beyond Despair, An Agenda for Human Rights in Brazil," p. 5 (1994).
27. HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. 82 (1994).
28. HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. X (1994).
29. AMNESTY INTERNATIONAL, "Beyond Dispair, An Agenda for Human Rights in Brazil," p.5 (1994).
30. AMNESTY INTERNATIONAL, ABeyond Despair, An Agenda for Human Rights in Brazil, p. 6 (1994).
31. AMNESTY INTERNATIONAL, ABeyond Despair, An Agenda for Human Rights in Brazil, p. 6 (1994).
32. AMNESTY INTERNATIONAL ACrime without punishment. Impunity in Latin America, p. 5 (Nov. 1996).
33. One example of how extermination squads control the public through intimidation and protection is described by a witness of Baixada Fluminense, a poor area of Rio de Janeiro. When the witness moved into the area, he was visited by one of the leaders of the local extermination squad, who told him the rules of the neighborhood. Among other things, he told him that if he had problems with a neighbor he was to go to the vigilantes and not to the police and that any visitors he received from outside the neighborhood would have to leave because they might be killed or imprisoned. The witness also reported that the vigilantes obliged the neighbors to give food and money to care for their wounded companions.
Another example of the action of these squads took place in Sergipe state where, in 1993, over a period of 30 days, eight corpses were found in a bus station. most of them poor people. Among the dead was a bandit by the name of Givaldo Francisco de Nascimento, known as ASeven Fingers, who was taken from his house by two individuals identified as police officers. Givaldo was killed and his body dumped at the bus station. On month later, his wife, Maritza Alves da Silva, was also assassinated after reporting that the persons responsible for the death of her husband were police officers. These cases are evidence of the resurgence of death squads in Sergipe, after two years of inactivity.
An illustration of death squad action was the murder of six children in Nova Jerusalém, a slum in the Duque de Caxias municipality in the state of Rio de Janeiro, in November 1991. The children were in a shack drinking "cachaça" (Brazilian rum) and inhaling glue when they were attacked by armed men. The children were forced to lie on the floor where they were executed; only one 16-year-old girl survived. Though eight suspects were identified thanks to the girl's testimony, only two were arrested. One received a cumulative sentence of 93 years' imprisonment.
In 1992, a shopkeeper named Cléber da Silva Barros accused members of a squad (including three Amilitary police officers) of killing a friend of his in the Baixada Fluminense area of Rio de Janeiro. Cléber da Silva Barros, fearing for his life, sold his house and moved. In April 1993, he was assassinated by two men as he left a bar in Nova Iguaçu. He was allegedly killed six days after turning to the police for help and enquiring about the status of the investigation into the murder of his friend.
On August 29, 1993, four Amilitary police officers from the Ninth Battalion who allegedly tried to blackmail drug traffickers in the slum, were shot to death by drug traffickers. This triggered episodes of violence in Rio de Janeiro. One of them occurred in the morning of August 30 of that year when 21 inhabitants of the slum Vigário Geral (on the north side of Rio) were gunned down by some 30 police officers wearing hoods and dressed in civilian clothes. "They fired indiscriminately on local residents for two hours." Among the dead were seven men playing cards in a bar and eight members of one family, including a 15-year-old girl. According to reports, the police officers responsible were trying to avenge the death of their four fellow officers the day before. Almost none of the dead, among whom were women and children, had criminal records.
An investigation into the Vigário Geral massacre, conducted jointly by the civil and Amilitary police, ended with the trial of 33 men accused of participation. These included 28 Amilitary and three civil police officers. The accused were allegedly linked to an extermination squad known as the "Running Horses", to which the Vigário Geral massacre was attributed.
Thanks to a police informer, ex-army Sergeant Iván Custodio Lima, the public prosecutor's office was able to unearth another thirty-odd crimes of extortion, kidnapping, and homicide involving the Rio police and some delegates in prominent positions in the hierarchy.
34. AMNESTY INTERNATIONAL, Beyond Despair, An Agenda for Human Rights in Brazil, p. 7 (1994). See also HUMAN RIGHTS WATCH/AMERICAS, Final Justice...note supra..., pp. 85-87.
35. See AMNESTY INTERNATIONAL, ABeyond Despair, An Agenda for Human Rights in Brazil, p. 6 (AMR 19/05/90).
36. HUMAN RIGHTS WATCH/AMERICAS, Final Justice...note supra..., pp. 83.
37. On corruption of the civil police, see GUARACY MINGARDI, Tiras, Gansos e Trutas, Cotidiano e Reforma Na Polícia Civil, Ed. Página Alberta Ltda. (1991).
38. (Democraça em Pedaços, Gilberto Dimenstein, São Paulo, Ed. Companhia das Letras, São Paulo, p. 78, 1996).
39. (Linchamentos no Brasil: A Justiça que Não Tarda Mas Falha, by Paulo Rogério M. Menandor and Lídio de Souza, p. 126).
40. In Brazil, there are two parallel justice systems. The first, which is federal, is regulated by law 8457 of September 4, 1992 and has jurisdiction in preliminary proceedings regarding officers of the armed forces, etc.. The second is the state military justice system which, in accordance with the Federal Constitution, may be established in each federated state and in the federal district at the proposal of the Court of Justice. The organs of first instance in this system are the councils of justice and the appellate bodies are the Court of Justice or the Military Court of Justice in states having more than 20,000 police officers (Article 125.3 of the Federal Constitution).
41. See VICENZO MANZINI, Diritto penale militare, Padua (1932), year X, p. 1 and IDELFONSO M. MARTINEZ MUÑOZ, Derecho Militar y Derecho Disciplinario Militar, Buenos Aires (1977), No. 20 and 87, pp. 36 & 194, op. cit. by JORGE ALBERTO ROMEIRO, Curso de Direito Penal Militar (General Part), p. 1, Ed. Saraiva (1994).
42. A new project of law approved by the Senate widens the jurisdiction of the civil justice to include other crimes committed by militar policemen. The project does not include Ablackmaleor illegal Aassociation.
43. REINHART MAURACH, Deutsches Strafrecht, ein Lehrbuch, Allgemeiner Teil, Karlsruhe (1971), ' 8, IV, c, p. 93-4, AO direito penal especial de maior importância práctica é o direito penal militar (Das praktisch wichtigste Sonderstrafrecht ist das Wehrstrafrecht) MANZINI, Diritto penale militare, cit., p. 2; GUISEPPE CIARDI, Instituzioni di diritto penale militare, Rome, s.d., v. 1, p. 12; RODOLFO VENDITI, Il diritto penale militare nel sistema penale italiano, Milan (1978), pp. 23-5; and HELENO CLAUDIO FRAGOSO, Lições de direito penal, General Part, Rio de Janeiro, Forense (1980), p. 5; op. Cit. Curso de Direito Penal Militar, General Part, JORGE ALBERTO ROMEIRO.
44. It is said that public security policy is rooted in Constitutional Amendment No. 7 of 1977, called the AApril Package, whereby the structure of the state=s repressive system was based on the doctrine of national security, which introduced the concept of the Adomestic enemy. A Adomestic enemy was anyone against the regime. CONSELHO ESTADUAL DE DEFESA DOS DIREITOS DA PESSOA HUMANA, APor Uma Nova Política de Segurança E Cidadania, Comissão Permanente de Justiça, Segurança E Questão Carcerária, Série Documentos-1, p. 9 (1994).
45. Both in the state of São Paulo and in the other states where the military justice system was established, several exceptions to this jurisdiction were introduced in judicial actions brought for this type of offense. See HÉLIO BICUDO, Un Brasil Cruel y Sin Maquillaje, São Paulo, Ed. Moderna, p. 67 (1994). In case No. 2,800 on conflict of jurisdiction, for example, the Military Supreme Court established that:
...The definition of military crimes encompasses only those crimes committed in military establishments. MILITARY SUPREME COURT, Conflict of Jurisdiction No. 2,800, Rio Grande do Sul, Diário da Justiça da União (June 18, 1964), p. 362.
Many of these cases reached the Federal Supreme Court, which, in numerous decisions, ruled that the police or traffic supervision services were not military functions and resolved the conflict of jurisdiction in favor of the ordinary justice system. There were so many decisions of this kind that, in 1963, the Federal Supreme Court published Summing Up No. 297, which states:
Officers and rank and file of the state militia, exercising civil police functions, are not considered to be military personnel for criminal purposes, thus the ordinary justice system has jurisdiction in the crimes committed by or against them. Letter from the Santo Días Human Rights Center of the S. Paulo Archdiocese to the Secretariat of the Inter-American Commission on Human Rights (June 29, 1994) submitting information. See also idem p. 67 (1994).
46. Amendment No. 7 was signed by the President of Brazil at that time, General Ernesto Geisel. It established the following:
1. The law may establish, at the proposal of the Court of Justice:
d) The state military justice system, the forums of preliminary proceedings being the councils of justice and the appellate bodies, the Court of Justice itself, which shall be competent to try and judge military police officers for military the crimes defined in the law. (Underlining by the Commission).
47. ORDEM DOS AVODAGOS DO BRASIL, SECÇÃO DE SÃO PAULO , COMMISSÃO DE DIREITOS HUMANOS, EXECUÇÕES SUMÁRIAS DE MENORES EM SÃO PAULO, p. 19 (1993). See also CONSELHO ESTADUAL DE DEFESA DOS DIREITOS DA PESSOA HUMANA, Por Uma Nova Política de Segurança E Cidadania, Commissão Permanente de Justiça, Segurança E Questão Carcerária, Série documentos-1, Benedito Domingos Mariano, Father Francisco Reardon O.M.I. and Carlos Weis, p. 13 (1994), supra, p. 4
48. Letter from the Santo Días Human Rights Center of the Archdiocese of Sao Paulo to the Secretariat of the Inter-American Commission on Human Rights (June 29, 1994).
49. The 1988 Constitution did not address the concerns of some sectors pressing for demilitarization of the police and the creation of a single police force to deal with citizens (be they violators of the law or not) and not with soldiers or enemies in times of war. DEMOCRACIA X VIOLÊNCIA, Reflexões para a Constituinte, Severo Gomes... et al., organizers Paulo Sérgio Pinheiro and Eric Braun, Rio de Janeiro: Paz e Terra, p. 154 (1986). See also CONSELHO ESTADUAL DE DEFESA DOS DIREITOS DA PESSOA HUMANA, Por Uma Nova Política de Segurança E Cidadania, Commissão Permanente de Justiça, Segurança E Questão Carcerária, Série documentos-1, p. 13 (1994).
50. J.D. LOUREIRO NETO, Liçoes de Processo Penal Militar, São Paulo, Saraiva, p. 102 (1992).
51. At end-1992, there were 14,000 pending cases in four courts in São Paulo, which has only one prosecutor. HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. 41 (1994).
52. EMBASSY OF BRAZIL, Society, Citizenship and Human Rights in Contemporary Brazil, p. 19 (1995).
53. In March 1982, the Order of Attorneys of Brazil, São Paulo Section, asserted that the main cause for the increase in the deaths caused by Amilitary police was the impunity created by the special justice system applied to them. (Folha de São Paulo, March 7, 1982) CONSELHO ESTADUAL DE DEFESA DOS DIREITOS DA PESSOA HUMANA, Por Uma Nova Política de Segurança E Cidadania, Comissão Permanente de Justiça, Segurança E Questão Carcerária, Série Documentos-1, p. 9 (1994).
54. See COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1990, Report Submitted to the Committee on Foreign Affairs, House of Representatives, and the Committee on Foreign Relations, U.S. Senate, by the Department of State, p. 332 (1994).
55. See HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. 41-42 (1994).
56. Criminal proceedings are defined as the procedural stage of collecting evidence so that the Council of Justice can reach a decision on the facts. The accused is interrogated (Article 404 of the Code of Military Penal Procedure - CPPM) and the process continues through the final pleadings (Article 428 of the Code of Military Penal Procedure - CPPM).
57. Letter from the Días Center for Human Rights of the São Paulo Archdiocese to the Secretariat of the Inter-American Commission on Human Rights (June 29, 1994) submitting cases examined by the Center.
58. HUMAN RIGHTS WATCH/AMERICAS, Final Justice, Police and Death Squad Homicides of Adolescents in Brazil, p. 41 (1994). This is confirmed by a study conducted by the Santo Días Center for Human Rights of the São Paulo Archdiocese, which shows that in 95% of the cases brought before the military justice system in São Paulo involving crimes committed by Amilitary police, the officers were absolved. HÉLIO BICUDO, Un Brasil Cruel y Sin Maquillaje, São Paulo, Ed. Moderna, p. 16 (1994).
59. Michaels, ARio's Dead End Kids, Time, August 9, 1993, p. 37. Gaxeta São Paulo, November 7, 1993.
60. Gazeta San Pablo. 7 November 1993.
61. P. 51, Final Justice, HRW, 1994.
62. Congressmen Hélio Bicudo and Cunha Buena originally presented bill No. 3321 in 1992, tacked on to law 2801 of 1992 Aamending the provisions of decree-laws 1001 and 1002 of October 21, 1969, Military Penal Code and Code of Military Penal Procedure, respectively, under the terms of Article 235.II(d) of the Internal Regulations. The bill was not approved. Bicudo subsequently resubmitted the bill to the lower house, which once again failed to approve it. Instead, a substitute bill was approved, which then became law 9299 of August 7, 1996 Aamending the provisions of decree-laws 1001 and 1002 of October 21, 1969, Military Penal Code and Code of Military Penal Procedure, respectively, under the terms of Article 235.II(d) of the Internal Regulations. On July 16, 1996, congressman Bicudo once again submitted the bill (Bill 2190 of 1996 AAamending the provisions of decree-laws 1001 and 1002 of October 21, 1969, Military Penal Code and Code of Military Penal Procedure, respectively), which is currently being debated in the lower house.
63. Involving the Office of the Attorney General for Citizens= Rights, the Order of Attorneys of Brazil, the National Conference of Bishops of Brazil, the Pastoral Land Commission, Amnesty International, CONTAG, INESC, the Landless Movement, CIMI, and MNDH.
64. The Government informed the Commission that it signed an agreement with the Brazilian Section of Amnesty International on human rights education for the public security forces. In only four months the agreement made it possible to provide 1,100 police officers with courses and lectures in Minas Gerais, Sergipe, Bahia and Alagoas. In Minas Gerais and Sergipe, groups of police became permanent members of Amensty International.
65. A new interpretation of the Constitution by the Federal Supreme Court was the grounds for the expulsion of nine military police who were caught on a hidden camera committing a series of crimes at the Favela Naval. The dismissed persons had a legal trial.
66. See para. 30 infine
67. See para. 30 infine
68. See para. 88 infine