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.
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.@
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:
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)
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)
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.
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:
63. The definition is given in the Military Penal Code which, in Article 9.II(f),4(44) states:
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.
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.
68. In January 1983, a report on the performance of the state military justice system since Constitutional Amendment No. 7 was published, indicating that:
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:
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:
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:
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:
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:
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 Commission=s 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.