REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL

... CONTINUED

D. CONCLUSIONS

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⁾

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ENDNOTES CHAPTER III

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 Ablackmale@or 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).