Committee against Torture starts examination of report on situation in Brazil

CAT
26th session
8 May 2001
Morning




Brazil Should Prosecute Perpetrators of Torture
in Past Military Regimes, Experts Say


The Committee against Torture this morning started its consideration of an initial report of Brazil, saying that the Government of Brazil should prosecute those who had committed acts of torture during and after the military regimes and who continued to enjoy impunity.

The remark was made by the Committee's members over the course of their consideration of the report of Brazil on how that country was implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing his country's report, Marcos Vincius Pinta Gama, Chief of Staff of the National Secretariat for Human Rights of Brazil, said that the promotion and protection of human rights was one of the top priorities of the Brazilian Government, and within that framework, the fight against torture deserved the special attention of the National Secretariat for Human Rights of the Ministry of Justice. The Federal Government had been tackling that issue in an objective and transparent way and had recognized the existence of serious problems in the penal justice system, he said.

Antonio Silva Henriques Gaspar, the Committee member who served as Rapporteur to the report of Brazil, said that police officers who had been denounced for committing acts of torture continued to work in the same posts and police stations. Such a situation was depressing because suspension was not carried out until the situation was clarified; at least they should be transferred to another station.

Alejandro Gonzalez Poblete, the Committee member who served as Co-Rapporteur to the report of Brazil, said that in many police stations, there were detainees awaiting vacant places in prisons. That situation was unacceptable because a delinquent should be trained and educated and not simply deprived of his liberty. In addition, the security of detainees had to be protected. The lack of resources and lamentable conditions in prisons could amount to cruel treatment, he said.

The Brazilian delegation was also made up of Maria Eliane Menezes de Farias, Federal Attorney for Citizens' Rights; Raquel Elias Ferreira Dodge, Deputy Federal Attorney for Citizens' Rights; Renata Pelizon, from the State Secretariat for Human Rights of the Ministry of Justice; and Alexandre Pena Ghisleni, Second Secretary at the Permanent Mission of Brazil to the United Nations Office at Geneva.

The members of the Brazilian delegation will return at 3.30 p.m. on Wednesday, 9 May, to provide their response to the questions raised by members of the Committee.

Brazil is among the 123 States parties to the Convention against Torture and as such it is obligated to present periodic reports on its performance to give effect to the provisions of the treaty.

When the Committee reconvenes at 3.30 p.m., it is scheduled to continue its consideration of the second periodic report of the Czech Republic by hearing the response to questions on the report raised yesterday morning by Experts.


Initial Report of Brazil

The report (document CAT/C/9/Add.16) enumerates the administrative, judicial and legislative aspects with the view to implement the provisions of the Convention. In its introduction, the report says that since Brazil has ratified the Convention in September 1989, it committed itself to ensure that acts of torture would be considered a crime according to its domestic criminal legislation. However, only with the promulgation of a law in April 1997 was torture legally characterized as a criminal act. The report also reviews the main aspects of the torture issue in Brazil throughout the 1990s.

The report says that the problem of torture and inhuman treatment faced in Brazil was mostly the result of the authoritarian legacy which Brazil experienced for about 20 years. However, torture did not start with the military regime in 1964, and for that reason, it was not systematically eliminated after the regime changed. During the authoritarian regime, the number of victims of torture increased due to inclusion of political enemies. Torture became sophisticated in its methods, and relied on the complicity or inaction of the authorities and even on their formal support at times.

The report recalls that with the 1964 military coup, for the next 20 years torture and ill-treatment to prisoners were enhanced. The opposition was severely persecuted; many politicians and militants in opposition groups and movements were exiled or disfranchised; and others were randomly arrested, tortured, murdered or simply disappeared. Much of the political repression during the New State and the dictatorship was carried out by police forces controlled by the Federal Government with the support of the state police. The role played by the state police amidst the silence imposed by governmental censorship and suppression enhanced the practice of torture and ill-treatment of ordinary prisoners, whether arrested or convicted, and fostered the participation of police forces, both civil and military.

Further, the report describes and analyses how Brazil is coping with the Convention; due to lack of data and the fact that the law is recent, conclusions regarding the effectiveness of the law cannot yet be drawn; a great many cases of torture occurred inside and outside police stations, prisons, and penitentiaries even after the law entered into effect. Even though the Law of Torture does not restrict the characterization of this crime only to acts by the state agents, it was chosen to describe the cases which involved them. Crimes of torture committed by individuals who are not public agents are equally blame-worthy and often associated with the practice of other crimes, such as kidnapping. However, it is not as serious as the practice of a public agent who in the exercise of his police duties makes use of torture to obtain information, confessions or for extortion.


Presentation of Brazilian Report

MARCOS VINICIUS PINTA GAMA, Chief of Staff of the National Secretariat for Human Rights of Brazil, stressed that the promotion and protection of human rights was one of the top priorities of the Brazilian Government, and within that framework, the fight against torture deserved the special attention of the National Secretariat for Human Rights of the Ministry of Justice. The Federal Government had been tackling that issue in an objective and transparent way and had recognized the existence of serious problems in the penal justice system.

The approval of the Torture Act in 1997 was a landmark in the combat against torture in Brazil, Mr. Gama said. Although the Act had a broader definition of torture in comparison with article 1 of the Convention, allowing for any individual to be indicted for the crime of torture, it focused primarily on acts of torture and ill-treatment perpetrated by public officials, especially policemen and prison guards. So far, the Act had not been enforced in a satisfactory way. Since 1997, no criminal indictment had been issued in response to allegations of torture, either because public prosecutors filed no complaints or because judges changed the nature of the complaint to less serious crimes such as bodily harm or abuse of authority. It could be premature, however, to dismiss the Torture Act as ineffective.

Mr. Gama said that the Brazilian society at large needed to be convinced that public security concerns were better addressed when human rights standards were granted to all, including suspected criminals and detainees. Unfortunately, the same society which fought against the abuses of the military regime did not display the same kind of abhorrence when torture was committed against underprivileged persons and detainees. That situation required that decisive steps be taken to raise the awareness and change people's mentality at the heart of Brazilian society, and demanded that judges be encouraged to create strong jurisprudence on the enforcement of the Torture Act.

The Federal Government of Brazil was adopting a comprehensive approach in order to address the problem of prison overcrowding, encompassing the construction of new facilities, the refurbishment of current facilities, more systematic use of alternative sentencing, reviews of prisoners' procedural status, and the creation of special courts to handle cases. Some states were closing down lock-ups in police stations and transferring prisoners awaiting trial to temporary detention facilities. In addition, a national database would be provided on the detention system with an individual file on each prisoner, allowing the monitoring of each individual with the criminal justice system from the beginning.

MARIA ELIANE MENEZES DE FARIAS, Federal Attorney for Citizens' Rights of Brazil, said that her office received complaints from citizens and organizations and promoted contact with the executive, judicial and legislative powers of the Government. It actively promoted the effective
implementation of concrete measures to improve state services; the guarantee of the rights of the accused to receive treatment in prison that preserved human dignity; and the right to legal representation.

Ms. Menezes de Farias said that the Federal Attorney also monitored police investigations, the lawful collection of evidence, the preservation of dignity and the physical and psychological well-being of prisoners. The office was unique in comparison to other similar institutions throughout the world. Its characteristics were frequently referred to as being similar to ombudsmen in other countries, but it had other more active powers, such as the powers to accuse, investigate and charge the Government as well as to implement public policies.

In recent years, throughout Brazil, many measures to combat torture had been implemented by the Federal Attorney, Ms. Menezes de Farias continued to say. The Brazilian society was just now beginning to understand that all kinds of torture, regardless of who the victim was -- a detainee, any person, independent from his or her social class of the crime committed -- should not be tolerated.


Discussion

ANTONIO SILVA HENRIQUES GASPAR, Committee Expert and Rapporteur to the report of Brazil, said Brazil should be appreciated for the frankness and transparency demonstrated in the report. However, the report did not fully match the Committee's guidelines.

Considering the fact that the country was a very large country with a culture of abuse of authority still prevailing, it might be difficult to assess the general situation of torture. The Government had, however, continued to fight torture through various means, including by adopting legislative measures. Brazil had adopted the Torture Act in 1997 and still the law was not fully implemented to give impetus to the combat against torture and abuse of authority.

The campaign against torture which had been announced by the delegation had to be clear. The length of custody in police stations was not elucidated. The administrative registration of a detainee had to be clarified: when the registration should be initiated; if it was from the moment the individual was detained at the police station; and the mechanisms to monitor the righteousness of the registration. The delegation should also tell the Committee if the detainee had the right to access to a legal defence and to a medical examination.

What was the position of the Government of Brazil on the principle of refoulement of refugees? Was there any case of refoulement to a country where the individual risked his life or faced ill-treatment or torture? Was there any case of extradition of a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture?

The law on torture was not fully implemented and at present, there were trends of interpretation which minimized the scope of torture. In addition, the report did not mention any case law of torture and the implementation of the law. Was there any external verification of police activities? The report seemed to acknowledge that the Torture Act should not be only under the competence of the Federal Government, but it should also be under the competence of the states.

Did the Brazilian courts have the jurisdiction to examine international crimes? If an individual, who committed crimes in another State and who was not Brazilian, was found on the territory of Brazil, what procedure was followed to prosecute him? What was the judicial or the police cooperation in the extradition of a Brazilian citizen who committed crimes in another State, but who was currently in Brazil?

ALEJANDRO GONZALEZ POBLETE, Committee Expert and Co-Rapporteur to the report of Brazil, said that the report was unusually transparent and frank.

On the issue of ensuring education and information regarding the prohibition against torture, the report had indicated that efforts were underway; the training of law enforcement officers was essential. The report further had highlighted the reasons which explained the difficulties to eradicate torture in the country.

Concerning the rules of interrogation, the report had listed a number of methods used in carrying out such activities. The rights of the detainee to keep silent, to have access to a lawyer and a medical doctor had also been mentioned. The investigation proceedings were addressed in article 4 of the penal code; when the practice of torture or any other penal infraction became known, the police authority should take on a series of investigative methods. The report had reflected articles 11 and 12 of the Convention which said, among other things, that the State party should ensure that its competent authorities proceed to a prompt and impartial investigation.

Police officers who were denounced for committing acts of torture continued to work in the same post and police stations. Such a situation was depressing because suspension was not carried out until the situation was clarified; at least they should be transferred to another station.

The cases of 18 persons who had died in penitentiary had been resettled in an "amicable" manner. The 18 persons were asphyxiated in a police station and the Inter-American Committee for Human Rights had declared that the Brazilian State was liable for the violation of the American Declaration of Rights and Duties of Man, among other things. The Government had paid compensation to the families of the victims. However, the nature and the amount of the compensation was not mentioned in the report.

Further, the Brazilian report did not contain any information on rehabilitation of victims of torture. In the legal system, there was no clear provision which stipulated the manner in which rehabilitation or redress was offered to the victims.

In many police stations, there were detainees waiting for vacant places in prisons. That situation was unacceptable because a delinquent should be trained and educated and not simply deprived of his liberty. In addition, the report had indicated that the prison population in Brazil was 170,207 in 1997, a ration of 108.3 prisoners per 100,000 inhabitants. There were 74,197 vacancies representing a deficit of 96,010, which was one of the main problems of the prison system in the country. Besides, according to the Ministry of Justice, it had been estimated that 250,00 arrest warrants had not been carried out. The security of detainees had to be protected and not only those living in freedom. The lack of resources and lamentable conditions in prisons could amount to cruel treatment.


Other Committee members also contributed to the debate by raising questions. An Expert asked why there was such a huge penitentiary population in Brazil. Was there no alternative method to reduce overcrowding of prisoners? Many prisoners were reported to have been infected with tuberculosis in prisons, that showed that the health conditions in prisons were not up to standard. In addition, death in custody had been reported with some misleading medical certificates. Who was in charge of the hearing of such cases? Who was responsible for the licensing of a pathological doctor?

Another Expert said that the Government did not carry out investigations on former torturers. The Special Rapporteur on Torture of the Commission on Human Rights had observed in his report that former torturers were still in their posts enjoying impunity. In addition, it was in the military that torture had developed, particularly with the unclarified death of young conscripts; false reasons for their death were provided by the military authorities saying that their died in car accidents or committed suicide. In a different matter, homosexuals and patients with AIDS were discriminated against in prisons, and they were confined to separate cells. The Special Rapporteur on Torture had also reported that women prisoners were beaten and they were guarded by male guards. Was the Government taking any measures to abolish sexual violence against women?

An Expert said that the delay in the submission of the report might be attributed to the fact that torture persisted in the country. In addition, the law on torture had been enacted very recently. The definition of torture which did not include the acts of individuals other than the police and the prison officers might serve as an alibi for any other offence.

Another Expert said that the former military regime had amnestied itself from all acts of torture committed while it was in power. Was the modern and democratic regime of the present Brazil bound by the past acts committed by the military? What measures had the Government taken to prosecute those who still enjoyed impunity?


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