Human Rights Council
Thirty-first session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Brazil *
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Brazil from 3 to 14 August 2015.
The Special Rapporteur expresses his appreciation to the Government for the invitation, and for granting him unfettered access to all places of detention and to confidential interviews with inmates of his choosing.
With regard to legislation, safeguards and prevention, and institutional reform, Brazil has made significant progress on paper; however, implementation is lagging far behind.
Torture and ill-treatment, sometimes killings, by police and prison staff continue to be a frighteningly regular occurrences, most notably affecting persons belonging to racial, sexual, gender and other minority groups.
Conditions of detention amount to cruel, inhuman or degrading treatment. Severe overcrowding leads to chaotic conditions inside the facilities, and greatly impacts the living conditions of inmates and their access to food, water, legal defence, health care, psychosocial support, and work and educational opportunities, as well as sun, fresh air and recreation.
Impunity remains the rule rather than the exception, partly owing to highly deficient procedures and practices with regard to monitoring and documentation.
The Special Rapporteur requests the international community to support the efforts of Brazil to implement the above-mentioned recommendations, and to close the gap between the country’s ambitious laws and policies and the everyday situation of people deprived of their liberty, in particular by ensuring comprehensive and effective enforcement of new and existing laws and policies.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Brazil**
Contents
Page
I.Introduction4
II.Activities of the Special Rapporteur4
III.Legal framework5
A.International level5
B.Regional level5
C.National level5
IV.Assessment of the situation6
A.General6
B.Torture and ill-treatment10
C.Safeguards and prevention14
D.Conditions of detention18
V.Conclusions and recommendations20
A.Conclusions20
B.Recommendations21
I.Introduction
1.The present report is submitted by Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, who conducted a visit to Brazil from 3 to 14 August 2015, at the invitation of the Government. The purpose of his visit was to assist the Government in its efforts to eradicate torture and improve conditions for persons deprived of their liberty, by assessing the legal and factual situation of torture and ill-treatment in the country, and identifying needs for reform to prevent torture and ill‑treatment in the future.
II.Activities of the Special Rapporteur
2.In the capital, Brasilia, and the Federal District, the Special Rapporteur met with senior officials of the ministries of external relations, justice and health; the secretariats on policies for women, human rights and youth; the Superior Court of Justice and the Supreme Federal Court; the Offices of the Federal General Public Defender, and the Prosecutor General of the Republic; the national councils on justice, on the public ministry, criminal and prison policy, and the rights of children and adolescents; the National Human Rights Council; the National Committee to Prevent and Combat Torture; the Commission of Human Rights and Participatory Legislation of the Senate; the Commission on Human Rights and Minorities of the Chamber of Deputies; and the national mechanism to prevent and combat torture.
3.In the states visited by the Special Rapporteur — Sao Paulo, Sergipe, Alagoas and Maranhao – he met with representatives of the respective courts of justice; offices of the general prosecutor; secretariats of public security, justice and penitentiary administration; unions of prison guards; secretariats of human rights, popular participation and youth; offices of the public defender; civil society organizations; victims and their family members; and international organizations.
4.The Special Rapporteur visited a representative sample of places where people are deprived of their liberty, including psychiatric institutions, police stations, socioeducational centres for children, pretrial facilities and penitentiaries.
5.He expresses his appreciation to the Government for the cooperation extended to him during his visit, in particular with regard to unfettered access to all places where people are deprived of their liberty, in keeping with the terms of reference for fact-finding missions by special rapporteurs, and to interviewing detainees in private.
6.The Special Rapporteur expresses his gratitude to the Office of the United Nations High Commissioner for Human Rights, the United Nations Development Programme staff presence in Brasilia, and others involved in the visit, for their excellent assistance throughout the mission. He thanks Brazilian civil society and the international community based in Brazil for their availability and invaluable insights. He is grateful to all his interlocutors, including senior State officials, representatives of civil society, lawyers and detainees, including victims of torture and ill-treatment, with whom he met. The Special Rapporteur expresses solidarity with the victims and survivors of torture, their relatives and Brazilian human rights defenders, as well as his support for their important efforts.
III.Legal framework
A.International level
7.Brazil is a party to the main United Nations human rights treaties prohibiting torture and ill-treatment, including the International Covenant on Civil and Political Rights and the two Optional Protocols thereto; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol thereto; the International Convention for the Protection of All Persons from Enforced Disappearance; the Convention on the Rights of the Child; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of Persons with Disabilities; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Convention relating to the Status of Refugees; and the Convention relating to the Status of Stateless Persons. Brazil is also a signatory to the Rome Statute of the International Criminal Court.
B.Regional level
8.At the regional level, Brazil is a party to the principal human rights treaties of the Organization of American States, including the American Convention on Human Rights; the Inter‑American Convention to Prevent and Punish Torture; the Inter-American Convention on Forced Disappearance of Persons; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women; and the Inter‑American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance. The State also recognizes the jurisdiction of the Inter-American Court of Human Rights.
C.National level
1.Constitution
9.The federal Constitution is the main political and legal instrument of Brazil. Each of the 26 states also has its own constitution, established by article 25 of the federal Constitution, and the federal district has its own Organic Law, as per article 32 of the Constitution.
10.Civil, penal and procedure codes are federal, and states are subject thereto, with no authority to create their own. However, states have their own security systems, courts and prosecution authorities.
11.Article 5 of the Constitution provides that no one shall be subjected to torture or inhuman or degrading treatment (para. III); acts of torture are not subject to bail, grace or amnesty (para. XLIII); cruel punishment is prohibited (para. XLVII); and prisoners have the right to physical and moral integrity (para. XLIX). Rights and guarantees articulated in the Constitution are not exclusive (para. II). International human rights treaties have special constitutional status: once ratified by the federal Congress, they are immediately applicable.
2.Legislation
12.Article 1 of Law No. 9.455 of 1997 (Law on Torture) defines the crime of torture as the act of constraining someone with the employment of violence or serious threat thereof, causing them physical or mental suffering (a) with the intent of obtaining information, or a declaration or confession from the victim or a third party; (b) to provoke an action or omission of a criminal nature; and (c) as a result of racial or religious discrimination. Moreover, it is considered a crime of torture to submit someone under one’s custody, power or authority to the use of violence or serious threat of intense mental or physical suffering as a means of applying personal punishment or as a preventive measure.
13.The penalty for such a crime varies from two to eight years in prison. Those who absent themselves before torture occurs, when they were able to prevent it or ascertain that it would occur, are subjected to imprisonment for one to four years. However, if serious bodily harm results from the crime of torture, the penalty is 4 to 10 years, and if the result is the death of the victim, the prison sentence may be increased to 16 years. Punishment may be increased by one sixth to one third of the sentence if the crime is perpetrated (a) by a public agent; (b) against children, pregnant women, the impaired or adolescents; or (c) in conjunction with kidnapping. Paragraph 6 of article 1 of the Law on Torture determines that crimes of torture are not subject to bail, grace or amnesty.
14.The Law on Torture is applicable to the whole territory of Brazil; however, the crime of torture is not a federal crime and, accordingly, each State is responsible for applying the law and enforcing judicial sentences.
15.This lack of federal power of enforcement with regard to the punishment and prevention of torture at the state level results, in practice, in a lack of effective implementation of the Law on Torture, due, inter alia, to resource constraints, political priorities or complicit officials.
IV.Assessment of the situation
A.General
Overcrowding
16.According to the Ministry of Justice, Brazil’s prison population is 711,463 prisoners (including house arrests), making it the fourth largest prison population in the world per capita, at 193 persons per 100,000. Thirty years ago, the prison population was about 60,000. Recent figures show that it increased by 74 per cent during the period 2005-2012. In 2012, 60.8 per cent of all inmates were of African descent and 54.8 per cent were under the age of 29.
17.Despite an investment of 1.2 billion Brazilian reales by the federal Government to create additional prison capacity, the continual increase in the prison population, combined with an official penitentiary capacity of merely 376,669 prisoners, has created a penitentiary system marked by endemic overcrowding – in one State at 265 per cent beyond capacity.
18.The Special Rapporteur strongly encourages the Government to focus on decreasing the prison population, rather than on increasing prison facilities. He strongly supports alternative measures to incarceration; however, he expresses concern at the position aired by some authorities that such measures ought to apply to domestic violence and that the Maria da Penha law (which raised the penalties for domestic violence) is an obstacle to the use of alternative measures. The Special Rapporteur strongly disagrees, stressing that domestic violence is a very serious crime. Any attempt to address the issue of overcrowding by returning to impunity for violence, including against women and children, would be a mistake.
19.The Special Rapporteur is concerned at the high number of pretrial detainees (40 per cent) and the amount of time spent in pretrial detention (five months on average), factors which contribute to severe overcrowding.
20.Generally, the Special Rapporteur notes a national reoffending rate of between 25 and almost 50 per cent, according to various but incomplete studies, and a concerning lack of effective social reinsertion programmes.
21.He notes that on 4 March 2015 the Chamber of Deputies of the Congress of Brazil created a commission to investigate the penitentiary system in Brazil. He hopes that the commission will be able to provide solutions to this pervasive challenge.
Criminal law and procedure: drugs
22.Figures from the periodic bulletin called Infopen show that in 2014 no less than 27 per cent of all detainees faced drug-related charges. Among women and adolescents, the figures were 63 per cent and 24.8 per cent, respectively. Twenty-one per cent of detainees faced larceny or theft charges, a number which may be related to the first category. Many, if not most, of these cases could be dealt with by non-custodial measures, thereby reducing overcrowding.
23.The Special Rapporteur is aware of Law No. 11.343, which is aimed at directing drug users towards medical attention and treatment; however, he is concerned at reports from legal experts that law enforcement in practice leads to the incarceration of small‑time dealers, drug addicts who trade only to support their vice, and drug users wrongly accused of dealing. This group saw a 320 per cent increase in the rate of detention from 2005 to 2012. These reports support testimony that the Special Rapporteur received from young men and children, who claimed they had been caught with de minimis amounts for personal use. The fact that the female prison population increased by 246 per cent between 2000 and 2012, compared with an increase of 130 per cent for the male prison population during the same period, also suggests an inadequacy in certain laws and an unevenness their application.
24.Brazil has decriminalized possession of drugs for personal consumption but, to determine the purpose of possession, courts do not apply a standard based on fixed quantities, but rather a presumption of intent to trade based on the police report of apprehension.
25.As almost all arrests are reported as “in flagrante delicto”, the police officer’s testimony is often decisive in determining the amount of time a suspect spends in detention until trial. The Special Rapporteur notes that a judicial practice more oriented to the objective of decriminalizing possession for private use would be likely to result in a significant reduction in overcrowding.
Children and adolescents
26.By law, detention of children and adolescents is subject to principles of brevity, exceptionality and respect for the particular condition of children and adolescents in a given developmental phase. In practice, however, detention is not always used as a measure of last resort, and detention conditions often do not correspond to the specific needs of this group, as described below. Currently, more than 20,000 children are serving sentences.
Afro-Brazilian community
27.Numbering 50.7 per cent of the total population, Afro-Brazilians account for merely 20 per cent of gross domestic product; 78 per cent live below the poverty line, while 40 per cent have completed less than seven years of schooling, and are affected significantly more than the overall population by nearly every possible negative indicator.
28.According to Infopen, in 2014 about 67 per cent of Brazil’s total prison population was classified as “black” or “mulatto”.
29.Afro-Brazilians are at a significantly higher risk of mass incarceration, police abuse, torture and ill-treatment, medical neglect, being killed by the police, receiving higher sentences than their white counterparts for the same crime and suffering discrimination in prison — suggesting a high degree of institutional racism.
30.In addition, Afro-Brazilians are gravely impacted by serious crime: death by homicide is 87 per cent higher among Afro-descendants than in the population as a whole; in some regions, the number of homicides among Afro-Brazilians is more than 400 per cent higher than among other groups. The Special Rapporteur heard worrying reports of police involvement with death squads that are terrorizing black communities.
31.He notes that on 4 March 2015 the Chamber of Deputies of the federal Congress created a commission for investigating the violence perpetrated against Afro-Brazilian youth.
Lesbian, gay, bisexual, transgender and intersex persons
32.The Special Rapporteur notes with concern that little data exist on lesbian, bisexual, transgender and intersex people in conflict with the law in Brazil. Few people declare themselves as such in prison, the great majority of incidents are not reported due to fear of retaliation from the perpetrator(s), and there is little interest in mapping such incidents.
33.From the information available, the Special Rapporteur understands that they are the target of systematic threats and serious harm to their physical and psychological integrity, including sexual violence and killings during arrests and detention, by police and penitentiary agents, as well as by fellow inmates.
34.Joint resolution 1/2014 of the National Council on Criminal and Penitentiary Policies and the National Lesbian, Gay, Bisexual and Transgender Council provides that lesbian, bisexual, transgender and intersex persons are entitled to specific wings and cells. Compulsory transfers are, in principle, considered a violation, but the resolution foresees no sanctions in the event of breaches. In terms of access, according to Infopen, in 2014 only about 5 per cent of establishments had special cells for this group. The resolution is unclear about how and by whom searches of lesbian, bisexual, transgender and intersex people must be conducted. Implementation is left up to each institution, and there are no sanctions for non‑compliance.
35.The joint resolution is undoubtedly a positive step; however, the Special Rapporteur is concerned that it could contribute to the further exclusion and isolation of such persons, depending on how it is implemented.
36.In terms of access to health services, lesbian, bisexual, transgender and intersex persons are, relative to the rest of the prison population, likely to be additionally affected by inadequacies stemming from overcrowding. In that regard, the joint resolution establishes that the national health policies relating to lesbian, bisexual, transgender and intersex persons, including access to hormone treatment, also apply in prisons.
Partners and family members of inmates
37.The Special Rapporteur notes with great concern that partners and family members, including children, adolescents, women and the elderly, in order to gain access to penitentiaries, prisons and socioeducational centres to visit inmates, are often subjected to violent, humiliating and oppressive body searches and other forms of sexual violence. This entails stripping women and forcing them to squat over a mirror, contract their muscles and open their anus and vagina with the fingers to allow prison personnel to inspect them. This treatment mostly affects the female relatives (including infants) of inmates, but is also applied to male visitors and inmates, including adolescents in socioeducational centres.
38.Invasive body searches can never be justified on the grounds of aiming to prevent the smuggling of illegal objects, a purpose for which there are less intrusive alternatives. Several international and regional bodies have emphatically rejected their use.
39.The federal Senate and the Commission on Human Rights and Minorities of the Chamber of Deputies unanimously approved a bill (7764/14) to ban the practice at the federal level. It is currently pending approval by the Security Commission and the Constitution and Justice Commission of the Chamber of Deputies. Bill 404/2015, banning the practice in establishments for young offenders, is pending in the Chamber of Deputies.
40.The Special Rapporteur stresses the respo