Brazil: letter to the attorney general, Augusto Aras

Dear Attorney-General Augusto Aras,

We commend efforts at the National Council of Public Prosecutors (CNMP, in Portuguese) to draft a resolution to improve investigations into possible abuses by police.[1] This letter offers our recommendations, based on decades of on-the-ground research, so that the resolution strengthens the rule of law and the police forces by ensuring their members fulfill their duty to protect the public within the bounds of the law.

We also commend the creation of a committee within the CNMP to monitor implementation of the decisions taken by the Inter-American System of Human Rights.[2] A key ruling in the Nova Brasilia case and subsequent decisions by the Inter-American Court of Human Rights called on the Prosecutor’s Office to lead investigations into cases of killings or abuses by police, a finding we wholeheartedly support.[3]

This letter offers some relevant background information and our recommendations for the resolution. Of course, adopting a resolution that strengthens the rule of law will not be enough. It is crucial that your office and the CNMP as a whole design and carry out significant efforts to ensure that it is implemented throughout the country.

Impunity Perpetuates Abuses

As you known, police violence is a chronic human rights problem that disproportionately affects people of African descent in Brazil. In 2022, police members killed more than 6,400 people—83 percent of them were Black—, according to the nonprofit Brazilian Forum of Public Security, which compiles the data from official sources at the state level.[4]

As an international nongovernmental organization that investigates and reports on human rights abuses around the world, we have conducted extensive research on violence by security forces in Brazil for decades.[5]

We have examined the circumstances of more than 140 cases of police killings and abuse in the last decade, and the investigative steps taken, and have interviewed witnesses, relatives, police officers, forensic experts, prosecutors, attorneys, and public defenders.[6] Our research is available on our website: https://www.hrw.org/americas/brazil.

We have found that while some police killings are in self-defense, many result from illegal use of force.

We have documented scores of cases in which police officers intimidated witnesses, or manipulated and destroyed evidence, including by taking bodies to hospitals falsely claiming the victims were still alive and removing the victim’s clothes; civil police failed to conduct adequate investigations into police killings, including by not visiting the crime scene; and prosecutors failed to hold accountable officers responsible for abuses. The result of investigative failures and cover-ups is widespread impunity.

Human Rights Watch also conducted in-depth interviews with more than 30 police officers who recounted their experiences with the use of lethal force in Rio de Janeiro.[7] We found that unlawful killings by police take a heavy toll not only on the victims and their families, but also on the police force itself. Police abuse endangers the lives of all officers serving in high-crime areas, poisons their relationships with local communities, and contributes to high levels of psychological stress that undermine their ability to do their jobs well.

Decisions by the Inter-American Court of Human Rights and Brazil’s Supreme Court

Brazil is obligated to conduct proper investigations into killings by security forces and determine if they were lawful or not. The Inter-American Court of Human Rights has ruled that “in cases of extra-legal executions, it is essential for the State to effectively investigate deprivation of the right to life and to punish all those responsible, especially when State agents are involved, as not doing so would create, within an environment of impunity, the conditions for such events to recur…”[8] An effective investigation is one that is “thorough, prompt, and impartial,” according to international standards.[9]

In 2017, the Court found that Brazil had failed to ensure independent and impartial investigations into police operations carried out in the Nova Brasília neighborhood of Rio de Janeiro—a case in which Human Rights Watch was one of the initial petitioners.[10] The Court found the police actions were “beset by omissions and negligence”; investigators failed to take “minimum measures required to establish the truth,” their actions were “biased,” and they “lacked independence.”

The Court ruled that in cases of killings, torture or sexual violence by police “an independent body, distinct from the police force involved in the incident, is put in charge of the investigation, such as a judicial authority or the Public Prosecution Service, assisted by police, criminalistic and administrative personnel unrelated to the law enforcement agency to which the possible perpetrator or perpetrators belong.”

In a 2021 decision on the compliance of the provisions set forth in the judgment, the Inter-American Court said both the Brazilian state and representatives of victims agreed that the prosecutor’s office was the independent body that should investigate  police killings and other abuses in Brazil.[11] Furthermore, the Court made clear that this independent body “should not only just have power, but also the obligation, to conduct the referred investigations, autonomously and without the participation of the police forces involved in the incident.”[12]

Similarly, Brazil’s Supreme Court has asserted that Brazil’s Constitution tasks the prosecutor’s office with ensuring accountability for police abuses. In a 2020 preliminary decision, Supreme Court justice Edson Fachin found that investigations of police abuses carried out by civil police do not meet the “requirement of impartiality, required by international human rights treaties,” stressing that the prosecutor’s office should conduct its own investigations in cases of suspected police misconduct.[13]

Justice Fachin ruled: “Whenever there is suspicion of involvement of public security agents in criminal offenses, the relevant office within the prosecutor’s office will be responsible for the investigation. The prosecutor’s office needs to carry out that responsibility ex officio and initiate it promptly, a fact that in no way diminishes the duty of police to send reports about the operation to prosecutors and to conduct investigations, of an internal nature, into any wrongdoing.”[14]

Recommendations for CNMP Resolution

It is of upmost importance that the new CNMP resolution ensures prompt, thorough, and independent investigations of killings, torture, sexual violence, and other abuses by security forces, and that the resolution is properly implemented. For that to happen, Human Rights Watch recommends that federal and state prosecutor’s offices:

Lead Independent Investigations into Police Killings and Abuses:

• Prosecutors should conduct their own investigations in all cases of killings and suspected human rights violations by security forces, in line with decisions by both Brazil’s Supreme Court and the Inter-American Court of Human Rights.
  • We recognize that opening investigations into a very large volume of cases of suspected police misconduct would require re-organizing the work of prosecutor’s offices around the country and may need to be a gradual process. Yet, it must start immediately. Prosecutors should begin by leading investigations into all cases of killings involving civil and military police.
• Require that investigations into abuses by security forces follow international standards, including the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, known as the Minnesota Protocol; the UN Istanbul Protocol on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and others.
• Require that prosecutors visit the site of police killings with forensic experts immediately after the incident and participate in the subsequent crime scene reconstructions. Police officers should not be involved in gathering evidence at the crime scene in cases involving security forces.
• Require that prosecutors take statements from victims, relatives of victims, and witnesses, some of whom may fear that providing statements to police investigators will put them at risk of retaliations by police. Prosecutors should take those statements in a safe, private space.
• Require that prosecutors provide victims and their families with updated information about the investigations, including access to the case files, except for documents that are confidential according to the Brazilian law.
• Require that prosecutor’s offices create accessible complaint mechanisms so that the public can report police misconduct and abuses, including anonymously, and obtain updated information on actions taken to address the complaint.
• Create a system of shifts so that on-duty prosecutors and forensic experts can respond in real time to complaints of police misconduct, particularly to allow prosecutors to intervene immediately and prevent further abuses during ongoing police operations.
• Require that state and federal prosecutor’s offices employ their own full-time forensic experts –who are independent of the civil police–to help prosecutors assess the quality of forensic work, participate in crime scene reconstruction, and conduct their own independent forensic analysis, among other tasks.

Establish Specialized Prosecutorial Units:

• Urge state attorneys general to establish well-resourced units of prosecutors dedicated to developing and enforcing police protocols to prevent abuses, and investigating and prosecuting police abuses when they occur. Members of the unit could develop expertise in this type of cases by analyzing patterns of abuse and recognizing modi operandi; identify and investigate specific police units and individual officers responsible for large numbers of potentially unlawful killings; and shield regional prosecutors from the risk of retaliation for investigating abuses by police officers in their jurisdiction.

Exercise Effective Oversight over Civil and Military Police:

• Require that state prosecutors review all state police protocols and training, including on the use of force, and ensure they comply with Brazilian and international human rights standards.
• Require that prosecutors work with police command and secretaries of public security to enact guidelines to prevent that police officers conduct retaliation operations after the killing of a police officer.
• Review working conditions for police officers and work with police forces to address the high levels of stress, including by ensuring police commands provide adequate psychological support to personnel through access to police and non-police psychologists.
• In line with the CNMP Resolutions n° 129/2015 and 201/2019,[15] ensure effective investigations into police killings by ensuring, among other steps, that:
• Police inform the prosecutor’s office of any killing by police immediately. 
• Police officers who are not themselves involved in the shooting preserve the crime scenes.
• Police officers keep the bodies of dead people at the scene for forensic analysis instead of taking them to hospitals, falsely claiming that the victims were still alive.
• Police officers call medical services to take victims of police shootings to hospitals, with very limited exceptions when rescue by medical services is not feasible.
• Forensic experts who are not part of the civil police carry out thorough, independent crime scene analysis in all cases.
• Forensic experts collect gunshot residue samples from the bodies of victims at the crime scene as standard practice in all cases.
• Police officers who participated in an operation that resulted in death immediately hand over all their weapons to investigators for ballistic analysis.
• Police officers and forensic experts preserve all evidence, including clothing of victims, and scrupulously record and respect the chain of custody of such evidence.
• Police officers and prosecutors investigating the cases conduct a variety of interviews with non-police witnesses and police officers who participated in the operation and their commanders, not just those officers directly involved in the alleged shootout.
• Autopsies follow the detailed guidelines included in the Minnesota Protocol, including on adequate photographs, X-rays, descriptions of all external wounds and their trajectory, dissection of tissue, sampling of clothing and skin, and detection of firearm discharge residue on the hands of victims, among other steps.
• Respond to investigatory failures by police investigations—depending on their nature and severity—by referring cases to the internal affairs division for disciplinary action, open administrative investigations of police officers, or prosecute police officers for procedural fraud, malfeasance or other crimes, if the evidence warrants it.
• Urge all states to have forensic expert offices that are autonomous from the police to ensure the independence of their work and increase their effectiveness.[16]

Promote Transparency and Accountability:

• Regularly publish reports about police killings and other abuses containing data disaggregated by race and other parameters and detailed information on investigative and prosecutorial actions taken, as ordered by the Inter-American Court of Human Rights in the Nova Brasilia case.
• Urge states and police forces to reform disciplinary systems to ensure independence and transparency.
• Urge states to strengthen independent civilian offices that oversee police, including receiving complaints of abuses, reviewing police conduct, contributing to policy changes, and improving police-community relations. States should provide them with sufficient resources to fulfill their mandate and access to all necessary information on police activities.
• Urge all states to implement the use of body worn cameras by police – beginning in precincts with the highest level of police killings – and to design protocols and operating procedures that promote transparency while also protecting privacy during the use of body cameras. Body worn camera footage can provide investigators with information on police conduct, including regarding the use of force, help shield other officers from pressure by abusive officers to participate in cover ups, and protect officers from false accusations. Footage gathered through body worn cameras should be accessed directly by prosecutors, without intermediation by security forces. Turning off cameras or failing to ensure they work properly should entail disciplinary measures.

Help Address Systemic Racism in Law Enforcement:

• Recommend that state police forces establish working groups also involving civil society and experts to examine and address systemic racism in the context of law enforcement, including through assessment of policies, practices, institutional culture, and training.
• Establish a working group at the national level, linked to the CNMP, involving civil society, experts and authorities, to assess the role of race in the work of the prosecutor’s offices, including criminal investigations, custody hearings, among other activities, through an analysis of policies, practices, institutional culture, and training.

Ensure Compliance with CNMP’s Protocols:

• Train prosecutors, forensic experts and other staff on effective oversight of police and on investigations into police killings and human rights violations, in line with CNMP’s resolutions and the Minnesota Protocol and other international standards.
• Establish mechanisms to monitor prosecutors’ compliance with CNMP’s resolutions and protocols on investigations into police killings and other human rights violations, and on police oversight, and instruct internal affairs offices at the state prosecutor’s offices to enforce those requirements.

The attorney general’s office has a key role to play in breaking a cycle of violence and impunity that undermines public security and endangers the lives of civilians and police alike. We hope these recommendations can contribute to your office’s efforts to implement decisions by both the Inter-American Court of Human Rights and Brazil’s Supreme Court, prevent human rights abuses, and, when they happen, ensure accountability.

We are at your disposal for any further information you may require.

Sincerely,

Maria Laura Canineu

Brazil director at Human Rights Watch

This post was originally published on this site