Torture never again - Ali Rocha (Brazil)

Three decades after ending its 21–year military dictatorship, Brazil is far from eradicating torture. IBA Global Insight finds out why.

Kicks and punches to the head and body, blows with truncheons and metal bars and electroshocks are part of the daily routine in detention centres across Brazil. While, during the dark years under authoritarian rule, the victims were political dissidents, students and intellectuals, today the preferred victims are poor people in conflict with the law.

After visiting pre-trial detention facilities, prisons, young offenders’ institutions and psychiatric hospitals in four Brazilian states in September 2011, the United Nations Subcommittee for Prevention of Torture (SPT) concluded that torture and ill-treatment are widespread and systematic in detention centres all over the country and identified a generalised failure in bringing state agents to justice.

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Both military and civil police forces make frequent use of torture on people arrested while committing a crime and those arrested as suspects in order to extract confessions or information, and prison agents torture inmates as a form of punishment or humiliation to maintain discipline.

The conditions in most police facilities and prisons are terrible. The majority of cells are severely overcrowded and places of detention don’t offer the slightest possibility for people inside to live with dignity or be reintegrated into society.

Brazilian law states that each prisoner should have a minimum floor space of six square metres but in some cells they hardly have 70 sq cm; the cells are so crowded there is not enough room for all inmates to lie down at the same time and they need to take turns to sleep.

A mass incarceration programme in place since the 1990s resulted in a 350 per cent increase in the number of prisoners in the last 20 years. December 2011 figures from the National Penitentiary Department (DEPEN) show Brazil’s prison population at 514,582.

In July 2012, this figure had jumped to 549,577.

The construction of new prisons and vacancies does not correspond to the increase in the prisoner population and the deficit in vacancies stands at around 65 per cent, or 250,504 places.

The problem of overcrowding might be aleviated if alternative, non-custodial sanctions such as fines, community service or suspended sentences were applied to people who committed non-violent crimes, as recommended in a 1998 law. ‘Society is not ready to give up on a prison system, but it should only be used to contain dangerous criminals,’ says José de Jesus Filho of the National Prison Pastoral who believes that ‘between 70 per cent and 80 per cent of prisoners could have received alternative sanctions such as paying compensation to victims, doing community services, electronic monitoring and nocturnal restrictions.’ Unfortunately, however, only people from middle- and upper-class backgrounds seem to benefit from alternative sanctions.

At least half of the people serving time in Brazilian prisons are there simply because they could not pay a lawyer. Fifteen per cent of prisoners are there for theft, sometimes practised out of pure necessity, and thousands more were convicted for drug trafficking after being caught with small quantities of drugs – if they belonged to another social class they would be considered drug users and given alternative fines.

The 1988 Constitution determines that people who cannot afford a private lawyer – up to 80 per cent of people in prison, according to the Ministry of Justice – are entitled to free legal aid provided by public defence lawyers.

But some Brazilian states still don’t have a public defenders office and those which do generally have a fragile and under-resourced institution, incapable of serving all those in need and carrying out  all the tasks required.

Up to one third of people in prison – approximately 173,000 – are still awaiting trial. They have not even been tried, let alone convicted. Some have already been incarcarated for more years than the maximum sentence they would receive if convicted. And many more have already served their time, but, with no one taking care of their case, are forgotten behind bars.

Brazil’s criminal justice system hits the more disadvantaged sectors of society the hardest.

The state of calamity in Brazilian prisons is nothing new and was recently publicly acknowledged by Justice Minister José Eduardo Cardozo who said he would rather die than serve a long sentence in a Brazilian prison. ‘We have a medieval prison system which not only disrespects human rights but does not allow for reinsertion (in society).’

José de Jesus Filho says the government announced a $1bn plan for the creation of 42,500 new vacancies in prisons in 2011, but did not allocate one cent for the resocialisation of prisoners. He believes the objective of incarceration for rehabilitating prisoners is being left aside and prisons in the country are ‘seen more as a means of revenge from society and isolation of the more marginalised sectors of society.’

The situation in the country’s juvenile detention centres is no different but causes more concern given the young age of people held there – 12–21 years old. Institutions for children and adolescents were created during the repressive years of the military rule and most of them are no different from ordinary prisons for adults with a very strict disciplinary system. There is no emphasis on the socio-educational dimension of the system and nothing to enable the reintegration of the child or adolescent into society.


Between 70 per cent and 80 per cent of prisoners could have received alternative sanctions such as paying compensation to victims
José de Jesus Filho
National Prison Pastoral

Prosecutor Wilson Tafner was a member of the first team of prosecutors designated to inspect and monitor São Paulo’s juvenile detention system, Fundação CASA, back in 1999. It was a particularly critical period, when riots were frequent and images of inmates threatening hostages with improvised weapons on the units’ roofs shocked the world.

‘But people didn’t know what went on under the roofs and behind the walls of those places. They resembled concentration camps where young offenders were treated like animals,’ he recalls. When his team started their work there wasn’t a single lawsuit in place against state agents accused of torture. But, during the
ten years dedicated to this cause they managed to file more than 300 claims and win convictions of up to 70 years for some prison agents.

Tafner has seen changes and improvements in the system with a decentralisation and division into smaller units that began to be implemented in 2006. The units are smaller, hold fewer detainees, and supposedly put more focus on socio-educational activities. The main problem, he says, is that ‘the old methods of repression and oppression by force are deeply rooted among staff who see the adolescent as an enemy who deserves harsh punishment and not as someone who has made a mistake and needs help to overcome difficulties and adapt to life in society.’

He believes the notion of human rights is being incorporated into the training methods for staff and reintegration of young offenders occupies a larger part on the agenda, but it is a very slow process that involves  changing the mentality of people who do not understand these concepts.

Authorities responsible for managing the institution insist on the pedagogic nature of the units and respect for the spirit of the 1990 Law of the Child and the Adolescent (Estatuto da Criança e do Adolescente (ECA)), but Railda Alves, President of AMPARAR, an association that fights for the rights of juvenile offenders, refutes this claim. 

According to Railda, only two or three newer units have a focus on the reintegration of young offenders and offer socio-educational activities, while all the others have kept the same old militaristic punishment practices. At most, she says, ‘they have a handful of “model” inmates who have access to educational activities and might be used to demonstrate the pedagogic nature of the institution.’ She adds that the majority of kids suffer constant physical and mental abuse from staff who believe their job is to re-educate them with violence.

AMPARAR receives regular complaints and denunciations of abuse from the families of children inside. They are not isolated cases, or the actions of individual members of staff. Everyone working at Fundação CASA is directly or indirectly responsible for the constant abuse: floor coordinators, social assistants, psychologists, doctors, directors and ombudsmen. One case AMPARAR has been following clearly illustrates this.

The long road to justice

Like most detention centres in Brazil, Juvenile Internment Unit Jatobá, in the Raposo Tavares Complex, on the western side of São Paulo, has inadequate bedding, poor clothing, insufficient or inadequate food, inappropriate accommodation facilities and lack of hygiene or cleaning products. But added to the ‘usual’ problems, it had an open sewer running alongside the dining hall which was letting out a horrible stench provoking constant nausea and sickness in many of the children and adolescents in the unit.

In June 2011, the interns complained to unit coordinators, hoping for a solution, but instead of addressing the problem, staff members reacted aggressively and initiated a conflict with the adolescents. The director intervened and called an external security force in to deal with the issue.

The security force entered Jatobá armed with metal and wooden clubs which they used to beat up the kids while staff members and director looked on until ‘order’ was restored.

Despite serious injuries, the children were told to strip and sit in the cold in the outside courtyard for several hours – while members of staff washed the blood from the floors – and were only taken to see a doctor the following morning.

When mothers visited a few days later they noticed wounds on some of the children and found out what had happened. They tried to complain to the staff and to the unit director but were laughed at and discouraged from taking action with threats of further violence.


They resembled concentration camps where young offenders were treated like animals
Wilson Tafner
Prosecutor

The mothers then went to AMPARAR who helped them report the case to the public defenders’ office. The public defenders responsible for Jatobá visited the unit and submitted a report to the judge inspector.

They also reported the case to the SPT who visited the unit and found evidence of dismissal and cover-up of injuries by medical staff.

One step closer to justice: a torturer ‘outed’

This year Brazil saw two important civil court decisions against one of the most notorious torturers of the dictatorship period – Colonel Carlos Alberto Brilhante Ustra, the man in charge of the intelligence and repression agency, DOI-CODI, in São Paulo in the early 1970s.

In the case brought by the sister (Regina Maria Merlino Dias de Almeida) and former partner (Ângela Mendes de Almeida) of journalist Luiz Eduardo da Rocha Merlino – whose death resulted from a 24-hour torture session while he was imprisoned at the DOI-CODI in 1971 – the judge handed down a verdict ordering Colonel Ustra to compensate the two women.

It is the first time an individual has been ordered to pay compensation to his victims. It has usually been the state who compensates victims and their relatives.

The other case involves three people of the same family – Criméia Alice Schmidt de Almeida, César Augusto Teles and Maria Amélia de Almeida Teles – who were tortured By Ustra in 1973.

The Almeida family wanted to have Ustra recognised as the man who tortured them. They won the case in a São Paulo court in 2008, but Ustra appealed against the decision. The appeal was finally rejected in August and the decision that found Colonel Ustra guilty of torture was upheld.

This case marked the first time a Brazilian court had ever found any military official liable for dictatorship-era human rights crimes.

The ruling was also remarkable in its extensive citing of international human rights law and its finding that the 1979 Amnesty Law did not protect Ustra from civil liability, giving some hope to victims seeking reparation or, as in the Almeida case, recognition of having been wronged.

As important as the Almeida verdict was, it is limited in scope, stemming from a private civil case against a torturer in his personal capacity. The state has yet to be held civilly liable in court, and no one has been held criminally accountable for state-sanctioned abuse during the military regime.

While these are great victories for the cause to rectify the dictatorship-era’s human rights abuses, Ustra is still protected by the Amnesty Law in regards to criminal charges and his punishment now is seen as purely symbolic by most. 

Torture is a crime against humanity – it does not prescribe and it sits above all domestic law.

Shortly after the SPT visit, the director was removed and the woman who replaced her took control without resorting to violent practices.  But the truce was short lived. A few months later a male director some of the children knew well took charge of the unit. He had previously worked as a security agent and was known for being extremely violent.

Less than a month after he took office, AMPARAR received another letter from the children at Jatobá reporting physical abuse and threats of violence from the new director.

In May, public prosecutors paid a routine visit to the unit and found several irregularities as well as evidence of violence. They filed a claim requesting the judge inspector to deactivate the unit and dismiss the director.

But to their surprise, the judge inspector dismissed the claim and said she was already dealing with the case. She had organised hearings with the parties involved and had ordered the president of Fundação CASA to improve the structure and overall conditions of the unit.

The prosecutors involved in the case were not satisfied with those measures as they were not holding anyone responsible for the problems. According to Fernando Araújo, one of the prosecutors involved in the case, the judge ‘defined a deadline for the structural problems to be solved but the most important issues, such as the lack of medical assistance and physical abuse carried out by certain members of staff against some of the interns, were not being adequately  investigated.’ Araújo also pointed out that children and adolescents who are victims of violence often do not report it because they fear reprisals.

They appealed against the judge’s decision and won. They have requested that the unit director, the regional director and the president of Fundação CASA are summoned to court, and are currently waiting for the outcome, which will probably happen next year.

Meanwhile, the problems persist. In early November, Amparar received another letter from Jatobá reporting physical violence and psychological abuse.

Looking back on torture

In May 2012, Brazil installed the Brazilian National Truth Commission to investigate human rights abuses committed in the past.

The Commission’s brief is to examine the period from 1946 to 1988, but the focus of the investigations will be on the military regime (1964–1985) when the use of torture against anyone who opposed the regime, even by peaceful means, was state policy.

The seven-member group will have the power to call victims and those accused of violations to be questioned, but a 1979 Amnesty Law means they cannot try or recommend punishments for those found guilty of human rights crimes.

Although victims of the regime would like to see those who caused their suffering  punished, the findings of the Truth Commission will be important for the country by helping younger generations understand and know the truth about what happened in the so-called ‘dark years’ and by helping to write the true history of those times.
Other South American countries that went through the process of transitional justice, such as Argentina, Chile and Uruguay, overturned their various forms of amnesty laws so that they could prosecute and convict state agents who committed crimes during dictatorships.

In September 2010, Brazil had the opportunity to do the same when the Federal Supreme Court tried a case brought by the Brazilian Bar Association (OAB) alleging the unconstitutionality of the Amnesty Law but, to the disappointment of families and human rights organisations, five out of the seven judges voted to uphold it.

Three months later, the Inter-American Court found Brazil guilty of torture in the Araguaia case and ruled that an amnesty law cannot stop the punishment of serious crimes.

Although the decision was ignored by Brazil, it was considered a watershed for a group of federal prosecutors who are devoted to finding ways around the Amnesty Law and emphasising international law so they can bring culprits of the past to trial. They are aware they are a tiny minority, but hope that the facts uncovered by the Truth Commission will help to sensitise judges by revealing the human stories of the victims, most of whom had never held a weapon.

The fact that no torturer of the military period has ever faced justice is certainly a factor in the continuation of old methods. State agents fear no punishment.

The rule of torture

Criminality is on the rise and this plays a part in making society more violent. As crimes become crueler and violence increases, so does society’s tolerance to torture. 
A recent study by São Paulo University’s Center for Violence Studies found that the number of people who were totally against the idea that courts should accept proof obtained with the use of torture is getting smaller. It has gone down from 71 per cent in 2006 to 52 per cent in the latest research.

Matti Joutsen, of the European Institute for Crime Prevention and Control  (Heuni) – affiliated to the UN – states that, in many countries, politicians tend to find easy solutions for embarrassing problems. ‘Are your citizens concerned about an increase in muggings and robberies? Increase the punishment. Are there more stories of drug trafficking in the media? Increase the punishment. Has there been a repulsive case of a kidnapping or rape?


They have a handful of “model” inmates who have access to educational activities and might be used to demonstrate the pedagogic nature of the institution
Railda Alves
President, AMPARAR

Increase the punishment. But they are never worried about trying to improve social policies offered to criminals such as life alternatives or investment in prevention measures,’ he observes.  
When serious crimes attract the attention of public opinion and provoke an outcry in society, there is enormous pressure on security forces to find those responsible. In these cases it is common to have the police presenting the alleged criminal who confessed to the crime as a trophy. Although they show clear signs of torture, the methods used are never questioned. Judges should not accept confessions obtained under torture, but they often do.

Most of the findings and recommendations of the SPT report, which was published in February 2012, were not being presented to Brazil for the first time. Other UN monitoring bodies and international human rights organisations which have visited Brazil in recent years highlight the same issues and problems.

Brazil is a signatory to most international human rights treaties and conventions and following the 1988 Constitution launched several initiatives to protect the human rights of people in vulnerable situations subject to torture and ill-treatment, such as adolescents in conflict with the law and adults who are detained or imprisoned.

The country has an adequate legal framework that complies with international standards but there is a huge gap between what’s on paper and actual reality. Unreformed institutions, impunity for human rights violations of the past and a national culture that finds the use of torture against people who committed crimes acceptable, contribute to the impunity.

Probably the most important role in putting an end to impunity and eradicating torture is played by public defenders, public prosecutors and judges. They are the ones who have a prerogative of monitoring and inspecting detention centres; to report irregularities and abuse, and take action so that people who practise torture are punished for it.

State agents accused of torture should be removed from their post immediately and kept away during the investigations which should be conducted impartially and effectively. If the accusations prove to be true, they need to be criminally punished for it. Simply exonerating or transferring the person to another unit is not enough.

The Brazilian government has to make the eradication of torture more of a priority and send a clear message that torture is a crime, a crime against humanity and will not be tolerated. At the same time, it must improve the efficiency of the police, in order to reduce impunity. A better trained, better prepared police force, using the tools of intelligence, rather than physical coercion, would help to persuade the population that torture is unnecessary.

In 2007 Brazil ratified the international Optional Protocol to the Convention Against Torture (OPCAT) and had one year to install its national preventive mechanism against torture. But the draft law was only presented to the Brazilian Congress after the SPT visit in September 2011. It is now awaiting approval.

Brazilian authorities were due to respond to the SPT report in August 2012 but, at the time this issue of IBA Global Insight went to press, they still had not done so. 


 

Ali Rocha is a freelance journalist based in Brazil. She can be contacted at ali.rocha@alfixit.com