Brutal violence has exploded in the first months of 2017, leaving more than 140 inmates dead. This is the latest reminder of the chronic crisis in Brazil’s prison system, which has persisted for decades.
A policy of mass incarceration in place for more than 20 years has resulted in severe overcrowding in Brazil’s prisons, worsening already inhumane conditions. Cases of ill-treatment are widespread in prisons across the country, as has been extensively reported and documented by local and international human rights organisations.
There have been some advances in recent years, such as the creation of a National System for Combating and Preventing Torture (CNPCT), sanctioned by former President Dilma Rousseff in August 2013, and a law that made custody hearings mandatory in 2015. However, there has been little improvement in the general overcrowding, terrible prison conditions and ill-treatment – all still very much present within the system.
‘Unfortunately, a chronic lack of knowledge concerning due obligations and procedures still plagues prisons and detention facilities around the world. Too often, both prison guards and officials are unaware and untrained when it comes to prisoners’ rights, as well as their own obligations and duties to fulfil them,’ says Federica D’Alessandra, Vice Chair of the IBA Human Rights Committee and
Co-Chair of the IBA War Crimes Committee.
President Michel Temer made it clear from the beginning of his term that the protection of human rights would not be a priority for his government. Members of human rights organisations fear the situation is worsening as violence spills out from behind prison walls and into the streets.
A year of violence
Violence exploded in 2017, when on 1 January in Manaus, a riot in the Anisio Jobim prison complex (COMPAJ) erupted, lasting for 17 hours. Fifty-six inmates were brutally murdered. The next day, four inmates were killed in Puraquequara prison, located in the capital’s rural area.
Authorities declared the violence resulted from a conflict between rival gangs Familia do Norte(Family of the North – FDN) and São Paulo’s Primeiro Comando da Capital(First Capital Command – PCC) in a dispute for control of prisons in the region and the highly lucrative cocaine trade in the north of the country.
The following two weeks saw several outbreaks of violence across different prisons around the country, including two massacres in the northern states of Roraima and Rio Grande do Norte, bringing the total number of victims to 134 in just 14 days.
Then, in early April, seven more inmates were killed in Puraquequara prison. According to authorities, all the victims belonged to the FDN and were killed by other members of the gang in an internal power dispute. Some of the victims had told prison guards they had received death threats but, once again, nothing was done by the administration to prevent their deaths.
Prison authorities claimed they suspended activities and left all inmates locked up in their cells as a measure to prevent violence. It’s been suggested that this is where the victims were killed. There was little news coverage of the killings and no word from official figures.
It took President Temer three days to comment on the first massacre – the largest ever in Brazil since the 1992 Carandiru massacre, when 111 prisoners were murdered by military police following a riot. When Temer did refer to the incident – where many of the victims were decapitated, mutilated and burned – he called it an ‘accident’: ‘I want to offer my solidarity to the families whose relatives were killed in that dreadful accident that happened in the prison in Manaus,’ he said.
The delayed reaction of the President highlights the government’s indifference to the horrendous situation of Brazilian prisons. Amazonas’ now former State Governor José Melo stated that ‘there were no saints there’ and claimed ‘they were all murderers, rapists, gang members’. Melo has proven a controversial figure and the Electoral Court has just deprived him of his mandate due to irregularities during the election.
President Temer and Justice Minister Alexandre de Moraes highlighted that the prison complex was run by a private contractor, Umanizzare. ‘It is obvious there was a problem with the company. It is not possible that blades, knives, pieces of metal and firearms got into the prison,’ Moraes said at a press conference. ‘The authorities took every measure to avoid this.’
Access to justice: the first step to solving Brazil’s prison crisis
Following January’s wave of violence in Brazilian prisons, the International Bar Association Human Rights Institute (IBAHRI) has urged members of the country’s legal profession to work towards ‘improving prison conditions and creating environments where the human rights of both inmates and guards are respected, enforced and upheld.’
During its first mission to Brazil in 2009, the IBAHRI identified a deficient criminal justice system where the majority of people had little access to justice. This meant that thousands of people were exposed to human rights violations, wrongfully sent to prison and forced to live in terrible conditions, at risk of falling into the hands of prison gangs. Since then, the IBAHRI has been working extensively with lawyers, public defenders, prosecutors and judges in an effort to push for prison reform, with an emphasis on preventing torture and pre-trial detention.
The IBAHRI has published two reports on the issue to date: ‘One in Five: The crisis in Brazil’s prisons and criminal justice system’ and ‘Rule of Law and Criminal Justice in Brazil’. The first highlights the problems that need to be addressed and the second stresses the role of legal professionals in addressing these problems.
An IBAHRI training manual, ‘Protecting Brazilians from Torture: A Manual for Judges, Prosecutors, Public Defenders and Lawyers’, provides practical guidance on how to combat torture. The manual was presented during workshops in conjunction with local bar associations and distributed to public defenders across the country.
Since the 2015 resolution that made custody hearings mandatory, the IBAHRI has provided guidance to judges and local courts on how to use custody hearings to prevent the unlawful imprisonment of suspected nonviolent offenders while awaiting trial.
In its latest visit in December 2016, the IBAHRI met representatives of Brazil’s Ministry of Justice and Citizenship, the Public Defender’s Office, the Brazilian Bar Association’s Human Rights Commission and the National Mechanism for the Prevention of Torture. They offered a training session for public defenders in Brasília on the Mandela Rules, introduced by the United Nations in 2015, which establish minimum rules and conditions for the treatment of prisoners. Former UN Special Rapporteur Juan Mendez was also present at the event.
The IBAHRI will continue its work on prison reform and will be visiting Brazil in the summer of 2017, this time meeting with legal professionals in Manaus and Roraima, where the two largest prison massacres took place in January. The two states have yet to create and implement their local mechanisms for the prevention of torture. The IBAHRI will also meet public defenders and judges to evaluate the conditions in prisons and how the custody hearings should be further spread.
However, handing prisons over to be run by private companies does not exempt the state from responsibility. Prisoners are still in the custody of the state, and the state is responsible for supervising prison conditions, guaranteeing prison security and the lives of the people inside. The violent outbreaks that followed the massacre in COMPAJ all took place in state-run prisons.
The major problem lies with how the state has dealt with the prison crisis to date. When a tragedy of this nature occurs, Brazilian authorities offer short-term emergency measures that provide no real solutions, and those measures soon dwindle away, at least until the next major riot.
Contrary to Moraes’ claim, it is not only possible but practically the norm that ‘blades, knives, pieces of metal and firearms’ are accessible to prisoners, alongside mobile phones and drugs, due to the corruption of some prison agents and state authorities.
Tragedy waiting to happen
The events at Anisio Jobim were neither accidental nor unexpected. These were premeditated acts of violence, discussed during conversations on mobile phones intercepted by police taps, and outlined in letters from inmates who had received death threats. Authorities had received warnings from prison guards, public defenders, public prosecutors, government monitors and human rights non-governmental organisations saying that, unless prison conditions were improved, especially overcrowding, acts of violence would be inevitable. At the time of the massacre, the prison contained 1,220 inmates, with a capacity for 454.
Brazil’s National Mechanism for Preventing and Combating Torture (MNPCT) visited COMPAJ in December 2015, and wrote in their 2016 Annual Report that the prison administration’s control of the units was very limited, and that they were negligent regarding the actions of criminal gangs, leaving the prisoners to practically govern themselves.
The MNPCT report describes a situation of high tension between rival gangs, with prisoners claiming they could be killed at any minute, and points explicitly to the risk of riots. One member described the place as a ‘pressure cooker on the verge of explosion’.
The document made recommendations and asked the government for a plan of action, which was never implemented.
Overcrowding in Brazilian prisons has been a problem for decades, due to a mass incarceration policy implemented in the 1990s and worsened by extensive use of pre-trial detention and a new drugs law introduced in 2006.
The new drugs law attempted to differentiate between drug users and traffickers, and was seen as a progressive move towards the decriminalisation of drug use. But, the failure to establish firm criteria for distinguishing between the two, as well as a reliance on police evidence, only resulted in larger numbers of people being arrested for having small quantities of drugs on their person for recreational use, sentenced for drug trafficking and receiving the new, tougher sentences.
As a result, the number of people incarcerated for drug-related crimes increased by 62 per cent between 2007 and 2010. In 2005, the year before the law was approved, only nine per cent of prisoners were incarcerated for drug possession. By 2014, this had increased to 28 per cent.
Most prisoners cannot afford a lawyer and public defenders are scarce. There are less than 6,000 public defenders for the whole country – compared to over 10,000 prosecutors and more than 11,000 judges – when there ought to be considerably more public defenders to support all of those eligible for legal aid. It is essential that members of the legal profession make a firm commitment to ensure inmates are guaranteed humane treatment, dignity and the right to life, and hold the government accountable if it fails to comply with international standards.
More than 40 per cent of prisoners are in pre-trial detention and, according to the National Justice Council (CNJ), will wait on average one year before going to trial. In some cases, it can take several years. Often, prisoners will be acquitted or sentenced to terms shorter than those they have already served.
The CNJ calculates Brazil’s prison population at over 650,000, the fourth largest in the world, behind China, Russia and the United States. But, according to the World Prison Report, while the top three countries reduced their inmate population by nine per cent, 24 per cent and eight per cent respectively between 2008 and 2015, Brazil is moving in the opposite direction, and increased the number of people in prison by 33 per cent in the same period.
At present, most prison units in the country hold on average 70 per cent more inmates than their capacity allows for, creating an atmosphere of violence in which physical and psychological abuse has become the norm.
In the right direction
After visiting pre-trial detention facilities and prisons in 2011, the United Nations Subcommittee on Prevention of Torture (SPT) concluded that ‘torture and ill-treatment were widespread and systematic in detention centres all over the country’ and identified a ‘generalised failure in bringing state agents to justice’.
In August 2013, former President Dilma Rousseff, a victim of torture herself during the military regime of 1964 to 1985, sanctioned Law nº 12.847, creating the CNPCT. CNPCT was formed by a national mechanism and a national committee, and made up of experts who supervise places of detention and have the power to request official investigations in cases where there is evidence of torture or ill-treatment. The law also foresaw the creation of state mechanisms but, so far, only the states of Rio de Janeiro and Pernambuco have implemented working systems.
“ Hundreds of thousands of people are currently deprived of their liberty in what are, often, sub-human conditions
United Nations Subcommittee on Prevention of Torture
The SPT visited Brazil again in September 2015, and found that many of the issues they highlighted during their visit in 2011, including ‘endemic overcrowding, filthy conditions of detention, pervasive violence and a lack of proper oversight leading to impunity, have not been addressed in the ensuing four years’. According to Victor Madrigal-Borloz, Focal Point for reprisals at SPT: ‘Hundreds of thousands of people are currently deprived of their liberty in what are, often, sub-human conditions.’
Former UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Juan Méndez, who is also a former Co-Chair of the IBA’s Human Rights Institute, stressed that severe overcrowding ‘greatly impacts the living conditions of inmates and their access to food, drinking water, health care, family visits, legal defence, psychosocial support, and work and education opportunities, as well as sun, fresh air and recreation’.
Custody hearings finally became mandatory in 2015, but the service is only offered in state capitals and some major cities. Besides avoiding illegal or unnecessary detention, and therefore reducing incarceration, custody hearings were also conceived to prevent and combat torture, since they allow for the identification of any signs of police violence or torture that might disappear before a hearing takes place months later.
The accused come before a judge, who analyses the arrest’s legality, the evidence offered and whether preventive prison is justified – based on the seriousness of the crime, the possibility of escape or interference with investigations – or whether the accused should be released, with or without further cautionary measures. In most cases though, judges still opt for sending the accused to prison.
IBA Latin American Regional Forum Special Projects Officer, Paulo Coelho da Rocha, commented that ‘the judiciary should promote a more systematised (not just punctual) view of the criminal problem, that is, by applying different forms of alternative precautionary measures and criminal sanctions other than imprisonment, or the execution of the alternative penalty.’
A long way to go
Latest figures available from the CNJ show that since the custody hearing programme was implemented in February 2015, 185,000 hearings have taken place but, in more than half of the cases and in two-thirds of states, judges have generally decided to keep the accused in prison during the trial period.
In the first year of mandatory custody hearings, the CNJ registered 2,700 denunciations of torture and ill-treatment of people who had been arrested. Most referred to police violence between the time of arrest and presentation to the judge. They do not, however, have a number for how many of these accusations were actually investigated, or if any state agents were punished for committing these abuses.
Last February, human rights NGO Conectas published the report ‘Shielded Torture’, highlighting how the omission of judges, prosecutors, public defenders and doctors harms the investigation into police violence. Vivian Calderoni, the lawyer responsible for the NGO’s Justice Department, believes this is a form of perpetuation and maintenance of the daily practice of police violence.
The report examined 393 custody hearings with clear evidence of violence that took place in São Paulo criminal courts between July and November 2015. Videos and testimonies included in the report show judges and prosecutors justifying the violence, insinuating that the defendants were lying, regarding ill-treatment as natural or disregarding testimonies. In 26 per cent of cases, no investigation was launched.
‘With the best of intentions, custody hearings were introduced in 2015. But as the National Justice Council has itself admitted, in two-thirds of states they have resulted in more imprisonment. Moreover, the [UN] Subcommittee on Prevention of Torture has concluded that custody hearings in Brazil are not designed to prevent torture and mistreatment,’ said the organisation.
“ Overcrowding greatly impacts the living conditions of inmates and their access to food, drinking water, health care, family visits, legal defence, psychosocial support…
Former UN Special Rapporteur on Torture, and former Co-Chair of the IBA’s Human Rights Institute
The Catholic Church National Pastoral Commission, which monitors prison conditions in Brazil, published ‘Torture in times of Mass Incarceration’in October 2016. This report also highlighted the omission of public prosecutors in relation to cases of torture in the prison system.
In 105 cases of torture analysed in the report, no state agent had been charged or punished. Nor have there been any investigations into the denunciations of torture or related crimes (ill-treatment, abuse of authority, bodily harm) or compensation offered to the victims.
Almerigo Incalcaterra, the regional Representative for South America of the Office of the High Commissioner for Human Rights (OHCHR), has declared that impunity in cases of torture practiced by state agents is the rule, not the exception.
After the massacres at the beginning of 2017, authorities implemented several emergency measures, including the construction of new prisons, more investment in equipment and task forces to evaluate the situation of prisoners in pre-trial detention. The Minister of Justice announced a national security plan which was severely criticised by experts for showing little innovation and lacking measures that would effectively reduce overcrowding.
Although presented as new, almost 80 per cent of the proposals were already included in programmes launched since 1995 to combat violence. Many were almost identical to those announced just over three years ago, after a wave of violence at Pedrinhas prison in Maranhão state resulted in the killing of 22 prisoners. Proposals include: task forces of public defenders and the judiciary to analyse the conditions of prisons and prisoners; the construction of new prisons; more frequent use of alternative sentences; and the implementation of intelligence systems. Conectas, one of the organisations to denounce the situation in Pedrinhas at the Inter-American Commission of Human Rights in 2014, claims very little of what was promised then has actually become reality.
The building of new prisons is seen by specialists as an innocuous solution if nothing is done to diffuse the tension created by the policy of mass incarceration for non-violent crimes. Custody hearing judges should opt to use alternative, non-custodial sanctions such as community services, suspended sentences or electronic tagging, especially for first-time offenders who have committed minor offences.
A step back
After former President Dilma Rousseff was impeached and removed from power, the new government showed it has a very different approach to justice and human rights, with the emphasis on order rather than law.
As soon as President Temer took office in May 2016, still as an interim president, he eliminated the Ministry of Human Rights, causing the Inter-American Commission on Human Rights to express deep concern.
To make matters worse, in the 2014 general elections, Brazilians elected the most conservative congress since the dictatorship period, which included a ‘bullet caucus’ formed by pro-military, tough-on-crime, former security agents. Violence and crime rates are on the increase, and more than half of the population agree with the saying ‘A good criminal is a dead criminal’.
Ali Rocha is a freelance journalist and can be contacted at email@example.com