Penal Code in Brazil
The Penal Code has been amended considerably since its adoption
in 1940 as a replacement for an older code. The Penal Code has two
sections. The first distinguishes between felonies and misdemeanors
and outlines the individual citizen's responsibilities under the
law. The 1988 constitution proscribes capital punishment, except
in case of war. The second section defines criminal behavior more
comprehensively, spelling out crimes against persons, property,
custom, public welfare, and public trust. Misdemeanors are also
In addition to the power arising from judicial warrant, decree
laws empower the police to make arrests. These decree laws provide
that any member of the public may, and the police must, arrest anyone
found in flagrante delicto. The privilege of not being subject to
arrest unless caught in the act of commiting a crime or by judicial
warrant derives from the 1891 constitution and has been included
in subsequent versions. Article 5 of the 1988 constitution states:
"No one shall be arrested except in the act of committing a
crime or by written and substantiated order of a proper judicial
authority." It states further that an arrest must be communicated
immediately to a judge who, if he or she finds the arrest to be
illegal, must order the release of the arrestee. In practice, there
have been many violations of the constitutional guarantees, particularly
in the late 1960s and early 1970s.
The process of bringing violators or suspected violators of the
law to justice usually begins in one of three ways. The first and
most simple occurs in cases of flagrante delicto. The second method
is followed when illegal activity is uncovered during routine investigative
work, after which a judge issues a warrant for the persons involved
and arrests are made. The third method involves complaints from
private citizens that, if borne out by evidence or otherwise deemed
reasonable, result in the issuance of a warrant.
The handling of arrestees varies according to the nature of the
crime, the nature of the charges, and the social status of the accused.
An arrestee who holds a university degree cannot be held in a cell
with those of a lower educational status, but has the right to a
special cell and privileged treatment. Felonies that are punishable
by imprisonment and for which the arrestee must be detained require
thorough investigation followed by trial in an appropriate court.
Offenses punishable by ordinary confinement of thirty days or less,
or by small fines, usually are disposed of quickly at the lowest
court level possible. A judge may direct that a prisoner be held
in custody pending a preliminary hearing, or the judge may allow
bail depending on the severity of the case. Prisoners may also be
released on writs of habeas corpus.
According to law,
within twenty-four hours of arrest, a prisoner must be given a copy
of the complaint, signed by an authority and containing not only
the details of the charge or charges but also the names of accusers
and witnesses. To comply with these provisions, the police immediately
must initiate an investigation; they must visit the scene of the
incident, collect available evidence, interrogate witnesses, and
compile a coherent account of what actually occurred. This information
is presented as a police report to a judge, who then sets a date
for a hearing.
The first step in the legal process is a hearing, popularly known
as an instruction session, to identify the parties involved and
to determine whether a punishable offense occurred. Except for misdemeanors,
the instruction session is not a trial but rather a hearing at which
both the prosecution and the defense are heard in presentation,
rebuttal, and final argument. If the offense is a misdemeanor, the
judge is permitted to turn the proceeding into a summary court and
pronounce sentence. If the case involves a felony, no judgment is
possible at the instruction session. If the judge believes that
there is evidence of probable guilt, the accused is indicted and
a trial date is set.
There are constant tensions between the Civil
Police and the Military
Police in most states, and sometimes these forces get involved
in shootouts. The Military Police are under the jurisdiction of
special police courts, which are independent of ordinary courts.
The courts consist of five judges--one civilian and four ranking
Military Police officials. Congressional legislation that would
place the Military Police under ordinary courts remained stalled
According to Country Reports on Human Rights Practices for 1994
, "The Military Police courts . . . are overloaded, seldom
conduct rigorous investigations of fellow officers, and rarely convict
them. The separate system of state Military Police courts creates
a climate of impunity for police elements involved in extrajudicial
killings or abuse of prisoners, which is the single largest obstacle
to altering police behavior to eliminate such abuses." Punishment
remains the exception rather than the rule.
Various studies have supported the United
States Department of State's conclusions. One study of police
crimes against civilians in the Northeast, between 1970 and 1991,
found that only 8 percent of the cases resulted in convictions.
A separate study in São Paulo found that only 5 percent of
similar crimes resulted in convictions.
In his first year as
president, Fernando Henrique Cardoso sought to address some
of the human rights violations in Brazil by unveiling a national
human rights plan and creating a division within the Federal Police
tasked with investigating human rights abuses. In April 1995, Cardoso
established an interministerial commission to address the problem
of forced labor. In addition, Cardoso sought to compensate the families
of those who were killed by state-sponsored agents during military
rule. Separately the federal Chamber of Deputies created a Human
Rights Commission within the Chamber of Deputies.
The 1988 constitution prohibits arbitrary arrest or detention,
limiting arrests to those caught in the act of committing a crime
and those arrested by order of a judicial authority. Temporary detention
is allowed for up to five days, under exceptional circumstances.
Judges are permitted to extend that period. In practice, police
sometimes detain street youths without judicial authority.
Data as of April 1997