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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 defined.

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 in 1995.

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



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