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Brazil Ungoverned: The Dismantling of the National Policy to Prevent and Combat Torture

Recently, the Defensoria Pública da União (DPU) filed a lawsuit to prevent the Federal University of Rio do Grande do Norte (UFRN) from being removed from the National Committee for the Prevention and Combating of Torture (CNPCT), a body formed mostly by NGOs, entities, institutions and other members of civil society.

The request for the withdrawal of the educational institution came from Minister Damares Alves herself, at the head of the Ministry of Women, Family and Human Rights, after requesting an opinion from the General Advocacy of the Union (AGU). According to the AGU, federal autarchies – such as federal universities – would not be qualified to act as “civil entities” before the Committee.

This is not the first time that the government of Jair Messias Bolsonaro has tried to interfere in the work to combat torture in Brazil. In 2019, through Decree No. 6085/2019, the president exonerated the 11 experts of the National Mechanism for the Prevention and Combat of Torture (MNPCT), who could continue working, although without any kind of remuneration.

Although the Decree was suspended by an injunction of the Federal Court of Rio de Janeiro, it is only one of the attempts of the federal government to dismantle the national policy to combat torture. But what is the National System for Preventing and Combating Torture? What are the motives behind the government’s attacks on the System and its organs? Why is the government going against the commitments made to society and international organizations?

The National System to Prevent and Combat Torture

The National System for Preventing and Combating Torture (SNPCT) was established by Law No. 12.847 of 2013. It is the result of the commitment signed by Brazil with the United Nations (UN), through the ratification, in 2007, of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Protocol aims to foster state mechanisms that help to promote the fight against torture and other cruel or degrading treatment. To this end, states must create bodies to devise appropriate strategies, and establish a system of regular visits to institutions where people are deprived of their liberty.

Photograph: Divulgação Pastoral Carcerária

In this sense, to follow the determinations imposed by the UN, the National Preventive and Combat Torture Mechanism (MNPCT) and the National Committee for the Prevention and Combat of Torture (CNPCT) were also created.

The CNPCT is composed of 23 members: 12 represent civil society, while 11 represent the federal government. Its role is fundamental to maintain a dialogue with the government, to propose strategic actions for the prevention of any form of degrading treatment, and to maintain a proper monitoring of the actions carried out in the executive, legislative and judicial spheres. The presence of society is necessary to confront government policies that may indicate a loss to the fundamental guarantees and to the advances in public policies already achieved. Nevertheless, members of the Committee have already denounced the absence of Minister Damares Alves in its meetings, as well as the attempt to make unfeasible the agendas and the performance of civil society within the CNPCT.

The MNPCT, in turn, is a body composed of 11 experts who, through independent action, without federal government intervention, have unrestricted access to any institution of deprivation of liberty. Thus, the field work is essential to ascertain the real situation in Brazilian establishments, and verify whether the parameters imposed by national laws and international treaties are being followed.

However, the MNPCT has been facing threats to its work: in addition to the attempted dismissal of the experts, the mechanism was prevented by the Ministry of Women, Family and Human Rights from visiting the prison system in Pará, after reports of ill-treatment. The fact drew the attention of the Inter-American Commission on Human Rights (IACHR), which expressed concern over the impediments imposed on the work of the experts.

The strategy outlined by the federal government is of total invalidation of the work done by the system as a whole. On the one hand, the impediment to on-site visits by experts and the withdrawal of financial resources is a way to obstruct the gathering of information and the investigation of denunciations. On the other hand, silencing civil society or preventing universities, for example, from being part of the CNPCT allows the government to have more control over the organizations that participate there. Thus, several agendas are left aside and there is no dialogue between government and society.

Torture as the rule in Brazilian prisons 

Faced with this scenario of dismantling in national policy, along with the health crisis due to the Covid-19 pandemic, the already chaotic Brazilian prison system is witnessing an increasing number of cases of torture. Starting with the very torture represented by overcrowded prisons in the midst of a pandemic caused by a lethal virus that, to be fought, requires social distancing and hygiene measures from society, factors that are definitely not found in Brazilian prisons.

Moreover, the greater incommunicability experienced during the pandemic made it difficult to access what happens inside the prison and, consequently, created greater opportunities to leverage institutional violence and the use of torture techniques in the treatment of prisoners. According to a survey conducted by the Pastoral Carcerária, between March 15 and October 31, 2020, 90 cases of torture were reported in Brazilian prisons, while in the previous year, in this same period, there were 53 notifications, which reveals an increase of 70%.

A recent episode, in 2021, was a report published by the Inspector General’s Office of the Court of Justice of Mato Grosso, which denounced medieval practices of torture imposed on prisoners in a penitentiary in Sinop. The report detailed the aggressions practiced by the prison guards, which included the indiscriminate use of tear gas, pepper spray, shooting with non-lethal ammunition, and even practices such as the pau de arara, a method known to have been used during the military regime.

Such practices are not only recurrent, but are also encouraged. In a video lesson for a preparatory course for a military police exam, a former captain of the São Paulo Military Police taught torture techniques and confessed to having participated in violent acts that led to the death of several detainees.

It is important to emphasize, however, that the pandemic only highlighted a latent reality of institutional violence within the Brazilian prison. The year 2019, for the Pará prison system, was marked by the so-called “Altamira Massacre,” a rebellion among inmates that left a balance of 62 dead. Such episode culminated in a federal intervention, authorized by the Ministry of Justice, headed at the time by Minister Sérgio Moro, through the Penitentiary Intervention Task Force (FTIP), which began to control 13 Pará prisons.

In October of the same year, the Federal Public Ministry (MPF) filed a complaint of widespread torture and mistreatment inside the establishments under the custody of federal agents – which was even compared to a Nazi camp by a lawyer-member of the OAB – bringing reports of prisoners who suffered aggressions such as the use of pepper spray, blow brooms, nails in the feet, in addition to the deprivation of proper medical care. As a result of the MPF’s action, the Bolsonaro government was even denounced by the opposition in a letter that was sent to the UN special rapporteurships that belong to the High Commissioner for Human Rights.

The chaotic scenario of widespread torture in the Brazilian prison system also recently drew the attention of the Inter-American Commission on Human Rights (IACHR), which published a report on February 12, 2021, entitled “Situation of human rights in Brazil.” In the document, the IACHR showed concern about the constant denial of the historical past of the civil-military dictatorship, which generates a process of destructuring of policies, including the National Policy to Combat and Prevent Torture. It also pointed out that this process is directly related to the significant growth of torture cases in Brazilian prison institutions. Finally, the Committee reiterated the importance of the MNPCT in the protection of the fundamental rights of persons deprived of their liberty and stated that Presidential Decree No. 9,831/2019, which weakened the Mechanism, was an object of concern.

Even with the knowledge of this reality, impunity for cruel and degrading treatment still resists in the post-1988 democratic order. According to the United Nations High Commissioner for Human Rights (OHCHR), based on a report prepared by UN experts, the investigation and punishment of state agents for torture is practically non-existent.

The future of Brazil in the face of the dismantling of the national policy to prevent and combat torture

In light of the above, it is worth remembering that the Brazilian democratic order was restored after 21 long years of seeking to change the dictatorial reality, which obviously meant changing the institutional panorama of the use of torture as a systematic practice by the State. For this reason, the prohibition of torture and other cruel and degrading treatment is recognized by the Brazilian legal system as absolute, non-negotiable and non-graspable, in light of the fundamental nature that involves the dignity of the human person.

The Democratic State of Law, by nature, is incompatible with torture, which leads us to conclude that the dismantling of national anti-torture policies, which is being promoted by the current government, represents an immeasurable regression and, inevitably, brings us closer to a reality that harks back to a dark and authoritarian past.

The strategy outlined by the federal government, therefore, is to interfere in the System for Preventing and Combating Torture and suffocate it, from the inside out, until its work is practically unviable. Thus, Jair Bolsonaro and his Ministers can sustain the narrative of a country committed to human rights, but which, in truth, articulates a real deconstruction of the fundamental rights won in the post-1988 constitutional order.

By Milena Coelho Angulo [1] and Rafaela Assan Lopes da Silva  [2] 

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[1] Law student at the Federal University of Minas Gerais (UFMG). CJT outreach worker.

[2] Law student at the Federal University of Minas Gerais (UFMG). CJT Extension Intern.

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