Brazil

Constitutional Provisions

According to Brazil’s 1988 Constitution, everyone has the right to life and to physical integrity.Art. 5, 1988 Constitution: "Todos são iguais perante a lei, sem distinção de qualquer natureza, garantindo-se aos brasileiros e aos estrangeiros residentes no País a inviolabilidade do direito à vida, à liberdade, à igualdade, à segurança e à propriedade."No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.Art. 5(III), 1988 Constitution: "ninguém será submetido a tortura nem a tratamento desumano ou degradante."Nobody will be held in custody unless there is a warrant for arrest issued by a judge with the requisite jurisdiction or unless the person was arrested in the process of committing a crime.Art. 5, (LXI), 1988 Constitution: "ninguém será preso senão em flagrante delito ou por ordem escrita e fundamentada de autoridade judiciária competente..." 

Under Article 15(XVI) of the Constitution, "all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the competent authority". However, the freedom of assembly may be restricted during a state of defenceArt. 136(I)(a)).and suspended during a state of siege.Art. 139(IV).

The Brazilian Constitution establishes that the military police are responsible for the preservation of public order and for policing.Art. 144, 1988 Constitution (as amended): "Às polícias militares cabem a polícia ostensiva e a preservação da ordem pública; aos corpos de bombeiros militares, além das atribuições definidas em lei, incumbe a execução de atividades de defesa civil."

Treaty Adherence

Global

Regional

National Legislation

Police Use of Force

The regulation of police use of force exists at both federal and state level in Brazil.

Federal Law

The 1941 Criminal Procedure Code establishes the principle of use of force in self-defence (“auto de resistência”) whereby force shall not be used except in the case of “resistance” or else in thwarting the attempted escape of a prisoner.Art. 284, 1941 Criminal Procedure Code (Código de Processo Penal DECRETO-LEI 3.689/1941 03.10.1941, Art. 284).The law further states that "if there is resistance to arrest", law enforcement officials can "use whatever means necessary to defend themselves or to overcome resistance".Art. 292, 1941 Criminal Procedure Code.

It has been asserted that this law has been used consistently in certain parts of the country to evade accountability for police killings.See, e.g. the 2009 report by Human Rights Watch,“Lethal Force”, which states that: "In nearly all cases in Rio and São Paulo in which police have killed people while on duty, the officers involved have reported the shootings as legitimate acts of self-defense, claiming they shot only in response to gunfire from criminal suspects. In Brazil, these cases are referred to as “resistance” killings. Given that police officers in both states do often face real threats of violence from gang members, many of these “resistance” killings are likely the result of the use of legitimate force by the police. Many others, however, are clearly not." At: https://www.hrw.org/report/2009/12/08/lethal-force/police-violence-and-public-security-rio-de-janeiro-and-sao-paulo. 

A 2014 federal statute ostensibly regulates the use of less-lethal weapons by law enforcement officials but also addresses the use of firearms. It calls for security agencies to prioritise the use of less-lethal weapons, provided that their use does not endanger the physical or mental integrity of police officers. Use must comply with the principles of legality, necessity, and reasonableness and proportionality.Art. 2, Federal law on Police Use of Less-lethal Weapons, Statute Nº 13.060 of 22 December 2014.It is not lawful to use firearms against a person fleeing who is unarmed or who does not represent an immediate risk of death or injury to public security agents or third parties, or against a vehicle that disrespects a police blockade on public roads, except when the act represents a risk of death or injury to public security agents or third parties.Art. 2, Federal law on Police Use of Less-lethal Weapons, Statute No. 13.060 of 22 December 2014. 

According to 2010 national interministerial guidelines on the use of force by law enforcement officials,Portaria N° 4.226, 31 December 2010.use of force must respect the principles of legality, necessity, proportionality, moderation, and appropriateness ("convenencia"). Officers "should not discharge firearms against persons except in cases of legitimate self-defense or imminent threat of death or serious injury." So-called "warning shots" are not considered acceptable because of the "unpredictability" of their effects. The ordinance also requires that an officer carry at least two less-lethal weapons. 

The national guidelines also establish that public security bodies must issue normative acts disciplining the use of force by their agents, objectively defining, among other things, the types of weapons and techniques that are authorised, the appropriate technical circumstances for their use, and the prohibition on the use of firearms and ammunition that cause unnecessary injury or constitute unjustified risk of harm.

State Law

São Paulo

A 2001 Statute defines certain unlawful acts as an "administrative violation".Art. 12, Complementary Statute n. 893/2001 of the State of São Paulo Establishes the Disciplinary Regulations for the São Paulo Military Police: "Transgressão disciplinar é a infração administrativa caracterizada pela violação dos deveres policiais-militares."The administrative violations, which are classified according to their gravity as either serious, medium, or light, include the following:

1.    In the course of an arrest, to disregard the constitutional rights of the person who is being arrested.Art. 13(1): "desconsiderar os direitos constitucionais da pessoa no ato da prisão".
2.    To unnecessarily use force in the course of an arrest or of a police action. Art. 13(2): "usar de força desnecessária no atendimento de ocorrência ou no ato de efetuar prisão".
3.    To fail to respect the physical integrity of the person arrested or detained.Art. 13(3): "deixar de providenciar para que seja garantida a integridade física das pessoas que prender ou detiver".
4.    To assault physically, morally, or psychologically a detained person under an officer's supervision or to allow any other person to do so.Art. 13(4): "agredir física, moral ou psicologicamente preso sob sua guarda ou permitir que outros o façam".

96.  To fire a weapon recklessly, negligently, unskilfully or unnecessarily (serious).Art. 13(96): “disparar arma por imprudência, negligência, imperícia, ou desnecessariamente”.

2013 Resolution on treatment of police shooting victims

Resolution SSP-05/2013, which was adopted by the São Paulo Public Security Secretariat on 7 January 2013, requires the police to call for emergency assistance immediately after shooting in order for emergency services to treat injured victims and to prevent police from removing victims from the locations where they were shot or injured. Military police are required to secure the locations of the killings and immediately notify the civil police who are charged with investigating the occurrence, and interviewing all of those involved. The new policy requires that forensic investigators go to shooting sites immediately upon being informed of a police shooting and homicides are to be recorded as “homicides resulting from police intervention” rather than “resistance” killing.According to Article 3: When police records, incident reports, crime reports and police inquiries are drawn up, Police Authorities should refrain from using the terms "resistance", "resistance followed by death" and similar expressions, which should be replaced, depending on the case, for "bodily injury resulting from police intervention" and "death resulting from police intervention".The policy was criticised on a number of points and on 16 May 2013 the Military Police issued a revised Standard Operating Procedure that permits police officers to remove shooting victims from crime scenes in two circumstances: first, in the absence of emergency health services; and second, with the express authorization of the Military Police Commander in cases in which the emergency response time is “inadequate". 

Rio de Janeiro

State-level regulations also exist with respect to use of force by Rio de Janeiro´s Military Police. Regulatory Instruction PMERJ/EMG-PM/3 Nº 33/2015 prescribes the gradual use of force by the police, listing actions that should be taken by officers before using lethal force:Regulatory Instruction PMERJ/EMG-PM/3 Nº 33 of July 2015. Doctrinal Notebook on the use of Force by the Military Police of Rio de Janeiro.

Level I - This category consists of verbalisation techniques.
Level II - This level includes options centred around gaining control, through persuasion and psychological manipulation techniques, and contact control techniques.
Level III - Due to the introduction of a physical component to the individual's insubordination, the police officer must now make use of containment and neutralisation techniques, with an emphasis on submission techniques.
Level IV - At this level, the individual's aggressive attitude leads the police officer to apply non-lethal defensive techniques.
Level V - At this level, the tactical options are geared towards the officer's survival and self-preservation, often requiring him to defend himself with lethal force.

Another Regulatory Instruction provides guidance on when military police officers may shoot.Regulatory Instruction PMERJ/EMG-PM3 Nº 044 of October 2015: Guidance on “when the Police should shoot".

Article 1 - The use of firearms by Military Police officers must be exceptional and never exceed what is strictly necessary to achieve the objective of containing a citizen in the following situations:

I.  In self-defence by a police officer or citizen at risk.
II. When there is resistance to arrest with the use of firearm or other lethal weapon.

Article 2 - The police officer must be aware of the principles that involve the firing of firearms, being sure that every shot must be justified to the administrative and/or judicial authorities, as the case may be.

Article 3 - Excessive use of force and firearms by police officers shall be subject to administrative, civil and criminal penalties.

Article 4 - The following rules must be observed in all cases: 

I.    Identify yourself as a police officer; 
II.    Clearly warn about possible firing, with sufficient time for the warning to be understood, if such a procedure does not pose an undue risk to the police or to others. 
III.    If there are victims, the police officer should, as soon as possible, provide the appropriate medical assistance.

Art. 5 - "Warning shots" are expressly prohibited, since shooting at random is a crime, according to Article 15 of Federal Law No. 10,826/2003.

Art. 6 - "Shots to prevent an escape", while the citizen is on foot or in a vehicle, are prohibited, except when the act represents a risk of death or injury to public security agents or third parties.

After the Supreme Court ordered the state of Rio de Janeiro to create a plan to reduce police lethality and control human rights violations by the security forcesHuman Rights Watch, Brazil's Supreme Court Orders Plan to Reform Rio de Janeiro Police, 2 March 2022, at: (see more information on national caselaw section below), the local government published a Decree establishing the state’s plan to reduce lethality resulting from police intervention.Decree No. 48.272 of 14 December 2022, at: https://leisestaduais.com.br/rj/decreto-n-48272-2022-rio-de-janeiro-estabelece-o-plano-estadual-de-reducao-de-letalidade-decorrente-de-intervencao-policial-e-da-outras-providencias.The plan is based on the simultaneous improvement of three areas: human resources, material resources, and administrative and operational procedures.Art. 1, Decree No. 48.272, of 14 December 2022.

Measures to improve human resources include, among others, implementing continuous training for officers aimed at understanding and applying the differentiated use of force, activities that enable the development and improvement of the police officer's socio-emotional skills, and psychological support measures for police officers.Art. 2, Decree No. 48.272, of 14 December 2022.

Regarding material resources, the plan established the provision of equipment that guarantees the efficiency and effectiveness of police activity, both in the planning of operations and in the application of the use of force, including intelligence and tactical equipment, portable cameras for individual use by the police officers involved, and more modern and sophisticated weapons, accessories and ammunition, which will “serve to improve the precision and effectiveness of police actions, which will result in a reduction in lethality, since they will ensure sufficient weapon superiority, discouraging confrontation and armed conflict”.

Finally, to improve administrative and operational procedures, the Plan requires that the police should guide their operations and administrative measures following the operations, by the following precepts: non-use of public assets of essential services as operational bases, carrying out operations when there is less movement of local population, use of cameras for individual use and collective use in special purpose vehicles, improvement of the respective investigative and correctional structures, as well as the techniques for monitoring and investigating police incidents involving the use of force and violent actions, among others.

Police Oversight

In Brazil, the military courts have jurisdiction over cases involving military crimes defined as such by the Military Penal Code. This typically covers the actions of the Military Police. There is also the possibility of policemen committing “ordinary crimes.” In these cases, they can either be tried by the relevant state court or by the federal courts. If a military officer commits an intentional crime against the life of a civilian, he will be tried by a jury.Art. 9(1) of the Military Penal Code, Decree-Law No. 1.001 of 21 October 1969: “Os crimes de que trata este artigo, quando dolosos contra a vida e cometidos por militares contra civil, serão da competência do Tribunal do Júri.”

Police officers may be charged with the commission of torture under Law 9.455/97 of 7 April 1997.The crime of torture: Lei Nº 9.455, of 7 April 1997.According to Article 1 of the Law, the crime of torture includes the following:

 I - To humiliate someone with the use of violence or a serious threat, causing physical or mental suffering:
 a.    For the purpose of obtaining information, a statement or a confession of the victim or a third party; 
b.    To provoke a criminal action or omission;
c.    Because of racial or religious discrimination;

II - to subject someone under their guard, power or authority, with the use of violence or serious threat, to suffer intense physical or mental treatment, as a form of punishment or as a preventive measure. 

The penalty on conviction is a term of imprisonment from between two and eight years. The penalty is increased by one-sixth to one-third if the crime is committed by a public official or against a child, pregnant woman, disabled person, adolescent, or person over 60 years of age. A conviction will result in the loss of public office, function or employment and a ban on exercising it for twice the term of the penalty imposed.

Concerned with the countless cases of police abuse in Brazil, Human Rights Watch recently recommended the adoption of a new resolution by the National Council of Public Prosecutors (CNMP) that “ensures prompt, thorough, and independent investigations of killings, torture, sexual violence, and other abuses by security forces, and that the resolution is properly implemented”.Human Rights Watch, Brazil: letter to the attorney general Augusto Aras, 12 September 2023, at: https://www.hrw.org/news/2023/09/12/brazil-letter-attorney-general-augusto-aras#_ftn13.

Anyone who subjects a person arrested or under a security measure to physical or mental suffering, or any act not permitted by law or not resulting from a legal measure incurs the same penalty. In addition, anyone who fails to act in the face of this type of conduct when they had a duty to prevent it or to investigate the offender, incurs a sentence of imprisonment of one to four years. If physical injury of a serious or very serious nature occurs, the sentence is imprisonment from four to ten years; if it results in death, the sentence is imprisonment from eight to sixteen years. It is further stated that torture is a serious crime and may not be the subject of a pardon or amnesty. 

Police oversight at state level

São Paulo

From 2003 to 2022, the Special Task Force on Police Control (GECEP), a unit within the state prosecutor’s office, was responsible for investigating alleged abuses committed by military police officers.See, e.g., https://www.hrw.org/news/2013/07/29/letter-governor-alckmin-and-attorney-general-marcio-rosa-about-police-violence.Resolution no. 1.516/2022 of 22 August 2022 replaced GECEP with the creation of the Special Action Group for Public Security and External Control of Police Activity (GAESP) within the Public Prosecutor's Office of the State of São Paulo. GAESP is entrusted with the constitutional mission of external control of police activity based on the Principle of Human Dignity and the Democratic Regime, in an interdisciplinary, interprofessional and interinstitutional manner, aiming at the collective protection of public security through administrative and judicial measures.

The main difference is that the new group has a broader remit than the old GECEP (which was expected to work on police enquiries and in police stations), being able to plan, propose, supervise and monitor public security policies, as well as carrying out external control of the police, including municipal guards. GAESP must have access to the data systems managed by the state's public security bodies, and may carry out state audits of police occurrences and police enquiries to obtain information useful to the institutional work of the Public Prosecutor's Office.Arti. 4(4), Resolution No. 1.516/2022. 

Rio de Janeiro

Investigatory failures

From 1999 to 31 March 2012, the Rio Police Ombudsman’s Office recorded more than 11,300 complaints against police officers concerning criminal conduct. These complaints generated only 43 criminal charges by state prosecutors and four convictions.See: https://www.hrw.org/news/2012/06/14/brazil-letter-governor-cabral-police-violence.

The “Juan” case led to the introduction of new guidelines on the investigations into “resistance killings” in Rio de Janeiro. The disappearance of Juan de Moraes was one of many incidents of police violence in 2011. Mr de Moraes disappeared on June 20 after an incident in the Danon favela in which three others were shot by military police. No serious investigation into the shoot-out took place. It was only after considerable media attention that civil police investigated the scene of the shooting and sought out eyewitness testimony. They found Mr de Moraes’ DNA at the crime scene and other evidence which indicated that no shoot-out had in fact taken place. Ten days later, they discovered his body in a river. 

After this incident, the Civil Police Chief Martha Rocha introduced civil police regulations on “resistance” killing investigations. Regulation PCERJ Nº 553 of 7 July 2011 requires civil police to immediately isolate and analyse the crime scene; to test guns used by police during the operation that led to the shooting; to collect eyewitness testimonies, and to conduct separate interviews with all police officers involved.Regulation PCERJ Nº 553, at: http://www.adepolrj.com.br/adepol/noticia_dinamica.asp?id=17680.

In April 2021, the General Coordination of Public Security of the Public Prosecutor's Office of the State of Rio (CGSP/MPRJ) was created to promote functional integration, the exchange of information and strategic coordination between the structures and executive bodies of the MPRJ around public security. One of the body's attributions is to carry out external control of police activity, including verifying the regularity, suitability and efficiency of police activity.Art. 1, Resolution GPGJ No. 2.409 of 12 April 2021, available at: https://www.mprj.mp.br/documents/20184/2137787/consolidado_2409.pdf.

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