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PROTECTING BRAZILIANS from TORTURE a Manual for Judges, Prosecutors, Public Defenders and Lawyers

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PROTECTING BRAZILIANS from TORTURE a Manual for Judges, Prosecutors, Public Defenders and Lawyers PROTECTING BRAZILIANS FROM TORTURE A Manual for Judges, Prosecutors, Public Defenders and Lawyers 2nd Edition Brasília, 2013 ProteConorCTING Foley BRAZILIANS FROM torturE A Manual for Judges, Prosecutors, Public Defenders and Lawyers Conor Foley International Bar Association International Bar Association 4th Floor, 10 St Bride Street London EC4A 4AD Tel: +44 (0)20 7842 0090 Fax: +44 (2)20 7842 0091 [email protected] www.ibanet.org ISBN 978-0-948711-25-1 British Library Catalogue-in-Publication Data. A catalogue record for this book is available from the British Library. © International Bar Association 2013 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without the prior written permission of the copyright holder. Application for permission should be made to the Content Department at the IBA address. Selling without prior written consent prohibited. The views expressed in this publication are those of the contributors, and not necessarily those of the International Bar Association. Printed by: Ministério da Justiça, Secretaria de Reforma do Judiciário (Ministry of Justice Secretariat of Judicial Reform), Brasília Cover image credits: (front) Rio de Janeiro, woman runs with children during police intervention; and (back) Rio de Janeiro, trafficker is handcuffed on military policy bus © Robson Fernadjes/Estadão Conteúdo Ministério da Justiça José Eduardo Cardoso – Ministro de Estado da Justiça Flávio Crocce Caetano – Secretário de Reforma do Judiciário Kelly Oliveira Araújo – Diretora do Departamento de Polícia Judiciária Wagner Augusto da Silva Costa – Chefe de Gabinete Igor Lima Goettenauer de Oliveira – Coordenador Geral de Provimento e Vacância Washington Leonardo Guanaes Bonini – Coordenador Geralde Modernização da Administração da Justiça Author Conor Foley International Bar Association Project Coordinator Alex Wilks International Bar Association Communications, Editing and Production Team Louise Ball Hannah Caddick Kath Farrell Emily Silvester Adam Smith Graphic Design Marilda Donatelli Research and Translation Tatiana Affini Dicenzo Rita Lamy Freund Cyro Isolan Caio Túlio Ortiga Ana Paula Pellegrino Victoria Rebori Acknowledgments We would like to thank the following people who contributed their time and effort reading drafts, offering comments, advice and support: Veronica Alonso, Karolina Alves Pereira Castro, Gabriel Alves Teixiera, Eugenio Aragão, Aldo Bemvindo, Fabio Cascardo, Andressa Caldas, Ophir Calvacante, Mary Cohen, Roberto Dalledone Machado Filho, Claudia Daumas, Gláucia Falserella Foley, Isabela Garcia, Michelle Graciela Morais e Silva, Juana Kweitel, Julita Lemgruber, Renata Lima, Gorete Marques, Cyro Pereira Isolan, Nayla Nobre Piam, Danielle Renée Machado de Oliveira, Carla Quieroz, Erivaldo Ribeiro dos Santos, Helena Romanach, Belisário dos Santos Junior, Andrea Sepúlveda Brito Carotti, Maria Teresa Sadek, Illona Szabo, Fernanda Pradal and Carlos Weis. We would like to thank the following institutions for their collaboration in this project: the Federal Council of the Brazilian Bar Association, the National Justice Council, the National Prosecutor’s Council, the Federal Public Defender’s Office, the National Council of State Public Defenders, the Human Rights Secretariat of the Presidency of the Republic, the Secretariat for Judicial Reform of the Ministry of Justice, the National Judges’ Training School, the British Embassy in Brasília, the São Paulo Public Defender’s Office and the National Council of Public Defenders. We would also like to thank the following civil society organisations: CEJIL, Conectas, the Insitute for the Defence of the Right to Defence, the Innovare Institute, Justiça Global, Pastoral Carcerária and Sou da Paz. Finally, we would like to thank Sir Nigel Rodley KBE. This manual is based on a project that he supervised at the University of Essex’s Human Rights Centre and was inspired by his work on the United Nations Human Rights Committee and as the former United Nations Special Rapporteur on torture and other forms of cruel, inhuman and degrading treatment. His report on Brazil is still considered a fundamental point of reference. The first edition of the Manual was supported by the United Kingdom’s Foreign and Commonwealth Office and this second edition by the International Bar Association’s Human Rights Institute Trust. We are extremely grateful to the Secretariat of the Judicial Reform and the Human Rights Secretariat of the Presidency of the Republic of Brazil for their continued support and collaboration in this project. iii contents Table OF Cases vi Preface xi Flávio Crocce, Brazilian Secretary of Judicial Reform Foreword xiii Juan E Méndez, UN Special Rapporteur on torture and other forms of cruel, inhuman and degrading treatment 1 Chapter 1 Reforming the Justice System to Protect Brazilians against Torture 19Chapter 2 The Prohibition of Torture in Brazilian and International Law 31Chapter 3 Defining Torture and International Mechanisms to Combat Torture 53Chapter 4 Brazil’s Record in Combating Torture 73Chapter 5 The Role of Judges in Protecting Prisoners from Torture in Brazil 99Chapter 6 The Right to a Legal Defence and Safeguards Against Torture for those Deprived of their Liberty 115Chapter 7 Prosecuting Suspected Torturers and Providing Redress to the Victims of Torture 139Chapter 8 The Duty of Care towards those Deprived of their Liberty Chapter 9 163 Penal Policy, Monitoring Places of Detention and Investigating Allegations of Torture 189Appendices 275Bibliograph y Table of Cases Human Rights Committee Abdelhamid Benhadj v Algeria, (2007), UN Doc CCPR/C/90/D/1173/2003 Adolfo Drescher Caldas v Uruguay, Communication No 43/1979 (11 January 1979), UN Doc Supp No 40 (A/38/40) at 192 (1983) Alzery v Sweden, Communication No 1416/2005, 25 October 2006 Arhuacos (Villafane Chaparro et al) v Colombia, (1997), UN Doc CCPR/C/60/D/612/1995 Arutyunyan v Uzbekistan, (2004), UN Doc CCPR/C/80/D/917/2000 Blaine v Jamaica, (1997), UN Doc CCPR/C/60/D/696/1996 Blanco Abad v Spain, (1998), UN Doc CAT/C/20/D/59/1996 Bousroual v Algeria, (2006), UN Doc CCPR/C/86/992/2001 Brown v Jamaica, (1999), UN Doc CCPR/C/65/D/775/1997 Cabal and Pasini Bertran v Australia, (2003), UN Doc CCPR/C/78/D/1020/2001 Cariboni v Uruguay, (159/1983), Report of the Human Rights Committee, GAOR, 43rd Session, Supplement No 40 (1988), Annex VII A Conteris v Uruguay, (139/1983), 17 July 1985, 2 Sel. Dec. 168 CCPR/C/25/D/139/1983 Elahie v Trinidad and Tobago, (1997), UN Doc CCPR/C/60/D/533/1993 Estrella v Uruguay, (1983) (74/1980), 29 March 1983, 2 Sel. Dec. 93 UN Doc CCPR/C/19/D/105/1981 Francesco Madaff eri v Australia, (2004), UN Doc CCPR/C/81/D/1011/2001 Gorji-Dinka v Cameroon, (2005), UN Doc CCPR/C/83/D/1134/2002 Grille Motta v Uruguay, (1980), UN Doc CCPR/C/10/D/11/1977 Hill v Spain, (1997), UN Doc CCPR/C/59/526/1993 Kelly v Jamaica, (1991) (253/1987), 8 April 1991, Report of the Human Rights Committee, (A/46/40), 1991 UN Doc CCPR/C/41/D/253/1987 Kennedy v Trinidad and Tobago, (2002), UN Doc CCPR/C/74/D/845/1998. Lantsova v Russian Federation, (2002), UN Doc CCPR/C/74/D/763/1997 Lewis v Jamaica, (1997), UN Doc CCPR/C/60/D/708/1996 Lobban v Jamaica, (2004), UN Doc CCPR/C/80/D/797/1998 Mulezi v Democratic Republic of Congo, (2004), UN Doc CCPR/C/81/D/962/2001 Muteba v Zaire, (1984), UN Doc CCPR/C/22/D/124/1982 Párkányi v Hungary, Communication No 410/1990, UN Doc CCPR/C/45/D/410/1990 (1992) Rajapakse v Sri Lanka, (2006), UN Doc CCPR/C/87/D/1250/2004 R S v Trinidad and Tobago, (2002), UN Doc CCPR/C/74/D/684/1996 Rodriguez Veiga v Uruguay, (1994), UN Doc CCPR/C/51/D/487/1992 Sendic v Uruguay, (63/1979), Report of the Human Rights Committee, GAOR, 37th Session, Supplement No 40 (1982), Annex VIII Sextus v Trinidad and Tobago, (2001), UN Doc CCPR/C/72/D/818/1998 Torres v Finland, (1990), CCPR/C/38/D/291/1988 Vargas Mas v Peru, (2005), UN Doc CCPR/C/85/D/1058/2002 Vuolanne v Finland, (1989), UN Doc CCPR/C/35/D/265/1987 Xavier Evans v Trinidad and Tobago, (2003), UN Doc CCPR/C/77/D/908/2000 Committee against Torture AD v Netherlands, Communication No 96/1997, UN Doc CAT/C/23/D/96/1997 (2000) Ali Ben Salem v Tunisia, UN Doc CAT/C/39/D/269/2005 (2007) Danilo Dimitrijevic v Serbia and Montenegro, UN Doc CAT/C/35/D/172/2000 (2005) Dimitrov v Serbia and Montenegro, UN Doc CAT/ C/34/D/171/2000 (2005) Dragan Dimitrijevic v Serbia and Montenegro, UN Doc CAT/C/33/D/207/2002 (2004) Hajrizi Dzemajl v Yugoslavia, (2002), UN Doc CAT/C/29/D/161/2000 Khaled M’Barek (re: Faisal Baraket) v Tunisia, (1999), UN Doc CAT/C/23/D/60/1996 Khan v Canada, Communication No 15/1994, UN Doc CAT/C/13/D/15/1994 (1995) vi MMK v Sweden, Communication No 221/2002, UN Doc CAT/C/34/D/221/2002 (2005) Mutambo v Switzerland, Communication No 13/1993, UN Doc CAT/C/12/D/13/1993 (1994) Nikoli and Nikoli v Serbia and Montenegro, (2005), UN Doc CAT/C/35/D/174/2000 Saadia Ali v Tunisia, (2008), UN Doc CAT/C/41/D/291/2006 Inter-American Court of Human Rights Case of Almonacid Arellano and Others v Chile, Judgment 26 September 2006 Series C No 154 Baldeón-García v Peru, Judgment 6 April 2006, Series C no 147 Bamaca-Velasquez v Guatemala, Judgment 25 November 2000, Series C No 70 Bayarri v Argentina, Judgment 30 October 2008, Series C no 187 Bueno-Alves v Argentina, Judgment 11 May 11 2007, Series C No 164 Bulacio v Argentina, Judgment 18 September 2003, Series C No 100 Caesar v Trinidad and Tobago, Judgment 11 March 2005, Series C no 123 Cantoral-Benavides
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