Written by Augusto Zimmermann
Saturday, 23 February 2008
Only a very small
number of crimes are ever successfully prosecuted, even first-degree murder and
rape. The objective of this article is to offer a broad account of the manifold
deficiencies in the application of criminal laws in
According to the
IBGE (Brazilian Institute of Geography and Statistics), around 600,000 people
were killed in
For purposes of comparison,
the thirty-year civil war that devastated
The arm of the law has never been so poorly applied in the country. In some areas of the Brazilian cities, criminals have established what Brazilians describe as a "parallel government." In favelas (shantytowns), drug lords have assumed a position of total dominance over community institutions.
These areas have
become completely exempt from the normal processes of law and order, with
public authorities not even daring to go there, expecting to be ruthlessly
attacked by criminal groups if they so dare. And there is a strong feeling amongst
Brazilians that these no-go areas are spreading. In today's
"Violent crime can strike at any time and in any place. Crowded city streets offer no refuge, as muggers prey on pedestrians and occupants of motor vehicles while onlookers go silently about their business. Those not wealthy enough to convert their dwellings into fortresses can never be certain that one day intruders might not force their way in and commit violence against them."
internationally as the Cidade Maravilhosa (The Marvellous City),
In May 2004, Rio's
security secretary, Anthony Garotinho, acknowledged that the situation is
clearly running "out of control," and that "to say the opposite
would be to ignore the reality." A vivid description of such a stark
reality has been provided by this May 2003 article published in
"Heavily armed drug gangs launched a series of audacious attacks that have shocked the city's residents. Homemade bombs were thrown at the luxury Hotel Le Meridian on Copacabana beachfront and at a hotel and restaurant in nearby Leblon... Shots were fired at the up-market Hotel Glória. A grenade was thrown at one shopping centre and another was machine-gunned. Scores of buses [were] burned out and gun battles close the city's main roads."
If crime and violence
constitute serious problems in
According to Luiz
Antônio N. Garcia, the president of the Democratic Ruralist Union (UDR), when
land invasions are carried out, "the police stand by with arms crossed,
because the government has no will to enforce the law." According to the
"Many persons were killed in recent years in conflicts involving disputes over land ownership and usage. The land rights organization known as the Movement of the Landless (MST) continued its campaign of invasion and occupation of private and public lands that it wanted the federal and state governments to expropriate for land reform. The MST also continued its occupation of public buildings. MST activists often used confrontational and violent tactics, and destroyed private property during some occupations."
In April 2004, the
MST "gave hell" to
Such has this been the case that even the renowned constitutional law professor Ives Gandra da Silva Martins, from the highly prestigious University of São Paulo, accuses the MST of constantly "trampling on the rule of law."
Violence Against Children
There are several provisions in Brazilian law regarding the protection of children against all forms of abuse, violence, and sexual exploitation. But the basic problem here is the enormous gap separating children's rights as inscribed in law from their effective exercise or guarantee in practice. According to Page:
the gap separating rhetoric and reality emerge more starkly than in the
contrast between the guarantees afforded children by the 1988 Constitution and
the cold-blooded assassination of boys and girls who live on city streets. If
there is anything that most vividly symbolizes the perversity of the
contemporary wave of violence in
There are now seven million abandoned children living on the streets of Brazilian cities. Crimes against these children are characterized by extreme brutality and include torture and dismemberment. Often their bodies are left out on the streets "to serve as example for others."
Those who manage to survive another day are left worrying about where their next meal will come from and finding a safe place to sleep. A social worker has suggested that these children are subject to a process of "natural selection," in which only the strong survive to adulthood and the weak die early from disease and violence.
Street children, utterly deprived of their most basic needs, often become victims of death squads or other forms of violence born of their precarious situation. Since they often resort to theft to survive, some people have paid death squads to "clean up the streets" and get rid of such an "inconvenience."
Unfortunately, many Brazilians believe that the extra-legal killing of street children is a legitimate measure to combat criminality and violence, because they feel revolted with the unrealistic legal "solutions" provided by the state. As Page explains:
"What rackets up public outrage against street urchins even higher is the cloak of impunity that protects children who kill, assault, and rob. The legal system does not brand them criminals but instead uses the more euphemistic term infratores (lawbreakers) and does not subject them to punishment.
statute enacted in
Also noticeable is that the Brazilian Constitution openly stipulates that teenagers between the ages of fourteen and seventeen cannot work in hazardous, unhealthy, nocturnal, or morally harmful environments. In practice, however, even small children engage in such work and activities, including drug trafficking and child prostitution.
A 2002 report from the International Labor Organization (ILO) reveals that more than 3,000 girls from the sparsely populated state of Rondônia are subject to conditions of slavery and prostitution.
Working children are left vulnerable to all sorts of accidents in the workplace. There are many reports of children illegally working in areas such as the charcoal, sugarcane, and footwear industries. They have reportedly suffered accidents and illness, including "dismemberment, gastrointestinal disease, lacerations, blindness, and burns caused by applying pesticides with inadequate protection."
According to law, children can only travel with the permission of their parents. But in practice, many of them have been trafficked for prostitution. Girls from rural areas are recruited in cities as prostitutes by strip clubs and modelling agencies, as well as through "wanted" advertisements. Along the coastal areas, sexual tourism involves child prostitution and is facilitated by travel agents, hotel workers and taxi drivers.
The United Nations has estimated that around 500,000 Brazilian children are victims of sexual exploitation. The U.N. also states that in the northern and northeastern regions, "most sexual crimes against children and adolescents are not investigated, and in some cases representatives of the judiciary are involved in those cases."
Violence Against Women
women is, historically, a frequent occurrence in
A 2001 study by the Perseu Abramo Foundation found that 2.1 million Brazilian women become victims of physical abuse every year. Put another way, every 15 seconds a woman is beaten in the country. The study also states that 6.8 million women have received beatings from their partners, relatives, and other acquaintances.
According to the Health Minister, Saraiva Felipe, in 2004 alone 189,000 women over the age of 10 were admitted to hospital with fractures, dislocations, and traumas received to various parts of the body, including the skull.
Violence against Workers
Under the Brazilian
Constitution any form of forced labour is strictly forbidden, the Criminal Code
punishing perpetrators with no less than eight years jail. However, cases have
been reported of forced labour in
In such areas,
forced labour has involved the exploitation of children in activities such as
agriculture and the raising of livestock. Moreover, illegal immigrants from
"The abolition of forced labor [in Brazil] has been hindered by failure to impose effective penalties, the impunity of those responsible, delays in judicial procedure, and the absence of coordination between the various governmental bodies."
The ILO estimates that in the Amazonian region alone 25,000 people are working as slaves in a range of activities varying from the clearing of jungle for ranchers to the production of pit iron for charcoal smelters. The ILO says that these people have been treated "worse than animals."
They live under plastic sheeting with no sanitation, and eat from tin cans previously used to hold pesticides. Their workday is from dawn to dusk, and gunmen are hired to ensure order and prevent any from escaping. Some congressmen have been discovered benefiting from this very sort of slave activity on their own ranches.
There is little
doubt that impunity is a major contributing cause of criminality in
The police in fact rarely catch criminals, because cases are normally not investigated diligently, even when they would involve very serious offences like rape, torture and first-degree murder. Instead, police investigations are often conducted in an utterly superficial and incomplete manner, if not visibly performed with bad-faith.
As a result, even the most nauseating cases of first-degree murder may not produce sufficient evidence to initiate the trial of a well-known perpetrator. Brazilian courts condemn only 1% of all suspects for first-degree murder.
Judges argue, among other things, that this is because inquiries transferred to the courts by the public prosecution are so poorly elaborated that it leaves insufficient evidence to condemn even a notorious serial killer. As for those who have been convicted of serious crimes such as first-degree murder, sentences are so lenient that they are freed after only a few years in prison.
With regard to crimes concerning violence against women, the vast majority of criminal complaints are suspended without final conclusion. A 2002 document of the World Organization Against Torture (WOAT) states that only 2% of complaints have led to any conviction.
As for those very
few cases resulting in any form of conviction, the WOAT points out the
shortcomings inherent in "very light" punishments for first-degree
murder and rape. According to Dr Norma Kyriakos, a former attorney-general of
"Instead of giving him [the criminal] community service [or jail sentence], judges propose he pays for a basket of food or other goods for a charitable institution. And so the man keeps doing it because he knows that's all he'll have to pay... Women today are still afraid to go to the police because they are afraid of their attackers... They know that when they are finished here with the delegada [i.e.; female chief police] or judge they are on their own again."
A case that richly illustrates the current situation occurred in 1983. It concerned a woman who was left paraplegic after suffering numerous murder attempts by her husband. After waiting more than 15 years for any judicial decision, she decided to file, with the Inter-American Human Rights Commission, a lawsuit against the Brazilian government. The outcome was that in 2001, members of the Commission judged the Government guilty of negligence, omission, and tolerance with regard to domestic violence against women.
Dr. Candido Mendes
Prunes, a jurist with a Ph.D. from the prestigious University of São Paulo
(USP), has commented that ongoing policies regarding public security in
Included in this "package" are the lack of preventive policing, the lack of ability to investigate cases diligently, and the important matter of judicial delay. The last "incentive" has occurred, he explains, because long police enquiries can allow offenders to benefit from the statute of limitations, limiting the time allowed to try suspects.
As a practical consequence, the Brazilian population is naturally inclined to believe that criminals have very little or nothing to fear from the state in terms of punishment. This environment of impunity explains why so many Brazilians have resorted to taking justice into their own hands.
And despite how primitive such do-it-yourself justice may seem, mob executions and lynchings have become a daily occurrence across the nation. Such behaviour can be seen as a spontaneous reaction to the numerous instances of theft, rape, and murder that exist.
Indeed, the Organization of American States (OAS) has suggested that such actions represent a natural solution to "the lack of a functional and effective police system, and the fact that the public does not believe in the effectiveness of the justice system." According to political-science professors Katherine Hite and Leonardo Morlino,
"The majority of Brazilians attribute high levels of crime and everyday violence to weak authority. Yet citizens also perceive the... police as corrupt, unjust, and above the law. Thus, while there is indifference and even support for harsh treatment of alleged criminals, there is also a strong sense that "justice is a joke" and "impunity is widespread.""
An argument that is
unduly simplistic is that which attributes the growth of first-degree killings
to poverty. Since poverty has been a constant in
Despite this, criminality is ordinarily interpreted by the Brazilian elite as merely stemming from a socially deprived environment. Such an interpretation is somewhat understandable in light of the guilt and shame felt by the elite, as it bears primary responsibility for the state of the nation.
But this view fails to consider that crime can also be the simple result of personal choice. While there is truth in the suggestion that some criminals have emerged from a background of social deprivation, such determinism is demonstrated inadequate by the many exceptions to the rule.
It is, after all, an unfair slur on the many millions of poor Brazilians who, having grown up in utterly deprived socio-economic conditions, are nevertheless honest citizens who have never resorted to crime. Besides (and by way of contrast) numerous are the crimes currently committed by members of the Brazilian elite, particularly wealthy youngsters, corrupt judges, bad politicians, and "white-collar" people such as public officers, doctors and lawyers.
The main motivation for such crimes is not need but greed, because the perpetrators know that the lei da impunidade ("law of impunity") is the "law" most commonly applied to people like them.
Naturally, the combination of poor education, poor work habits, and a difficult socio-economic environment can make some people to find in crime an alternative form of employment. In the context of impunity and a lack of incentives for honest economic activity, the option of crime can indeed appear attractive.
It is surely more attractive in the present circumstances than if there were a real fear of punishment. Unfortunately, the easiest target for dangerous criminals are those who cannot afford to pay for "special protection" and have had their constitutional right to public security violated by the Brazilian government.
Given that the number of Brazilians murdered from 1985 (the last year of the military regime) to 2005 grew by 237 percent, many critics of the military regime have sought to ascribe to that period of authoritarianism the present malady, suggesting that it may have contributed to the country's present "culture" of violence and impunity.
While it would be
fair to argue that the level of repression was never as severe as in
"torture became the main weapon employed by security forces to subdue
those thought to be subversive." This was particularly true during the
administration of General Emiliano Garrastazu Médici (1969-1974). In that time,
agents of the Second Army's OBAN (Operation Bandeirantes) and
These agents could
decide whether a "subversive" should be dealt with according to the
judicial process or by means of torture and assassination. And there were also,
in addition to government agencies such as OBAN and the DOI/CODI, heavily
armed, quick-response assault teams for fighting the subversives. The most
notorious of them was the ROTA, a specialist squad consisting of a few hundred
"In the first
nine months of 1981, near the end of the dictatorship, the
Alternatively, another hypothesis proffered by some academics to at least partially explain the explosion of criminality is that radical leftists, who resorted to terrorist activities during the military regime and subsequently served time in prison, passed on to common criminals their subversive ideology and, above all, the skills they had developed.
They did so perhaps in the naïve belief that any "social injustice" of a capitalist society somewhat justified criminal behaviour. They would have embraced a political theory that paints the common criminal as a "poor" victim of society, seeing his illegal behaviour as somehow constituting a form of political activism, an instrument wielded by the oppressed classes against the capitalist system.
Such a utopian view has no basis in social experience. More tragically, these political activists would have ignored the fact that the main victims of crime and violence were, and still are, people from the lower and middle classes. Even so, observes Page,
"There is evidence that political prisoners were held together with common convicts... in the late 1960s and early 1970s, and that the latter learned from the former not only how to organize and defend their rights within the penitentiary but also some of subtleties involved in planning and executing bank robberies and kidnappings.
this was the period when inmates founded the "Red Command," a network
that enabled organized crime to take virtual control of major prisons in the
"In all modern societies," notes Ralf Dahrendorf, "young people account for by far the majority of all crimes, and notably serious crimes, including homicide, rape, assault, and robbery." Even so, Dr. Ib Teixeira, a respected expert on criminality in Brazil, points to the anomaly of having a 17-year-old being able to vote for the President of the Republic but not eligible to be held accountable for criminal acts.
This person can face no more than a three-year internment in an "educational establishment." In such "educational" environments, genuinely dangerous youngsters are not properly segregated from those children who are only socially deprived. As a result, the latter have been tortured, murdered and sexually abused by the former, with the complicity of governmental authorities.
Whereas Brazilian teenagers are authorised to vote at the age of 16, they will not be criminally liable until reaching the age of 18. According to the Brazilian Constitution, "minors under 18 years of age may not be held criminally liable and shall be subject to the rules of the special legislation."
As a result, every
17-year-old juvenile delinquent, even if he is a notorious serial killer, can
only be punished with internment for no more than three years in an
"education establishment." This status of impunity explains why thousands
of Brazilian children are currently working (and risking their lives) in
criminal organizations. In
form the backbone of criminal gangs, feeling secure against police enforcement
on account of legal impunity... The absurd situation that has brought disrepute
It is not unfair to
argue in general terms that police officers in
In some states, the salary of such officers begins at just a few dollars above the minimum wage fixed by legislation. For a career demanding courage, discipline, and sensitivity, the state has provided a very low salary and inadequate training. Due to visibly poor wages, honest officers end up by living with their families in poor areas normally under the control of drug gangs.
Brazilian police officers have constantly been involved in instances of extortions, kidnappings, the torturing of suspects, arbitrary detentions, trafficking of narcotics, and executions by death squads. Rather than expelling such bad officers from the police force, some authorities have actually decorated them.
In 1997, the
When Rio's state police executed a record one hundred people in April 2003, public-security secretary Anthony Garotinho proudly appeared on television to explain that those killings were, in his opinion, a very "positive development." He made it very clear to the population that the police, at this time, would have limited the killings "only" to dangerous criminals.
seemed quite relevant, for it is certainly not always that the police kill
"only" criminals. On 2 April 2005, for example, the police in
The Brazilian judiciary has long been in a state of crisis and remains so in spite of several attempts to reform it. In fact, the judiciary has been so rife with corruption that years could be spent writing about them, the media regularly reporting corruption scandals among judges. It is no wonder, then, that a 1991 poll found that 30 percent of Brazilians now support vigilante justice, feeling the courts have failed them.
are often accused of participation in a vast range of corrupt activities, from
embezzling public funds, to passing lenient sentences on dangerous criminals in
return for bribes. In 2003, the police found a judge from the Superior Court of
Four years earlier,
Judges and lawyers
have also been discovered participating in huge schemes to defraud the
social-security agency by means of granting excessive awards to claimants. And
because the trials of criminal offences in
In addition, the last days of military government (1964-1985) coincided with an incredible rise of politicization in the Brazilian judiciary. Since the 1980s, many judges have coalesced around the idea of "alternative law," arguing that the courts should cater to the expectations of the "marginalised" and "oppressed," by resisting what they regard as "wooden and violent generalities of the state law."
According to Megan J. Ballard, a more dogmatic interpretation of alternative law "posits that judicial power ought to be rallied to the service of poor masses in their struggles." However, as Ballard points out, "detractors argue that alternative law will lead to anarchy because it encourages judges to consider themselves to be above the law and the sole interpreters of popular will."
When judges in a survey were presented with the basic choice of applying a clear legal norm and promoting their own vision of "social justice," three-quarters expressed their preference for the latter over the former. In doing so, they argue, the courts would be morally bound to "play an active role in reducing social inequalities."
This is, for instance, how a judge from the Supreme Court (STF) describes his peculiar way of deciding legal cases: "Whenever I face a controversial case, I do not look for the dogma of the law. I try to create within my human character a more adequate solution."
Behind the exhortations of such alternative-law judges we often find the post-modern doctrine of philosophers like Jacques Derrida, for whom there is no fixed meaning in language, including in the language of the law. Brazilian judges who accept this axiom repudiate objectivity in any legal norm, arguing that legal interpretation is entirely subjective, and that every judge should be free to "deconstruct" positive laws so as to decide their cases on the basis of "the best interests of the oppressed classes." This being so, because, according to law professors Ratnapala and Moens,
“Postmodernists revive the ancient philosophical skepticism about the possibility of any objective knowledge... Thus, knowledge is seen as a form of power. This view radically undermines the idea of law as rules capable of being objectively determined and impartially applied to ascertainable facts."
Naturally, one may
suggest that social inequalities could possibly justify a more politically active
role for the Brazilian courts. But we only need point to the research that
found that the country's judiciary is directly responsible for the reduction of
One of the main reasons for such a reduction of investment is the perceived lack of law-enforcement of contracts by the judiciary. Indeed, a June 2006 article published by The Economist explicitly says that the Brazilian courts "cannot be counted on to uphold contracts."
This perception that judges do not properly apply the law has discouraged private investment and reduced the willingness of debtors to pay creditors. Potential creditors are now reluctant to lend money to entrepreneurs (and the poor), as they reasonably conclude that judges will be unwilling to protect them from any opportunistic behaviour from their borrowers.
Even when the legal
norm is broadly regarded by commercial lawyers as being absolutely clear about
a creditor's right, judges may prefer not to enforce it. Housing mortgages,
which are very important for the working class, scarcely exist in
however, people in
These people believe that judges have failed them by passing lenient sentences against dangerous criminals, and have thus decided to support a "parallel system" of "real justice" to deal with criminality. In a study on vigilante justice, the sociologist José de Souza Martins observed:
In the lynchings that occur in capital cities, the poor and working-class demonstrate their will. They are their own judges, rendering decision about the crimes to which they are subjected, in so doing demonstrating the importance to them of recovering a predictable system of formal justice.
Although judicial politicisation is surely not the only reason for "popular justice," it can nonetheless be argued that judges might contribute to the problem by bringing about uncertainty and unpredictability in the formal legal system.
If trials are normally seen as unavoidably uncertain and not objectively just, then, argues High Court of Australia judge Dyson Heydon, "the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases."
A Cultural Explanation
Due to the chasm
that separates law on paper and "law" in practice in
As Rosenn explains, "Brazilians refer to law much in the same manner as one refers to vaccinations. There are those who take, and those who do not." Such laws are ineffectual despite their putative validity.
One of the most outstanding examples of law not taking hold involves the prohibition of a popular gambling racket called jogo do bicho (animal's game). Prohibited by law for more than one hundred years, the illegal activity employs more than 700,000 people and grosses more than 150 million dollars a month.
Although the game
still remains illegal, candidates for public office have sought support from gambling
bosses, "who are known to contribute heavily to political campaigns."
Brazilians often say that there is only one "law" that is always respected when you are rich or have "powerful" friends: a lei da impunidade ("the law of impunity"). Brazilian society is pervaded by a "double ethic," where people in theory appear to be ruled by general and abstract rules of law but in practice are far more regulated by unwritten social norms, which, as Roberto Da Matta says, "promulgate and protect the ethic of privilege and those who act on it." Accordingly, ways around the law can be obtained through a range of factors related to conditions of wealth, social status, and ties of family and friendship.
A phrase that is typically applied by people who expect such special treatment is, "Você sabe com quem está falando?" (Do you know whom you are talking to?). It is often used by individuals who wish to somehow disobey formal rules, and as such is applicable to a vast range of situations.
A common application is when a police officer is trying to apply a fine for a parking infringement. In such a case, it is the officer himself who risks being punished if he tries to enforce the law.
Another phrase is "filhinhos de papai" (the father's dear sons), an expression which implies nepotism and abuse of influence. Such phrases are used when someone is trying to impose their will on other individuals and the law itself.
It is not so much that the person declaring personal exemption from the law in question necessarily views it as being wrong or unfair. It is just that he believes the law does not apply to a person like him; to obey it would be beneath him. The premise is that he possesses the privilege of being "more equal" than others, and so exercises his prerogative to ignore the law with impunity and utter arrogance.
Respecting the law
in the country thus often implies a condition of social inferiority and
disadvantage when one is rendered subject to it. The fact that many people in
societal ills that can be traced at least in part to slavery. For example, the
slave owner could do as he pleased with his slaves without having to answer to
anyone for the consequences of his actions. The master-slave relationship
replicated the medieval relationship between Portuguese king and his subjects,
and it came to define the link between the powerful and the powerless in
Naturally, if the powerful uphold the law only when it suits them, other members of society will endeavour to do the same. People, thereby, feel themselves less morally compelled to obey laws and start resolving social conflicts by "parallel" means, such as through social influence, corruption, and even violence (e.g. vigilante justice, lynchings, and land invasions). These alternative responses to the lack of legal protection end up undermining to an even greater extent prospects for a realisation of the rule of law.
This article has
attempted to offer some legal and extra-legal explanations for the rise of
crime and violence in
fundamental issues of an extra-legal nature that have hindered the realization
of the rule of law in
Zimmermann, L.L.B., L.L.M., Ph.D. ( Monash University ) teaches constitutional
law at Murdoch University ,