CAT/C/39/2
page 62
infractions directly by the Public Prosecutor’s Office, without police participation, is still
controversial. This issue is under examination by the Supreme Court. Despite this situation of
lack of legal definition, there are concrete examples of special police teams operating directly
with the Public Prosecutor’s Office.
“181. Proposals have been made to replace the preliminary police investigation with an
investigation led by a prosecutor and controlled by an investigating judge, whereby all
detained persons would be brought before an investigating judge and only confessions
made before him/her would be considered admissible. The Committee members support
this proposal, but note that no action has been taken in this respect to date.”
258. The Brazilian justice system does not include judicial inquiry or “investigative judges”.
The creation of the Public Prosecutor’s Office, with the same impediments and guarantees as
those of judges, aims precisely at charging another institution with the task of penal prosecution.
The task of judging, with independence and impartiality, is reserved to magistrates. This concept
is inspired in the accusatory model of penal procedure.
259. The system of evaluation of evidence adopted in Brazilian law, known as rational
persuasion of the judges, does not establish a value relationship among pieces of evidence and
requires the judge to give the reasons for his or her decision. Besides, “… the defendant’s
confession ceases to be conclusive proof of his (her) guilt. All evidence is relative; none has a
decisive value or necessarily more prestige that another.” (Exposé on the Penal Procedure Code,
item VII). Thus, even the confession during the inquiry, by itself, unaccompanied by other
evidence to indicate the authorship of the offense by the defendant, may not be enough to bring
about his (her) conviction.
“182. Another factor that contributes to impunity is that judges do not apply the 1997
Torture Law and prefer to classify cases of torture as bodily harm or abuse of authority.
The federalization of the crime of torture has been proposed as a possible means of
overcoming the difficulties in the implementation of the Torture Law. The Committee
members found it regrettable that the procedure established by the Constitutional
amendment 45/2004, whereby the Superior Court of Justice is competent, upon request of
the Federal Prosecutor General, to transfer a case concerning serious violations of human
rights (including torture) from the local courts to the federal courts has rarely been used.”
260. The Government lacks data that would enable it to recognize that the “Lei contra a
Tortura” (Anti-Torture Law) is not being effectively applied by the judicial authorities.
Similarly, there are no available data on the result of denunciations (penal procedures) of crimes
of torture and the result of convictions for this crime or a less serious one (such as physical
harm). From the issues raised by CAT’s Report it will be important to look into this situation and
search for adequate solutions together with the Judiciary Branch.
261. The reform of the Judicial Branch accorded special treatment to serious violations against
human rights, by means of the possibility of the transfer of competence to the Federal Justice.
According to § 5 of article 109 of the Federal Constitution, “in cases of grave violations of
human rights, the General Prosecutor, with a view to ensuring compliance with obligations
stemming from international treaties on human rights of which Brazil is a Party, may raise
before the Superior Court of Justice, at any time during the inquiry or the procedure, the shifting
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents