E/CN.4/2001/66/Add.2
page 50
151. The crime of torture was defined nine years later in article 1 of Law No. 9,455
of 7 April 1997 (thereafter: the Torture Act) as follows:
“Article 1. A crime of torture is defined as:
“I - constraining a person by using violence or serious threat which results in
physical or mental suffering; with the purpose of obtaining information, a declaration or
confession from the victim or third person; to provoke criminal action or omission; due to
racial or religious discrimination;
“II - submitting a person under one’s responsibility, power or authority to
intensive physical or mental suffering, by his/her use of violence or serious threat, as a
way of enforcing personal punishment or as a preventive measure.”
Although torture is defined in terms similar to those of article 1 of the 1984 Convention, the
definition in the Brazilian law does not entirely reflect the internationally agreed definition of
torture. It restricts acts of torture to “violence or serious threat” while the Convention definition
refers to “any act”. It thus does not cover acts that are not violent per se, but may nevertheless
inflict “severe pain or suffering, whether physical or mental”. It must also be noted that
according to the Brazilian definition, the crime of torture is not limited to acts committed by
public officials. However, it is stipulated that punishment is more severe “if the crime is
perpetrated: (a) by a public agent …”.70
152. While the law provides that a person must be sentenced to two to eight years’
imprisonment if convicted of torture, the sentence must be increased by up to one third in the
case of public agents.71 The same penalty, i.e. two to eight years’ imprisonment, applies to those
“who submit a person who is imprisoned or subject to security measures to physical or mental
suffering, by practising an action not contemplated by law or not resulting from a legal measure”
(para. 1). Pursuant to article 1 (2), complicity by omission by a person having “the
responsibility to avoid or investigate” such conduct must be sanctioned by one to four years’
detention. Paragraph 3 stipulates that “[i]f the crime results in aggravated or extremely
aggravated physical injuries, the punishment shall consist of confinement from four to ten years;
if it results in death, ... eight to sixteen years”. Finally, article 2 makes the law applicable to the
crime of torture not committed on Brazilian territory, provided the victim is a Brazilian citizen or
the aggressor is in an area under Brazilian jurisdiction (universal jurisdiction).
153. Before the issuance of the Torture Act, cases of torture had been exclusively classified as
abuse of authority (abuso de autoridade), or, inter alia, as battery/bodily harm (lesoes corporais)
pursuant to Article 129 of the Penal Code, homicide (where it resulted in death) pursuant to
article 121 of the Penal Code, threats (amenaças) pursuant to article 147 of the Penal Code, or
illegal constraints (constrangimentos ilegais) pursuant to article 146 of the Penal Code.
According to the information received, in particular from public prosecutors, the sentences
handed down before the Torture Act came into force ranged from 10 days to 3 months. The
number public agents who were acquitted or dismissed was always considerably higher than the
number convicted, and of those convicted about 50 per cent were convicted of abuse of authority
or bodily harm. When cases did end in conviction, law enforcement officials would appeal and
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