Press Release

UN Human Rights and IACHR Categorically Reject Bill Expanding Jurisdiction of Military Courts in Brazil

October 13, 2017

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Santiago, Chile/ Washington, D.C. - The Office for South America of the United Nations High Commissioner for Human Rights (OHCHR) and the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS) express deep concern over the recent approval by the Brazilian Congress of a bill (PL 44/2016) that amends the Military Criminal Code so that intentional homicides of civilians committed by agents of the Armed Forces are tried in military courts.

 The OHCHR and the IACHR have for many years maintained that the investigation and trial in military courts of alleged human rights violations committed by members of the military—especially violations allegedly committed against civilians—preclude the possibility of an independent and impartial investigation carried out by judicial authorities not linked to the command structure of the security forces.

The two bodies call to mind that the Brazilian State has ratified several international human rights instruments that guarantee to every person the right to be tried by a competent, independent, and impartial tribunal; these instruments include the International Covenant on Civil and Political Rights and the American Convention on Human Rights.

“The military justice system should try only members of the military accused of crimes of an exclusively military nature or breaches of military discipline,” said the OHCHR Representative for South America, Amerigo Incalcaterra. “The broadening of the jurisdiction of military courts represents a serious obstacle to a fair and impartial trial, offends the principle of equal protection of the law, and relativizes the full guarantees of due process of law as well as international human rights standards,” he said.

The inter-American human rights system has consistently stated that military courts are not the proper jurisdiction to investigate and, where applicable, prosecute and punish alleged perpetrators of human rights violations. The military criminal jurisdiction, for those countries that still have it, should be restricted in scope and used as an exception, related to the functions assigned by law to the military forces, and it should never have a role in the investigation of alleged human rights violations.

The OHCHR and the IACHR have welcomed reforms adopted by several countries in the region to significantly restrict the scope of the military jurisdiction. The changes to Brazil’s Military Criminal Code that would expand the jurisdiction of military courts represent a clear setback, contrary to the American Convention and to inter-American and universal standards of human rights.

“This bill is incompatible with international obligations assumed by Brazil in the area of human rights,” said the President of the Inter-American Commission, Francisco Eguiguren. “Specifically, it contravenes the principle of judicial independence and impartiality and the principle of the natural judge, which are essential to protect all human rights in the domestic and international sphere,” Commissioner Eguiguren added.

For his part, the IACHR Rapporteur for Brazil, Commissioner James Cavallaro, noted that “it is not rational to retreat in such an important achievement of Brazil’s re-democratization process in the 1980s. The undesirable conduct of the Armed Forces in public security that currently exists in Brazil is the main reason not to have a separate jurisdiction. Under the rule of law, the protection and guarantee of individual rights from potential abuses of power rests precisely on the idea that everyone answers to the law equally, without separate jurisdictions.” The OHCHR also notes and emphasizes that the United Nations Special Rapporteur on torture recommended to Brazil in 2016 that it ensure that violations committed by military agents against civilians are tried by civilian criminal courts.

Finally, the OHCHR and the Inter-American Commission on Human Rights underscore that they approached the Brazilian State with concerns about the bill in question before it was approved. In September of this year, the Regional Office of the OHCHR sent a communication to the Federal Senate of Brazil expressing its alarm about the bill, in the light of international human rights standards. The Inter-American Commission also requested information from the State of Brazil in a communication sent on September 20, 2017, about the nature of the bill, its content, and its compliance with the obligations contained in the American Convention on Human Rights.

According to available information, the approved bill is ready for presidential sanction or veto in the coming days. Therefore, the OHCHR and the IACHR urge that the bill be vetoed in its entirety for being incompatible with international human rights standards ratified by Brazil.

 A principal, autonomous body of the OAS, the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the respect for and defense of human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

The Office of the High Commissioner for Human Rights (OHCHR) is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and in international human rights laws and treaties. OHCHR is guided in its work by the mandate provided by the General Assembly in Resolution 48/141. It is headquartered in Geneva, Switzerland. The South America Regional Office of OHCHR is located in Santiago, Chile, and covers the following countries: Argentina, Brazil, Chile, Ecuador, Peru, Uruguay, and Venezuela.

No. 160/17