Brazilian Military Criminal Code

The military criminal code instituted under the military dictatorship in Brazil in the 1960s created military courts to try certain crimes committed by military personnel, in particular crimes against humanity committed at the order of the Brazilian executive. Critics say that cases transferred to these courts often languish, and note that nobody has ever suffered a penalty for any of the killings and disappearances of that period.

Given the prevalence of military police in state-level law enforcement, human rights agencies have expressed concern that police impunity is in part responsible for the large numbers of police homicides. Brazilian police killed more than 6,400 people in 2022, according to Human Rights Watch.[1]

## History

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Military criminal law in Brazil dates back to the Empire of Brazil. The Brazilian imperial family organized the nation's first court, the Supreme Military and Justice Council, which later became the Superior Military Court (STM), currently headquartered in Brasília with jurisdiction nationwide. The current Military Penal Code (CPM)[2] passed in 1969 under the military dictatorship that took power in the 1964 Brazilian coup d'état, covers members of the armed forces, military police and military fire brigades, who must obey and respect military rules. The current Constitution of Brazil dates from 1988.

The Lei de Anistia [pt] of 28 August 1979 gave amnesty to everyone accused of committing political crimes during the dictatorship period, both political dissidents and military personnel, and in many respects amounted to "a form of self-amnesty for those involved in the repressive actions that took place during the dictatorship."[3] No member of the military has been held responsible for crimes committed under the military dictatorship.[4]

"Brazilian security forces have been repeatedly accused of systematic violations of human rights and of the existence of a system which guarantees the impunity of these violations. The Commission believes that there is indeed a history of abusive practices by the police..." wrote the inter-American Commission on Human Rights of the Organization of American States in 1997.[5]

## Scope

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Military police in Brazil carry out routine law enforcement duties at the state level and are responsible for keeping public order. Recent law-and-order crackdowns in the favelas of Rio de Janeiro, carried out by the military police, have resulted in many police killings of young men in these neighborhoods.[6] "The existence in Brazil of two different court systems—one civil and the other military—with varying legal proceedings and sentences for similar crimes committed by civilian police and military police", wrote Jorge Zaverucha in 2022, constituted a "violation of the basic principle of equality before the law."[7]

Law No. 13.491/17[8] adopted in 2017 by the Brazilian Chamber of Deputies modified Article 9 of the Military Criminal Code and expanded the jurisdiction of military courts to investigate actions ordered by the President of the Republic or the Ministry of State for Defence, and with respect to the security of military institutions.

## Human rights

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The National Truth Commission named 377 state agents of whom almost 200 of them were still alive, in hundreds of cases of torture, killings, and enforced disappearance under the military dictatorship.[9] President Jair Bolsonaro opposed the creation of the commission when he was a congressman and called the late torturer Carlos Brilhante Ustra a “hero.”[9]

Brazil signed the International Convention for the Protection of All Persons from Enforced Disappearance, and passed legislation in consequence, Decree 8767 of May 11, 2016.[10]

Military personnel do not have the right to strike, due to the fact that they carry weapons and a work stoppage could harm public order and the democratic rule of law, so technically this amounts to mutiny.[11] according to article 142, item IV of the Constitution of Brazil and article 149 of the Brazilian Military Penal Code.[2] While theoretically the military police are responsible to the governor of each states, illegal labor strikes have been used by the military police against a governor, usually resulting in more crime.[12]

The Brazilian military code imposes harsh penalties on members of the military who speak out, according to Human Rights Watch.[13]

## Other

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On 23 August 2019 Bolsonaro signed Decreto No. 9,985, de 24 de Agosto de 2019 authorizing the use of the military to fight fires in the Amazon.[14]

New scholars have dedicated themselves to military criminal law, among them, Jorge César de Assis, Adriano Alves-Marreiros, Guilherme Rocha, Ricardo Freitas, Ronaldo João Roth, Paulo Tadeu Rodrigues Rosa, Robson Coimbra, Lauro Escobar, James Magalhães and Leandro Antunes, who have contributed to the construction of a theory of constitutional military criminal law.

## See also

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* Constitution of Brazil

## References

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1. ^ "Brazil: Inquiry in Police Killings Falls Short: Authorities Should Ensure Accountability, Prevent 'Revenge Operations'". Human Rights Watch. 7 November 2023.
2. ^ a b Presidência da República Subchefia para Assuntos Jurídicos (29 October 1969). "DECRETO-LEI Nº 1.001, DE 21 DE OUTUBRO DE 1969: Código Penal Militar" [Decree-Law No. 1001 of 21 October 1969].
3. ^ Nielson, Rex. "Modern Latin America, 8th Edition Companion Website: Amnesty, Amnesia, and Moral Reparations in Brazil". Brown University Library Center for Digital Scholarship.
4. ^ Luiz Claudio Ferreira (March 2024). "A New World for Brazilian Military. They Are Being Prosecuted and Arrested". Brazzil (15244997) - via MasterFILE Complete.
5. ^ "REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL: CHAPTER III: POLICE VIOLENCE, IMPUNITY, AND EXCLUSIVE MILITARY JURISDICTION FOR THE POLICE". Organization of American States Inter-American Commission on Human Rights. 29 September 1997.OEA/Ser.L/V/II.97 Doc. 29 rev.1
6. ^ "Brazil on the Brazil on the 40th Anniversary of the Amnesty Law". Opendemocracy. 29 April 2019.
7. ^ Zaverucha, Jorge (5 October 2022). "Military Justice in the State of Pernambuco After the Brazilian Military Regime: An Authoritarian Legacy". Cambridge University Press.
8. ^ "LEI Nº 13.491, DE 13 DE OUTUBRO DE 2017: Altera o Decreto-Lei nº 1.001, de 21 de outubro de 1969 - Código Penal Militar". Câmara dos Deputados. 13 October 2017.
9. ^ a b Wilkinson, Daniel (13 December 2018). "No Justice for Horrors of Brazil's Military Dictatorship 50 Years On: President-Elect Jair Bolsonaro Defends Military Regime". Human Rights Watch.
10. ^ Permanent Mission of Brazil to the United Nations (2 August 2023). "To: Office of the UN High Commissioner for Human Rights (OHCHR) Special Procedures Branch: Submission of the Government of Brazil" (PDF). Geneva.
11. ^ Almir Pazzianotto Pinto (14 May 2024). "Greve ou motim?: Para evitar que o incauto seja solidário com o que não é, é preciso esclarecer que militar não faz greve, mas sim se amotina" [Strike or riot? To prevent the unwary from showing solidarity with what they are not, it is necessary to clarify that the military does not go on strike, but rather mutinies] (in Portuguese). Migalhas.
12. ^ STUENKEL, OLIVER (Spring 2023). "Can Lula Rein In Brazil's Military?". Foreign Policy (248) - via MasterFILE Complete.number=00157228
13. ^ "Brazil: Military Police Punished for Speaking Out". Human Rights Watch. 8 March 2017.
14. ^ Soares, Eduardo (19 September 2019). "Brazil: Brazilian President Signs Decree Authorizing Use of Armed Forces in Amazon Region". Washington D.C.: Library of Congress.