In February 2018, the Brazilian Federal Government ordered a federal security intervention in the State of Rio de Janeiro, allegedly to respond to a crisis of violence. In this context, police forces and the prison system of the state have been placed under the command of a military General invested with broad authority to restore order.
Violence in Rio de Janeiro, however, has actually increased since the intervention began. According to the Intervention Observatory report, the facts are alarming: from February 16 to April 15, 1502 shootings were reported, which resulted in 284 deaths and 193 people injured. In the previous period, from December 16 to February 15, 1299 such events were reported. Crossfires also produced 12 massacres and 52 casualties. In the same period in 2017, there were 6 massacres and 27 deaths.
Additionally, there is a great risk that the increasing violence will consolidate into impunity, in violation to the Brazilian constitution and under the Supreme Court’s eyes. The debate revolves around the expansion of the jurisdiction of military justice (in opposition to the ordinary justice) to prosecute crimes involving civilians – be they defendants, or victims of human rights violations committed by members of the armed forces.
The 1988 Brazilian constitution succinctly states that the military justice system “is responsible for prosecuting military crimes as defined by law.” What military crimes are and what will thus fall under the jurisdiction of military justice is defined by statutory law. Two pieces of this legislation are direct legacies of the dictatorship of 1964: the Military Criminal Code and the Code of Military Criminal Procedure.
The former establishes, for example, that crimes committed by civilians “against military institutions” are to be considered “military crimes” and thus fall under the responsibility of military justice (composed for the most part of military personnel who are on active duty and have no formal legal education).
This authoritarian system of military justice has never been altered by the democratic order started with the democratic Constitution of 1988, either by legislative or judicial means. Although an appeal challenging the jurisdiction of military justice to prosecute civilians (ADP 289) was submitted in 2013, it has languished on the docket of the Brazilian Supreme Court without any decision.
Other legal actions have challenged legislative changes which have expanded the jurisdiction of military justice even more in recent years. These actions are aimed at recent provisions which expressly establish that the use of the Armed Forces in guaranteeing law and order is to be considered military activity for the purposes of applying the jurisdiction of military justice, and which define as a “military activity” the use of the Armed Forces in “subsidiary activities” such as actions “against cross-border and environmental crimes” and “repressing crimes that have a national and international impact.”
Recently, the Supreme Court began to consider a direct appeal of unconstitutionality aimed at removing the jurisdiction of military justice in these cases (ADPF 5032). In that case, Justice Marco Aurelio, acting as rapporteur, indicated that the jurisdiction of military justice over law and order and fighting crime activities conducted by the armed forces is constitutional. Justice Fachin disagreed. Finally, the debate was suspended at the request of Justice Roberto Barroso. Until the case is resumed and the question is definitively settled, expansive use of military justice will continue.
Over the last decade, legislation that expanded the jurisdiction of military courts was extensively applied in Rio de Janeiro when military personnel were used in “social pacification” missions in the favelas, resulting in several episodes of violence by members of the armed forces against the local population. In July 2017, with the resurgence of the discourse defending the need to toughen repression of criminality, the Brazilian Federal Government issued a decree authorizing the use of the armed forces for public security functions in the State of Rio de Janeiro – initially, until December 31, 2017, but the period was later extended to the end of 2018. Calling on the armed forces for security tasks and even for surveillance duty in prisons has been quite common since then.
In this context, in October 2017, President Michel Temer sanctioned new legislation extending once again the concept of military crime, this time to cover intentional homicide perpetrated by members of the Armed Forces against civilians (Lei 13.491 de October de 2017). This change means that the civilian police no longer have any power to conduct investigations into soldiers who kill civilians in the exercise of subsidiary activities such as in public security or policing tasks. The investigations and the prosecution of these crimes – which were previously submitted to a civilian jury – are now left in the hands of the military. The new law, which violates the constitutional provision establishing the competence of the jury in such cases, is now in force. And appeals challenging its constitutionality are also pending in front of the Supreme Court (ADI 5804 and ADI 5901).
But this is just one of the laws that make up the legislative constellation which is gradually strengthening the impunity of State agents who commit violations of fundamental rights against the civilian population. Recently bills that reinforce this authoritarian ethos have been presented in Parliament proposing, for example, self-defense to be presumed when a state agent kills or injures a civilian carrying some specific kinds of illegal guns and new causes of exclusion of criminal responsibility for public agents involved in the federal intervention in Rio de Janeiro. (Projeto de Lei 352/2017; and Projeto de Lei 9564/2018 and Projeto de Lei 9733/2018, respectively)
In that sense, the federal intervention in Rio de Janeiro itself has been defined as being of a “military nature” by the decree that established it which, in addition, appointed as controller an active-duty general who thus adds the functions of Secretary of Security to his regular functions as Eastern Military Commander (Executive order n. 9.288, February 16, 2018).
The real impacts of the militarization of justice and social life in Brazil still need to be assessed. A recent episode illustrates some of its most dreadful consequences, however. In November 2017, a combined operation between the army and the civilian police in a favela in the state of Rio de Janeiro resulted in eight killings of civilians. Sixth months after this tragic event, the pending investigations failed to come to definite conclusions or any charges – even in the face of solid evidence.
The reason why makes explicit the connection between state violence (promoted by the use of armed force in public security) and impunity (guaranteed by the expansion of the jurisdiction of military justice): according to Human Rights Watch, the Armed Forces – based on the enlarged jurisdiction of military courts – is preventing its members from even appearing before the state prosecutors in charge of the investigations.
Suggested citation: Andrés Del Río and Juliana Cesario Alvim Gomes, The Federal Intervention in Rio de Janeiro: Militarization of Public Security, Expansion of Military Justice and Impunity for Human Rights Violations, Int’l J. Const. L. Blog, Jul. 18, 2018, at: http://www.iconnectblog.com/2018/07/the-federal-intervention-in-rio-de-janeiro-militarization-of-public-security-expansion-of-military-justice-and-impunity-for-human-rights-violations/
 Silvia Ramos. À deriva: sem programa, sem resultado, sem rumo. Rio de Janeiro: Observatório da Intervenção/CESec, abril de 2018. Available at http://observatoriodaintervencao.com.br/relatorios/
 Available at: http://fogocruzado.org.br/balanco-4-meses-de-intervencao/
 Operação deixa pelo menos sete mortos no Complexo do Salgueiro, um dia após PM ser assassinado. Extra, Casos de policia, Rio de janeiro. 11 de Novembro de 2017. Available at: https://glo.bo/2HmAGzB; O caso dos sete mortos que ninguém matou. EL PAIS, brasil. 15 de Novembro de 2017. Available at: https://brasil.elpais.com/brasil/2017/11/14/politica/1510686437_487995.html