Brazilian authorities should reform laws that have been used to impose disproportionate punishments on military police officers who speak out publicly to advocate reform or voice complaints, Human Rights Watch said recently.
“A country with close to 60,000 killings a year urgently needs to consider new approaches to public security,” said Maria Laura Canineu, Brazil director at Human Rights Watch.
“Those who fight crime every day on the streets have an invaluable perspective on security policy and police reform; and should be able to express their views without fear of being punished arbitrarily.”
Brazil’s 436,000 military police officers patrol the country’s streets, a purely civilian task, but are subject to military law because they are technically considered to be auxiliary forces of the Army. Brazil’s military criminal code and various state disciplinary codes include broad restrictions on the officers’ free speech rights.
Police officers who transgress these limits can end up in prison under the military criminal code. Police commanders also have wide discretion to impose harsh penalties under the disciplinary codes.
Under article 166 of the military criminal code, criticizing a superior officer or a government decision are crimes punishable with up to a year in prison. Inciting “indiscipline” is punishable with up to four years under article 155.
State disciplinary codes that govern the conduct of military police officers, both on duty and off duty, and of retired military police officers contain similar infractions, punishable with up to 30 days in detention and expulsion from the force.
These offenses are so broadly framed that they allow for harsh punishment out of all proportion to the severity of the offense, and in some cases this is precisely what happens.
International human rights law allows countries considerable – though limited – discretion to limit the free expression rights of security force personnel. It does not, however, allow authorities to impose punishments that are disproportionate to the severity of any offense.
Darlan Abrantes, a military police officer in the state of Ceará, was sentenced to two years in prison in July 2016 after he self-published a book saying that the police force should be demilitarized. The sentence was suspended, but he had already been expelled from the force in 2014 in connection with the matter, destroying his career.
Police officers also told Human Rights Watch that they had been subject to arbitrary punishments in retaliation for speaking out in ways that angered superiors, without access to any effective remedy.
Brazilian authorities should reform laws to ensure that any punishments meted out to military police officers who transgress legal restrictions on their right to free expression are proportionate to the severity of any offense, Human Rights Watch said. They should ensure that all officers have access to an effective and impartial appeals process.
The authorities should also consider whether it is necessary and appropriate for police officers to be subject to the limits on free expression imposed under the military criminal code and state disciplinary codes, or whether a less restrictive legal framework is called for under international and regional human rights law.
Several reform efforts are under way that could achieve that purpose, and result in more accountable and effective policing. They include bills in Congress to delink the military police from the army and to abolish administrative detention, as well as proposals at the state level to reform disciplinary codes.
The unreasonably harsh punishments handed down to some police officers have a dramatic chilling effect on other members of the force, who often refrain from expressing opinions or suggestions about law enforcement reform for fear of reprisals, said Human Rights Watch.
“Officers can be imprisoned and their careers destroyed for expressing opinions about police reform that their commanders don’t like,” said Canineu. “These penalties are out of all proportion to whatever interest the government has in limiting their ability to speak out.”
Darlan Abrantes, a military police officer in the state of Ceará, self-published Militarism – An Archaic Security System, in 2008, printing 300 copies. In the book, Abrantes asserts that Brazil has a “medieval” police system in which low-ranking police officers “are not allowed to think for themselves.”
They are supposed to simply follow orders and if they criticize militarism they are detained, he wrote. Abrantes contends that transforming the military police into a civil police force would make it more efficient in fighting crime and would bring it closer to the population.
The Ceará state command expelled Abrantes from the force in 2014, under article 24 of the state’s disciplinary statute, concluding that the book contained “serious offenses” and that, in publishing it, Abrantes had demonstrated “absolute lack of discipline and insubordination.” At that time, his police record was “excellent,” Abrantes told Human Rights Watch.
A military court – made up of four high-ranking officers and a judge – sentenced Abrantes, in July 2016, to two years in prison, under article 155 of the military criminal code, for “inciting to disobedience, indiscipline or the practice of a military crime.” The prosecutor accused Abrantes of handing out his book in the police academy, which he denies.
The military criminal code does not define what actions may be considered to constitute incitement to disobedience, indiscipline, or the practice of a military crime. This gives military prosecutors ample leeway to criminalize the expression of opinions that are critical of the police command.
In Abrantes’ case, the judge imposed a suspended sentence, under which he will not spend time in prison as long as he complies with five probation conditions: not committing another crime, not drinking alcohol, not going into gambling locations, not carrying firearms or thrusting weapons, and appearing before the court once a month.
“They considered me a criminal because I dared to think differently – I dared to say that the military system is not working,” Abrantes told Human Rights Watch. “I am living proof that the military police do not respect either democracy or freedom of expression.”
Abrantes’ call for “demilitarization” is far from the fringe. More than 76 percent of military police officers polled nationwide in 2014 said that state military police forces should abandon their military structure and subordination to the army. Their link to the military, as auxiliary forces, subjects them to the military criminal code that was adopted during Brazil’s military dictatorship (1964-1985).
This issue is an important area of public debate that could have important human rights implications, given the prevalence of police abuses in Brazil. Some high-ranking and low-ranking police officers interviewed by Human Rights Watch criticized military training and structure.
In their view, the military nature of the police forces perpetuates a vision of officers as heroes fighting an enemy – suspected criminals – that can lead to excessive use of force, especially in poor neighborhoods, and to high levels of stress among officers. Instead, police should focus on preventing crime and use lethal force only when strictly unavoidable to protect life.
State disciplinary codes, some of which also date to the dictatorship, likewise contain broad restrictions on free speech and allow for disproportionate penalties for both active and retired military police officers.
The code of the state of São Paulo, for example, prohibits publishing or spreading information that may “discredit” the military police or harm hierarchy or discipline, without any further definition of what kinds of information may cause those effects.
The disciplinary codes of São Paulo and 14 other states also contain the same prohibition – not allowing officers “to discuss or incite the discussion, through any communications media, of political, military or military police matters, except for those exclusively technical when duly authorized.”
This can be interpreted to subject military police officers to punishment for any public statement about policing or public security.
Many state disciplinary statutes also confer commanders the authority to determine the gravity of the administrative infraction, which gives them broad discretion to impose harsh or disproportionate punishment. Sanctions include up to 30 days in detention in the barracks or expulsion from the force.
One such case involves Pará state military police officer Luiz Fernando Passinho. Every year, on Brazilian Independence Day, nationwide demonstrations celebrate “The Shout of the Excluded,” in which people protest against social exclusion.
Passinho took a microphone during such a demonstration on September 7, 2014, and in a two-minute speech, complained that military police officers and military firefighters are told during training that they have no rights.
“That message distorts the nature of our mission, our sense of citizenship, and has a direct effect on our relationship to the community,” said Passinho, who was not in uniform. “We cannot accept that our freedom of expression should be considered a crime.”
The general commander of the Pará State military police decided that Passinho’s speech had “violated discipline and military hierarchy,” caused “disorder” within the force, and damaged the reputation of its command.
The commander accused Passinho of having failed to exhibit a long list of values that every military police officer is required to respect, under articles 17 and 18 of the disciplinary statute of the state of Pará, including “professionalism,” “loyalty,” and “discipline.”
The commander said Passinho had violated nine prohibitions, under article 37, including by exhibiting “inappropriate behavior in public” and by publishing information that could “discredit the force or harm discipline.”
The commander ordered Passinho detained for 30 days in October 2016. Passinho has appealed the decision to the same commander who issued it, as the procedure in the state’s disciplinary code establishes.
Meanwhile, the command is persecuting him for speaking out, he told Human Rights Watch. In September, for example, the command ordered him detained for 15 days for a single instance of not wearing his hat while in uniform, he said, an infraction usually punished with a warning.
“The military command uses the disciplinary statute arbitrarily,” Passinho said. “Police officers who commit real crimes escape punishment.”
Dozens of low-ranking officers in Rio de Janeiro interviewed by Human Rights Watch in 2015 and 2016 said they were afraid of being punished for expressing opinions. Almost all requested that their names not be published, for fear of reprisal, though the state military command had given Human Rights Watch written authorization to conduct the research.
Restrictions on free speech also stifle internal debate. A nationwide study published in 2016 by Brazil’s federal government concluded that low-ranking officers believe they are rarely allowed to express an opinion different from that of a superior officer at work. They were frequently afraid to do so. More than 14,000 low-ranking military police officers participated in the study.
Many police officers are afraid not only of formal disciplinary action, but of broader retaliation they may face for speaking out. Leandro Bispo, a police officer in Pará State, faced disciplinary action in 2012, 2013, and 2014 in connection with three Facebook posts he wrote or shared.
One said that police have inadequate working conditions. Another alleged corruption and abuse within the police. A third offered scathing criticism of public institutions in Brazil without mentioning the police by name.
The disciplinary proceedings against Bispo resulted in his demotion from corporal to soldier in 2016 and required him to return six months’ worth of a salary increase that he had already received, he told Human Rights Watch. He also said there had been informal retaliation against him, for which he had no effective recourse.
His commander transferred him to the city of Porto de Moz, four hours away by car and speedboat from his home, which he believed was in response to the comments he wrote or shared on Facebook.
When Bispo filed a petition to contest the transfer, he faced yet another disciplinary proceeding, in which the commander contended that Bispo had wrongly accused him of violating internal regulations.
In December, Bispo was expelled from the force altogether for various violations of the state disciplinary statute, including requirements to revere the symbols and traditions of the military police, to respect discipline and to avoid “inconvenient” comments about the police, discrediting a superior officer, and making anonymous comments. Bispo plans to appeal to a civil court.
Bispo, who has a daughter and a pregnant wife, borrowed money from his mother-in-law to make a down payment on the lawyer’s fees and needs to pay the rest in monthly installments. He said that losing his job in a time of economic crisis in Brazil is adding to the stress of the situation.
Brazil’s Federal Government issued recommendations in 2010 urging states to reform laws and disciplinary codes to respect the rights contemplated in the country’s Constitution.
The recommendations called on states not only to guarantee the rights of police officers to free speech, especially over the internet, but to encourage their participation in public fora and initiatives, such as seminars, councils, research projects, and conferences.
In places where public security policies “are debated, publicized, studied, reflected on and formulated.” Implementation of the recommendations, however, has been disappointing.
Human Rights Framework
Under international human rights law, the right to free expression can be limited by law only to the extent necessary for respect of the rights and reputations of others, or to protect national security, public order, public health or morals.
This framework is applicable under both the International Covenant on Civil and Political Rights and the American Convention on Human Rights. Brazil is a state party to both.
In cases in 2005 and in 2009, the Inter-American Court of Human Rights found that government efforts to curtail the speech of former military officers were unlawful restrictions on their rights. However, it is generally accepted that governments have much broader leeway than in other contexts to restrict the free expression rights of security force personnel if considered necessary to protect national security or public order.
This reflects, among other things, a recognition of the state’s legitimate interests in maintaining discipline and hierarchy within the ranks and ensuring that the police and military as institutions are not politicized.
This does not, however, obviate governments’ responsibility to ensure that restrictions on the free expression of security force members are in fact “necessary” to protect national security and public order, and no more restrictive than necessary to achieve those aims.
As the special rapporteur for freedom of expression of the Inter-American Commission on Human Rights state d in 2009, members of the armed forces are “entitled to freedom of expression and are legitimately able to exercise this right, and the limits imposed upon them must be respectful of the conditions established in the American Convention.”
Limitations to that right “can be neither excessive nor unnecessary, and they must in every case meet the requirements set forth in article 13.2 of the Convention.”
In December 2016, a second-instance civil judge in the state of Rio Grande do Norte ordered an end to disciplinary proceedings against an active-duty military police officer, João Figueiredo, whom the state military police command had ordered detained for 15 days for “offending” the force in a comment he posted online.
The judge issued her ruling on the basis of “the violation of the defendant’s human rights, the violation of the Constitution regarding freedom of expression and thought, and also because of the legal flaws in the proceedings, the very clear restrictions placed upon the defense by the authority, and the disproportionality of the punishment.” The military police command did not appeal the decision.
Even where laws that restrict the right to free expression are acceptable, the punishments must be proportionate to the seriousness of the offense.