U. S. Department of Justice Office of Justice Programs Bureau of Justice Statistics WORLD FACTBOOK OF CRIMINAL JUSTICE SYSTEMS Brazil NCJ 199270 by Pedro Scuro Section I. GENERAL OVERVIEW Legal and Political System Brazil is a republic composed of a federal district (Brasília, capital of the union) and 27 states. These are subdivided into municipalities (municípios, autonomous politico-administrative units governed by mayors (prefeitos) and municipal councilors (vereadores). The states have their own constitutions and are autonomous within the rigid framework of federal constitution (promulgated in October 1988). The president of the Republic is both chief of state and head of government, elected by direct popular vote for a term of 4 years (reelection being allowed only once). Legislative power is exercised by the two houses (Senate and Chamber of Deputies) of National Congress, with power to rule over all matters coming under the jurisdiction of the union -- chiefly fiscal policy, political, and administrative organization. The legislative process is arduous and complex. Bills that originate from the president, the Federal Supreme Tribunal (Supremo Tribunal Federal), the High Court of Justice (Superior Tribunal de Justiça), federal deputies, prosecutor-general, or citizens begin in the Chamber of Deputies. Those from senators or state assemblies start in the Senate. A bill of law is submitted to technical, material, and formal analysis by at least one of many corresponding committees (the Chamber has 16 standing committees and Senate, 7). Once approved, the bill must be voted in a plenary assembly, then clear the other house, where it can be amended. It is then returned to the originating house where amendments are evaluated. Depending on the subject, the approved draft will be considered by the president of the Republic, sanctioned or vetoed, entirely or in part. A presidential veto is not decisive, since it can be overridden by congressional vote and the bill sent back to the executive for promulgation. The federal constitution guarantees relative administrative and financial autonomy to the judiciary. Judges have full-time jobs in the various courts, including the Federal Supreme Tribunal (composed of 11 members named by the president with Senate's approval). The Tribunal resolves differences between states, and among the political or administrative sectors of the union. It also deals with complaints against higher authorities, such as the president of the Republic or Congress, decides on the application of writs of habeas corpus relief (not) issued by lower instance courts. It equally pronounces on the constitutionality of laws and decrees, and judges common-law crimes perpetrated by the president, ministers of state, and members of Congress. It has power to hear and decide the suspension of political rights of any citizen, including congressmen. In order to hear complaints against members of the judiciary and determine their temporary or permanent suspension, the Federal Supreme Tribunal chooses three justices to compose an administrative and correctional council. The same practice is adopted by regional (state) circuit courts, whose design, composition, and competence are defined by state constitutions and respective laws on judicial organization. Since 1988, in addition to their regular duties, higher federal and regional circuit courts are responsible for all matters concerning appeal and review. Special military tribunals and judges decide cases in which members of the armed forces are involved. Electoral judges and courts register political parties and control their revenue, fix the date of elections, and prosecute and judge electoral crimes. A complex structure of labor judges, courts, and councils settle conflicts between workers and management. Brazilian law is embodied in five codes (civil, commercial, civil procedure, penal and penal procedure), preceded by a Parte Geral, which is an overlay of concepts and principles derived primarily from legal scholarship. This makes the legal order somewhat static, and law is presented not as a process for perception and resolution of problems -- as in common law countries -- but as a set of established principles, rules, and institutions. Argument proceeds from the more general and abstract to the less general but transcendent. Emphasis is on inclusive definitions, neat conceptual distinctions, and broad general rules. There is no testing of definitions, distinctions, and rules against reality. Lawyers are trained to make facts fit into conceptual structures, to preserve rule from exception, and to smooth out the rough spots (Merryman, 1996:78). Section II. CRIME 1. Classification of Crimes Felonies The following are felony offenses: * "Crimes against life": intentional homicide, abortion, major assault, endangerment of life and health, defamation, offenses against personal freedom (intimidation, kidnaping, trespassing, privacy, etc.); * "Crimes against property" (theft, robbery, blackmail, embezzlement, fraud, etc.); * "Crimes against immaterial property"(plagiarism, intellectual rights, invention, trade marks, unlawful competition); * "Crimes against the organization of labor"(e.g., abusive strikes, lockouts etc.); * "Crimes against religious sentiment and respect for the deceased"; * "Crimes against social mores" (forcible rape, sexual assault, abduction, child abuse, illegal activities related to prostitution, etc.); * "Crime against family" (bigamy, adultery, child neglect, etc.); * "Crimes against public welfare" (arson, sabotage, damaging public transportation, endangering public health (e.g., drug offenses) etc.); * "Crimes against public peace" (inciting or making apology of crime, organized crime); * "Crimes against public trust" (counterfeiting, etc.); * "Crimes against public administration" (corruption, abuse of authority, etc.); * "Crimes against the environment" (felonies perpetrated against the fauna and flora, pollution, desecration of cultural heritage, etc.) Misdemeanors The following are misdemeanors: * to unlawfully produce, import, export, store, sell or carry weapons; * to divulge contraceptive practices; * negligence; * to cause public unrest; * gambling; * begging; cruelty to animals; * failure to report a crime, and other acts. In Brazil a penalty is not considered -- ideally at least -- "punishment for a crime," but as a "condition for the devolution of freedom," directed to the "presumed social adaptability" of the offender. There are then alternative forms of criminal sanction for misdemeanors and felonies -- compulsory community service" and temporary "interdiction of civil rights" during the time the penalty is enforced (ordinarily less than 1 year, although it is up to the magistrate to decide). Age of Criminal Responsibility The Penal Code applies to persons age 18 or older. Juvenile offenders between 12 and 17 are subject to the Statute of Children and Adolescents (1990). They can not be sentenced to imprisonment. They are detained in appropriate institutions or in custody under a secure training order (if convicted of murder or of certain other grave crimes) for up to 3 years (see below, Section XI). Children (under 12 years old) cannot be tried on indictment. Drugs Law number 6368 (1976) prescribes the penalties (detention from 3 to 15 years and fine) for all intentional acts involving the cultivation, production, manufacture, extraction, preparation, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of internationally controlled drugs. To acquire, keep or carry dangerous drugs for one's own usage are indictable offenses punishable by fine and 6 months up to 2 years detention. Drug offenses are considered by the majority of Brazilian legal scholars as crimes against public health, acts that are harmful or dangerous not exclusively to individuals, but mainly to the "legal interest of the community." 2. Crime Statistics Crime and violence rates in Brazil are relatively high. During the 1990s there were more homicides in Brazil than in the United States, Canada, Italy, Japan, Australia, Portugal, Britain, Austria, and Germany taken together. Comparatively, four times as many people died of violent causes in Brazil as in Costa Rica; nine times as many as in Argentina. In the Americas only Colombia, Honduras, and Jamaica endure higher rates. The huge increase in serious crime is, in the opinion of law enforcement officials, intimately linked to drug trafficking, gang feuds, vigilantism, and disputes over trivial matters, in which young, unmarried, uneducated males are involved. Between 1991 and 1999, according to a survey of 3,000 criminal cases in the city of São Paulo, males committed the overwhelming majority of offenses (97% of the robberies and 89% of the thefts) although they were committed by males 47% of the general population. Persons age between 18 and 21 committed 44% of robberies and 35% of thefts. Most were unmarried and with almost no formal education. Many of the crime figures in this report are official data, based on national figures of reported crimes compiled by the Ministry of Justice from information provided by chiefs of police (state secretaries of law enforcement). The homicide rates illustrate substantial fluctuations from year to year as well as an overall upward trend (table 1). The crime trends in the State of São Paulo are based on a private research institute's estimate of serious crimes reported to the police (table 2). Pattern counts are presented by yearly quarters, useful for assessing seasonal and climatological (weather-related) crime rate variation. By 2001, crime and violence showed a large increase. In the state of São Paulo, this was mainly due to the increase in carjacking (autotheft at gunpoint, often resulting in kidnaping and/or homicide) -- 138 cases in 1999, 233 in 2000, and 261 only in the first semester of 2001. Otherwise, general crime figures in São Paulo were down in 2001 by 1% in relation to the previous year. In contrast Rio de Janeiro had fewer carjackings: 91 cases in 1991, 124 in 1992, 63 in 1993, 24 in 1999, 9 in 2000 and just 2 in the first semester of 2001. São Paulo police believed that the rising figures in carjacking resulted from the crime displacement of former bank robbers, although young and petty criminals were also committing the same offences. Section III. CRIME VICTIMS 1. Crime Victim Survey Findings The following victimization data are derived from criminal offenses reported to the police in the city of São Paulo from 1998 to April 2000 (tables 3, 4, 6, 7, 9, and 10). They were included in a routine survey by the Command of Metropolitan Police Patrol (, see also ). Specific locations of personal victimization and commercial crimes, "hot spots of predatory crime," are presented ((Sherman et al., 1989) tables 5, 8, and 11). Cases of victimization reported to or discovered through arrests by law enforcement agencies throughout the country are presented for the first 6 months of 1999 (table 12). These data show the distribution of the victims of different types of criminal offenses or events, and the states where victimization occurred in larger numbers and greater frequency. 2. Victim/Witness/Offender Assistance There are several federal and state government agencies, programs and legal provisions to assist victims of crime. These include programs for a variety of people: * victims and witnesses of crime; * victims of the Nazi regime in Europe; * victims of the Brazilian military regime (1964- 1986); * victims of torture; * victims of child trafficking; * victims of drug trafficking; * police officers slain in the line of duty; * and offenders who have turned state's evidence (see item 4 below). The largest amount of restitution and reparation paid so far was to the victims of political persecution during the military regime, more than 1,500 of whom have been served in the last two decades, through judicial decision or specific government programs. The total government expenditure in those cases is not precisely known. A recent presidential decree is expected to provide $65 million USD (U.S. dollars) to another 1,500 victims of political persecution in the near future. Legislation in favor of the victims of other types of crime is also recent, but successful suits are few and the amount collected negligible. The 350 delegacias da mulher is a police division that specializes in the protection of women who are the victims of various forms of injury. This includes the following: bodily harm, threat of physical injury, rape, lewdness, indecent exposure, sexual harassment, seduction, abortion, slander, defamation, and mistreatment. 3. Victim's Roles The role of victims in the criminal processes is considered absolutely crucial. Although they, or their families and legal representatives, do not have the right to prosecute crimes on their own, they may do the following: * initiate or join a penal action; * act as assistants in the prosecution (that is, in a suit already initiated by the Ministério Público - - see Section VI); * be informed about decisions, case appeals, or dismissals and acquittals; * influence prosecutors' and judge's decisions; * become a civil party and sue for damages; * collect damages, financial debts; * participate in the granting of precautionary measures to the accused; * pardon the offender to halt legal proceedings (in crime cases initiated exclusively by means of a complaint). 4. Victims' Rights Legislation The list below includes a few victim assistance programs that resulted from legislative initiatives and are run by state and federal governments: * Federal program of assistance to victims of crime, threatened witnesses, and offenders willing to help criminal investigation and prosecution (1999); * Protocol of mutual juridical assistance (Brazil, Argentina, Paraguay and Uruguay) in criminal matters -- compensation for victims of crime (2000); * Special commission of inquiry on the existence in Brazil of valuables and property confiscated from the victims of the Nazi regime in Europe (1997); * Interamerican convention on international child trafficking -- care and protection of victims (1998); * Convention for the repression of trafficking persons and prostitution (1959); * Convention restricting or prohibiting the use of certain conventional weapons -- protection to war victims (1998); * National Prison Fund (FUNPEN) -- to support programs for assisting victims of crime (1994); * Legal assistance for government agents slain on duty (2001); * Convention against torture, cruel penalties and inhumane treatment -- prevention, assistance and medical treatment for the victims (1991). The newly implemented federal witness program (1999) for those prepared to testify against police or local officials lacks financial support and political backing (Human Rights Watch, 2001). Section IV. CRIMINAL PROCEDURE AND RELATED MATTERS The criminal procedure is an actum trium personarum, involving the performance of leading roles (judge, plaintiff, and defendant), and of the supporting roles of committed actors (victim and attorney) and non-committed players (police, experts, clerks, and auxiliary court personnel). In civil law countries, like Brazil, every crime and penalty must be embodied in a statute enacted by the legislature. Criminal procedure is inquisitorial, written rather than oral, and the role of accuser is appropriated by a public official. Trials are not averted by a plea of guilt. A confession can be admitted as evidence, but only the court, not the defendant, prosecutor or police, determine guilt. Plea negotiation, one of the most customarily accepted practices in common-law criminal justice processing, is therefore discarded, as procedure remains not public (restricted to the eyes of defense counsel, prosecutor, and magistrate), written, and closely supervised by a judge. Cases are prepared by a prosecutor (member of Ministério Público), but inquests are conducted by a "non-elected sheriff," that is, a chief police district officer (delegado de polícia), who is a law school graduate, and full- time public employee. In matters involving organized crime the Federal Supreme Tribunal has recently (1997) ruled that judges are free to seek evidence themselves and to control the nature and objectives of investigative and examining phases as well. As in every other criminal case, however, the dossier compiled remains open to inspection by the defense counsel. 1. Investigation, Search, Seizure, Detention Typical Flow of Events and Legal Standards Many criminal cases are initiated by reports of alleged offenses made by victims or their representatives to the authorities (police, prosecutors' office, or to a criminal court). An "a delatio criminis" is made possibly with a description of the alleged crime and the identity of the accused. Procedure can also be initiated by persons other than victims and their representatives (notitia criminis). Whatever the mode of initiation, further action is always determined by the delegado de polícia, a chief judicial police district officer, who is a law bachelor, and full-time public employee responsible for: * ordering investigations; * screening cases subsequent to arrest in order to determine which should be prosecuted or dropped; * notifying defendants of the charges; * setting bail. The case is then forwarded to a prosecutor, who decides whether to declare a case pending or, if he/she cannot form an opinio delict, requests more evidence, by returning the file to the delegado. During the phase of investigation and adjudication (instrução criminal) the accused remains free, except in case of delito flagrante -- or organized crime -- here he or she is "caught in the act" either by a citizen or police officer. "Caught in the act" means that the person was committing the crime, just perpetrated it, was being pursued by the police, offended the victim or any citizen, or was found close to the crime scene with incriminating evidence (weapons, stolen property, records, documents, concrete objects, or circumstances). The apprehended person should be handed over to the delegado de polícia. Within 24 hours the latter must notify the accused of the motive of the arrest and the names of the witnesses to the crime. The notification is then sent to the judge, who may grant pretrial release (liberdade provisória). If the judge agrees that the accused was indeed detained for being "in the act," he will order a trial within 10 to 30 days. Legal Evidence The collection of direct and circumstantial evidence, hearing witnesses and voluntary confessions excludes the use of torture, mistreatment, coercion, threats, promises, or fraud. Authorization for police inquests is granted for a period of 10 to 30 days (in case the defendant is not in custody). In exceptional and urgent cases, prosecutors can order searches and evidence gathering without authorization from the court. They must notify the judge and request confirmation of the procedure within 8 hours. Any evidence obtained illegally -- such as by tapping telephones or surroundings, or interfering with private correspondence and documents, or with the assistance of informers -- will be challenged and excluded from the proceedings. Police Crime Laboratories Judicial police have special units and forensic labs, manned with specialized, full-time personnel (coroners with background in medicine and law, forensic pathologists, physicians, experts in toxicology and ballistics) to autonomously conduct inquests. These units often take active part in criminal investigations by reporting the results of their inquests to the delegado de polícia. Their analyses are normally accepted as competent and unbiased even by defense attorneys. 2. Pretrial Release/Preventive Detention Pretrial release can be decreed at any time during investigation or adjucative phase, provided the judge is convinced that the accused will not destroy, hide, or forge evidence, attempt to influence co-defendants and witnesses, and, most importantly, appear in court at all times as required. Past behavior or circumstances of employment, family and residence, and the extent of the harm caused are also important conditions for pretrial release. Conversely, if the accused was caught "in the act" perpetrating a serious offense then, upon a formal application or a request by the delegado de polícia or prosecutor, the court may impose preventive detention. This is done as a means of ensuring public or economic order and to secure the enforcement of law. It can be done at any time and as long there is enough evidence on the circumstances of the crime that indicate the accused is the most probable perpetrator. Preventive detention may be revoked and replaced by cautionary measures such as: * house arrest and supervision; * reporting regularly to the court or law enforcement agency (usually to a delegado de polícia); * prohibition on leaving the venue or the jurisdiction where the trial will be held; * prohibition of frequenting places or to communicate with certain individuals; * restraining order (in case of domestic violence or rape, for example); * bail. 3. Legal Rights of Suspects/Accused The suspect/accused has these legal rights: * to be informed specifically and clearly of the charges; * to be assisted by family, attorney, or legal aid to advise of arrest; * to assistance, during the preliminary investigation, by a defense attorney or public defender; * not to give self-incriminatory evidence; * to request investigation of the facts or circumstances that might establish innocence; * to declare directly to a judge; * to be informed of the content of the investigation; * habeas corpus, particularly if the accused is threatened with violence or subjected to coercion or abuse; * to adhere to the constitutional precept of silence, or to declare while not under oath; * not to be tortured, or treated in a cruel, inhumane, or degrading manner; * not to be subjected to investigative or detention techniques that alter freewill or volition, even when freely consented to; * not to be tried in absentia, except in cases of involvement with organized crime (still controversial and not universally accepted by judges); * jury decision by secret ballot. 4. Pretrial Diversion Due to its civil law context, pretrial diversion by means of a meeting of the opposing parties in a case with a judicial officer, for the purposes of stipulating matters of agreement, thus narrowing the trial to things in dispute, disclosing information about witnesses and evidences, etc., is out of order in Brazil's courts. Filing of diversionary defense motions (motion for discovery, motion for suppression, or motion for a bill of particulars, etc.) is also unnecessary; the dossiers compiled on a case remain permanently open to inspection by counsel and prosecution alike. Despite this pretrial diversion has occurred. In large jurisdictions overwhelmed with criminal cases, there has been an undetermined amount of pretrial diversion through bargaining that is unacknowledged by judges, and worked out between prosecutors and defense attorneys who plead guilt on behalf of their clients in exchange for a shorter sentence. Also, due largely to adoption of American legal experience, depending on the seriousness of offenses, willingness of the accused to help inquiries (e. g., in Brazil, in cases against organized crime), or reconciliation between husband and wife (domestic violence), etc., there has been an increasing amount of diversion (that is, formal halting or suspending of traditional criminal proceedings), involving: * counseling, tutoring, crisis intervention, job assistance, and guidance with school and family problems; * placing offenders in detoxification centers, or in community service centers for intensive treatment and care; * removal of offenders, such as drug users, sexual deviants, and the mentally ill, to rehabilitation centers, or placing them under community programs for substance-abusing arrestees, probationers and parolees. Moreover, to decongest the system, Brazilian courts are starting to emphasize diverting criminal cases to special lower instance tribunals (Tribunais Especiais de Pequenas Causas), where judges can handle cases in which the maximum penalty does not exceed 2 years of imprisonment. Thus, people who would normally wait years to come before a judge, say, for fighting in bars, may come to court in a matter of days. 5. Case Dismissals Cases may be dismissed (extinção de punibilidade) if the victim takes more than 6 months to report the crime, if the description of the event does not constitute a crime, or if the offense is no longer punishable (decadência). Dismissals can also occur after the victim has renounced or granted pardon, given remission of legal consequences of crime, or the accused has died. While there is no explicit plea or sentencing bargaining in Brazilian courts, there is a functional equivalent. Brazilian courts use it to manage their caseload without giving every defendant a full blown investigation and adjudication of his case. It is like pretrial diversion except that charges are not dropped (as occurs in pretrial diversion programs in the United States), and like probation except that there are no probation officers involved: * Judges may also discharge a defendant and hold the execution of his/her penalty in abeyance upon good behavior (suspensão condicional da pena). This option is only granted if the defendant admits to the charges and if the penalty does not exceed 2 years imprisonment. The penalty can be suspended for up to 4 years (see Probation). 6. Trials The trial process begins when the judge accepts a complaint and fixes a date for questioning the defendant and ordering her/his notification by a prosecutor. Trial procedure includes the following steps: * Immediately after questioning, or within 3 days, the defendant may submit written allegation and enlist her/his witnesses. * There is direct examination of witnesses, starting by the state's witnesses. * Prosecutor or plaintiff may request any sort of inquest they consider necessary. * Both parties may present evidence at any phase of the criminal process. * If, in view of the evidence presented, the judge is convinced that the defendant is guilty as charged (of a not excusable crime against life, including inducing/helping another person to commit suicide or abortion), defense counsel or prosecutor may request the second phase of the case to be handled by a Jury Court (Tribunal do Júri), composed of a judge and 21 jurors, chosen from a yearly revised list of eligible names (300 to 500 in larger jurisdictions). * On the prescribed date for the trial, the state's witnesses are taken away to places where they cannot hear the debates, and seven people selected from the 21 prospective jurors present, so that a jury or Conselho de Sentença can be formed. * Once the jury is formed, jurors cannot communicate to anyone or express their opinions on the case. Jurors receive copies of relevant documents, hear state's witnesses, judge, defense counsel, plaintiff, prosecutor, and may, if they so wish, question defense's witnesses. * A verdict is reached after jury deliberation by secret vote of the majority of jurors. 7. Sentence and Penalties Sentence A sentence is a definite decision, that includes a synopsis of arguments presented to the court, as well as the issues of fact and law and items of legislation applied to the case. The court must always judge secundum petitum, that is, according to the complaint, although magistrates are allowed to give a legal definition not contained in the indictment. The defendant is considered not guilty if the court is convinced of the immateriality of the fact or lack of proof thereof, or if the fact is not a legal offense, or if there is not sufficient evidence that the defendant cooperated for the perpetration of the crime, or if there are circumstances excluding the crime or discharging the defendant. In pronouncing a sentence the court will mention the aggravating and/or mitigating circumstances (e.g., premeditation, disguise), state the penalty, reduce or increase it, and indicate the penological measures fitting the case (incapacitation, deterrence, or rehabilitation). Penalties The maximum period of incarceration is 30 years. The penalties vary considerably, pending on the seriousness and circumstances of the offense, personality and behavior of the offender. For example, a man found guilty of indecent assault had to face 6 years in prison plus 1 because he was not a first-time offender, plus 3 years and 6 months because the victim, a girl, was a minor plus another year, and 2 months because the offender was married. Other penalties are fines (petty theft) or deportation (if the defendant is a foreigner, particularly when involved in drug trafficking, torture, and crime against humanity). Most offenses are nonetheless punishable with sentences in prison: * intentional homicide (12 to 30 years); * major assault (1 to 12 years); * rape (6 to 10 years); * kidnaping (8 to 30 years); * theft (1 to 4 years); * violent robbery (4 to 30 years); * embezzlement (1 to 6 years), arson (3 to 6 years); * and corruption (2 to 12 years). Sentencing There have been a number of studies on sentencing (trial results, kind of sentence, and length of the penalty imposed. One of those studies, carried out with a sample of 297 cases of homicide in São Paulo (1984-1988), has shown more guilty verdicts when the defendant is in custody and depends on legal aid, assigned counsel, or public defender ((Adorno, 1999) tables 13 and 14). Death Penalty Brazil is abolitionist for ordinary crimes. The death penalty is permitted only in case of war declared by Congress and as a response to aggression by a foreign nation. 8. Appeals The sentence is not the final stage of a criminal process. It is just the expectation of a final decision, since the prosecution or defense may not agree and challenge it in a superior court, by means of a complaint of blatant injustice, denial of constitutional rights, grossly mistaken interpretation, or plain procedural errors. In these cases a higher court (Tribunal de Apelação) is called upon to correct or reverse the sentence. Appeals, thus, only apply to decisions of lower courts. They are not automatic and must follow a sequence of procedural steps, starting with this condition: within a specific period of time (5 days) after conviction, the petitioner must file with the appellate court a notice of appeals. 9. Probation In the Brazilian penal system of justice, probation is not a system, a component in the administration of justice embodied by an agency, or organization in charge of running the process -- including the preparation of reports for the courts, or supervision of probationers by probation officers. Probation in Brazil is suspensão condicional da pena, i.e., suspension of the procedure based on the testing of the conduct of the accused, a benefit subjected to the defendant admitting the charges. The penalty must not exceed 2 years of imprisonment and it can be suspended for 2 to 4 years maximum, provided the convict is not guilty of serious crime and complies with the following conditions: * avoids injurious or vicious habits; * refrains from frequenting unlawful or dishonorable places or consorting with disreputable characters; * works faithfully at suitable employment, or conscientiously pursues a course of study or vocational training; * undergoes available medical or psychiatric treatment; * support his dependents and meets other family responsibilities; * restitutes or makes reparation for the loss or damage caused, in an amount the defendant can afford to pay; * satisfies the conditions related to her/his rehabilitation, or posts a bond or other security for the performance of any or all the conditions imposed; * reports to a delegado de polícia as directed by the court, answers all of her/his inquiries, and promptly informs her/him of any change in address or employment; * remains within the jurisdiction of the court unless granted permission to leave. 10. Parole Parole (livramento condicional) is release from a penal or reformatory institution for those condemned to 2 or more years of imprisonment, who have served at least one-third of their maximum sentence or made restitution for the loss or damage caused. Until a final discharge is granted, parolees must sustain good behavior and remain under the supervision of an institution or agency approved by the court. As with probation, the power to grant parole held by the courts. Section V. POLICE Brazilian police forces are organized at federal, state, and municipal levels. 1. Federal Police (Departamento de Polícia Federal, DPF) The Department of Federal Police (Departamento de Polícia Federal, DPF) are a permanent agency, organized and maintained by the Union (tables 15 and 16). They are professionally structured and directly subordinate to the Secretary (Chief) of Federal Police, a chief executive officer to whom are also attached the Federal Highway Police (Polícia Rodoviária Federal), and the Federal Railroad Police (Polícia Ferroviária Federal). The responsibilities of the Secretary of Federal Police are: * coordinating the agencies belonging to the law enforcement system; * proposing measures to increase service efficiency; * regulating and overseeing private surveillance services; * supervising the Department of Federal Police; * designing projects and training programs; * establishing the technical norms of the Federal Highway Police and Federal Railroad Police. DPF headquarters are located in Brasília and the agency has offices in major cities and state capitals. Its members are chosen from graduates of the National Police Academy. DPF are the judicial police of the Union, whose responsibilities are: * investigating criminal offenses against public social and political order, and against Union property, services or interests, as well as interstate/international (operationally defined as crossing state/national borders offenses) requiring uniform legal repression; * enforcing laws against and preventing trafficking of controlled drugs, contraband, and diversion; * controlling private surveillance companies (table 17); * surveying chemicals used in the production of controlled drugs, especially cocaine and similar substances; * law enforcement in national seas, checkpoints, and borders; * policing environmental crimes; * policing checkpoints, seaports, airports, and borders. The Federal Highway Police and Federal Railroad Police are both permanent agencies, organized and maintained by the Union, professionally structured, who are responsible for patrolling federal highways and railroads. Their respective duties include: * patrolling to maintain order, protect citizens and Union property; * traffic control and law enforcement; * prevention of accidents, rescue operations, reporting events, conducting inquiries, etc. Federal Police deal with white-collar crime (656 inquiries in progress in 1999), currency evasion, and money laundering ($9.42 billion USD recovered up to the present). They are also responsible for the protection of victims and witnesses (280 persons, as of year 2001) in the struggle against organized crime. However, their most visible and increasingly large area of activity is the "war on drugs" (table 18). 2. State Police Forces State patrol police (Polícia Militar) and fire brigades (Corpos de Bombeiros Militares) are police forces based on hierarchy and discipline, responsible for law enforcement and civil defense. Both are reserve forces of the Army, but administratively subordinate to state secretaries of law enforcement (chiefs of police). Patrol policemen are uniformed, in charge of patrolling, traffic control, etc. Military fire brigades duties include the prevention of casualties, rescue operations, etc. Written tests and interviews required for entering the state patrol police academy occur every year and the candidates must satisfy certain physical conditions and hold a secondary school certificate (table 19). The patrol units of the Polícia Militar conduct preliminary investigations of criminal acts, but most sustained investigations are assigned to a specialized force, whose responsibilities include: * identifying, locating, and apprehending criminal offenders; * collecting and preserving physical evidence; * locating and interviewing witnesses; * recovering and returning stolen property; * ordering criminal investigations, screening cases subsequent to arrest in order to determine which should be prosecuted or dropped, notifying defendants of the charges, and setting bail -- these are the specific duties of a chief executive judicial police district officer (delegado de polícia), who is a full-time public employee. State judicial police (Polícia Civil) are professionally structured and responsible for all the activities connected to the work of detectives in the investigation of crimes, and for controlling citizens' identification cards, fire arms, and dangerous products (including drugs). They are supervised by their state department of law enforcement (Secretaria da Segurança Pública, SSP). Tests for joining the state judicial police occur periodically, depending on availability of positions, and official request. Brazilian police chiefs (delegados de polícia) must be bachelors of law, pass a three-phase test and, if approved, undergo a formative course in the judicial police academy. Coroners, forensic pathologists, and other professionals whose primary functions are to investigate the cause of crimes that occurred in the absence of witnesses, under suspicious circumstances, or where there has been evidence of violence, are also members of the state judicial police. Their role in the investigation of crimes, traffic accidents, etc., is nonpartisan and governed by procedures divorced from the control and influence of the delegados de polícia. Specialized units of the state judicial police also perform patrolling functions, such as responding to calls of "burglary in progress." Since July 2000, the Federal government has pushed forward a national plan of law enforcement to improve the performance of state-run police forces, mainly by making Polícia Civil and Polícia Militar a single, integrated law enforcement force. $200 million USD was to be spent in 2001 for equipment, to build a national police communications network, to train police officers, and in the construction of modern state penitentiaries. Each SSP provides statistics on crime and police activity in their jurisdictions. Patrol police and judicial police data for São Paulo city and state from 2000 to first quarter 2001 show the number of crime reports by category and type, investigations, civilian and police involvement, and arrests and gun seizures (tables 20 to 25). 3. Municipal Police Policing in Brazil is centralized. Hence, most law enforcement and peacekeeping in rural, urban, and unincorporated areas is provided by federal and state authorities. To curtail the power of municipalities, traditionally the forces of police have been always under the authority of provincial or state governments, except for a very short period (1832-1841). However, since 1985, to protect public facilities and city government property, more than 60 metropolitan police forces attached to the mayors' offices have been set up. Often run by former Army officers, the Guardas Civis Metropolitanas, are increasingly performing the patrolling functions that by law belong to the state military police. At present the federal government is encouraging local authorities to provide their own police protection, thus limiting the sovereignty and jurisdiction of state police forces. 4. Accountability Complaints against unlawful or improper police behavior traditionally have been handled administratively, by internal departments ((corregedorias) table 26). However, external control exerted by prosecutors, assisted by (state and local) government-nominated ombudsmen, is increasing. 5. Legal Authority According to the Federal Constitution (article 144): * Federal police -- the judiciary police of the Union (ordering investigations, screening cases subsequent to arrest in order to decide which too prosecute or drop, notifying defendants of the charges, and setting bail). Deals with: (1) social and public order crimes; (2) offenses against Union property, interests or public corporations; (3) crime and justice issues operationally defined as crossing interstate borders, such as drug trafficking, smuggling, money-laundering, and finance crimes (also dealt with by central, state,and municipal taxation control agencies); (4) policing seaports, airports, and national borders. * Federal Highway Police -- patrolling federal highways; * Federal Railway Police -- patrolling federal railways; * State judicial police (Polícia Civil); * State patrol police (Polícia Militar) -- public order offenses; * manning and running firemen services; * assisting and supervising civil defense; * Municipal police (Guarda Civil Metropolitana) -- protecting city facilities and local government property. 6. Unions Police unions are not permitted, but law enforcers' associations have great influence, particularly over state authorities. 7. Special Policies Community policing, restrictive rules for the use of police force and of firearms, drug prevention programs in schools (such as DARE), etc., are major ingredients in several state police departments. They are used to give a "human face" to law enforcement rather than as a means of performance improvement. Section VI. PROSECUTORS The role and prestige of prosecutors (promotores de justiça) as control agents has increased enormously since the promulgation of the federal constitution in 1988. They are salaried, full-time federal or state government employees, organized in a permanent institution professionally structured, whose essential function is to defend the legal order, the democratic regime, as well as social and individual interests. In Brazil, compared to other systems of criminal justice, formally at least, prosecutors' functions are reduced. This is because the screening of cases immediately after arrest and decisions on which cases should be prosecuted, fixing bail, and notifying defendants remain the legal prerogatives of the delegados de polícia. At the federal level, the prosecutors' institution (Ministério Público) is composed of the office of the Prosecutor General, the Superior College of Prosecutors, the Higher Council of Prosecutors, and by a control agency (Corregedoria-Geral do Ministério Público). There are prosecutors' offices in each of the 27 states and in the Federal District, manned by prosecutors working on preliminary courts, trial and supervisory tribunals. Members of the Ministério Público hold a special legal, constitutional status that protects them from being dismissed (after 2 years in office), compulsorily transferred (except in the public interest), and having their salaries reduced. According to the Federal Constitution, the institutional functions of the Ministério Público are: * presenting private complaints and promoting public inquires to protect public and social patrimony, the environment and other collective interests; * ensuring effective respect for public institutions and services; * protecting the legal rights and interests of indigenous groups, communities and institutions; * exerting external control on the activities of the police; * requesting police investigations, police intervention, inspections, expertise, and official documents; * sending notifications on administrative procedures under its jurisdiction and requesting official inquires; * suggesting the creation of norms, legislative changes, and measures to prevent and control crime (notifications and suggestions addressed to higher authorities, such as state governors or members of Congress, are forwarded by the office of the Prosecutor General); * promoting public audiences on any kind of inadequate governmental conduct or action by a public service corporation, producing annual or special reports with recommendations, and requesting formal response and written answers from the authorities. Section VII. DEFENSE BAR a) Attorneys Law professions enjoy substantial prestige in the Brazilian society, although public esteem was not entirely earned in the courtroom. One reason is the credit conferred by historiography on the role of lawyers -- more as debaters rather than activists -- in the abolition of slavery (1888), the establishment of the Republic (1889), and the opposition to the military regime (1964-1985). Another is the social and political influence of the Brazilian Bar Association (Ordem Brasileira dos Advogados), an independent organization with almost a half-million members (as of year 2000). When compared with other professionals, Brazilian lawyers tend to be older (44 years old, on average), skilled (26% are postgraduate specialists,) and motivated (78% are "satisfied" and "very satisfied" with their choice of career). 2. Defendants Defendants are warned, before questioning, that they are not obliged to answer the questions put to them, although silence may be interpreted in opposition to their own defense. Their silence is not a confession, but may constitute a formative element for the court's decision. Defendants must state their name, place and date of birth, parents' names, local of residence, professional or occupational status, and if they can read and write. The defendant is informed of the charges brought against them and interrogated on the following: * their whereabouts at the time of the offense and if he/she knew it has been committed; * the proof the court has against him/her; * the victim and the witnesses that have already appeared in court, or those who will in the future, if the defendant knows the persons and if he/she has anything to say against them; * the instrument used to perpetrate the crime or any object apprehended that might related to that instrument; * the charge being true or false; * a particular motive, or if the charge is false, if he/she are related to the offense and knows the person or persons to whom liability might be imputed, their names, and if the defendant knew those people before or after the offense was committed; * facts and details which could elucidate the antecedents and circumstances of the offense; * the defendant's own antecedents, notably if he/she has been detained or tried before, and, if affirmative, what was the sentence, the penalty and if the defendant has complied with it. 3. Public Defenders and Private Defense Attorneys Defendants cannot be tried or sentenced without legal representation; very infrequently (that is, unless they are trained lawyers) defendants are allowed to represent themselves, provided the magistrate believes their defense will be adequate. If the defendant cannot afford an attorney, the court will appoint a public defender, a full-time government employee earning a fixed salary who specializes in representing criminal suspects in need (not necessarily indigent). Public defenders are members of Defensoria Pública, a professionally structured agency, whose functions in criminal matters are to sponsor private defense and guarantee the individual rights of people in detention. Defendants may also be represented by a private defense attorney, whose functions include: * representing the accused immediately after arrest, providing advice during interrogation and ensuring that her/his constitutional safeguards are not violated; * reviewing police reports and further investigating the details of the offense; * interviewing police, the accused and the witnesses, seeking out additional evidence and witnesses on behalf of the defendant; * preparing, filing, and arguing diverse pretrial motions; * preparing the case for trial; * taking part in jury selection; * representing the defendant at trial; * determining and pursuing the appropriate basis for appeal; * presenting written arguments at appeal. Section VIII. JUDICIARY Brazilian judges are full-time public servants, who earn a fixed salary and benefits. They are members of an institution whose hallmark is uniformity, differing, thus, from the judiciary mosaic in America, where no two state court systems are identical, and court names tend to vary regardless of functions. In Brazil, courts of restricted jurisdiction, intermediate appellate courts, and trial courts are common to federal and state judiciary structures. Court jurisdiction (that is, the limit of a court sentence) varies by geography, subject matter, and hierarchy. Appellate courts ensure that participants in lower court hearings have access to a higher court's review of the decision and proceedings, provided petitioners can demonstrate their case is worthy of judicial reexamination. They also stand as instances of control (corregedorias) of judiciary and public administration. The federal judiciary is less than 1% ($840 million USD) of the total annual estimated revenue and expenditure of the Union (2001), disbursed almost entirely in the payment of salaries and pensions. 1. Court Jurisdiction A judgement or decision of a court, normally recorded as jurisprudência, is used as an authority for reaching the same result in subsequent cases. Thus, decisions of a higher court, such as the Higher Court of Justice, are bound upon all regional circuits courts and are normally followed by the Federal Supreme Tribunal. Decisions of inferior courts do not create any binding precedent. The following are the various Brazilian courts: * Supremo Tribunal Federal (Federal Supreme Tribunal)-- common-law suits involving the president of Republic, government ministers, Prosecutor General, high court judges, ambassadors and diplomatic ministers; * Tribunal Superior do Trabalho (Higher Court of Labor); * Tribunal Superior Eleitoral (Higher Electoral Court); * Superior Tribunal Militar (Higher Military Court); * Superior Tribunal de Justiça (Higher Court of Justice); * Tribunais Regionais do Trabalho (Regional Circuits Courts of Labor and Federal District Circuit Court of Labor); * Tribunais Regionais Eleitorais (Regional Circuits Electoral Courts and Federal District Circuit Electoral Court); * Tribunais Militares (Military Circuits Courts); * Tribunais Regionais Federais (Regional Federal Circuits Courts and Federal District Circuit Court); * Tribunais de Justiça (Regional Circuits Courts); * Tribunais de Alçada (Lower Regional Circuits Courts) -- non-homicide crimes against property, security measures, habeas corpus, appeals, property crimes, non-detention crimes (except drugs) and criminal cases of bankruptcy; * Juntas de Conciliação e Julgamento (Regional Labor Conciliation and Judgement Councils) -- composed of judges and representatives of labor and management; * Juízes e Juntas Eleitorais (Regional Electoral Judges and Councils) -- composed of judges and representatives of political parties; * Varas da Infância e da Adolescência (Regional Child and Juvenile Courts) -- offenses where children and juveniles are involved; * Juízes Militares (Regional Circuits' Military Judges); * Juízes Federais (Federal Circuits' Judges); * Juízes de Direito (Regional Circuits' Judges); * Tribunais do Júri (Regional Circuits' Jury Courts) -- crimes against life (secret vote, decisions by simple majority (jurors' decisions may be challenged by higher tribunals)). 2. Legal Process: Case Attrition Case attrition refers to the number of criminal cases that drop out of the criminal justice process from its initiation to its final stage. For every 100 cases (of a certain offense) that are reported to the authorities, only some result in investigations, and only some of those result in arrests, and only some of those result in prosecutions that result in convictions. Brazilian judges share the popular feeling that the rate of case attrition in the country is much higher than it should be. The general public blames the attrition on the "excessive formalized procedures" or choosing of particular actors. In contrast the judges prefer to identify certain requirements for getting rid of the "structural" obstacles in the legal process (Sadek, 1994) which are as follows: * Decongest the system, through: a) procedure simplification -- more specifically by diverting cases where the maximum penalty does not exceed 2 years of imprisonment to special lower instance criminal courts (see above section IV.4 ); b) justice of the peace courts -- in which the "magistrate" is not required to be an attorney, is appointed, or elected usually through strong community ties -- to hear ordinance violations, issue search and arrest warrants, fix bail, arraign defendants, and process civil cases involving limited cash amounts; c) enhance first instance courts' power of decision -- to limit the possibility of appeal (the vast majority of appeals are made by government agencies, as a means of delaying payments). * Improve system management, through: a) use adequate methods and criteria for staff recruitment and training; b) modernize procedures and legal routines. * Ameliorate professional qualifications and performances, through: a) improved legal education at college level; b) reduce work load normally assigned to judges and transfer it to qualified judicial services. Section 9. PROBATION 1. Conditional Discharge Except in cases of minors or mental incapability, Brazilian courts do not place offenders under probational supervision. What magistrates normally do is to grant conditional discharge (livramento condicional), releasing the defendant from prison without punishment, provided the convict: * has fulfilled at least one-third of her/his sentence (two-thirds, if the defendant was sentenced for heinous crime -- torture, drug trafficking, or terrorism); * did not commit a serious offense before; * has good antecedents (prior record, family background, etc.); * had good behavior and worked properly during the time he/she were complying with the sentence, showing that he/she could earn a decent living; * has made restitution or reparation for the loss or damage inflicted. After conditional release is granted, the defendant must: * obtain a legitimate occupation, work faithfully within a reasonable period of time, provided he/she is fit to work; * periodically inform the judge of her/his occupation; * not leave the district without permission; * not change address without permission from the court or commissioned authority, usually a delegado de polícia (in certain cases); * refrain from frequenting certain places or associating with disreputable persons (in certain cases); * obey curfew orders (in certain cases). Section X. PRISONS, JAILS, HOUSES OF CORRECTION 1. Administration and Present Conditions By law, every correctional institution must have a director, two wardens, a psychiatrist, a psychologist, and a social worker. The function of this Comissão Técnica de Classificação is to devise and supervise personal internment programs according to the inmate's antecedents and personality. Those sentenced to a strict regime of detention (sentença privativa de liberdade), for example, should be lodged in individual cells of at least six meters squared, in state penitentiaries located at reasonable distance from urban centers. However, the situation in practice, particularly in larger correctional facilities, is rather different. According to official figures, from 1995 to 1999 the number of inmates increased by 30.5 percent (current capacity: 158,561/actually confined: 223,220), so that in year 2000 prison population surpassed 200,000. The state prison system's limited capacity has forced the authorities to maintain prisoners in jails and police lockups originally designed to accommodate at most 26,152 short-term detainees ((actual population: 61,852)tables 27 to 31). 2. Government Proposed Measures The Ministry of Justice recently presented to Congress a National Plan of Law Enforcement that includes measures for improvements in prison administration: * integration of states police forces; * less "bureaucratic" criminal procedures; * strengthening the role of prosecutors in the investigative and adjucatory phases (thereby reducing the importance of delegados de polícia); * terminating open and semi-open regimes of detention; * stricter rules for prison maximum capacity, including a new code of discipline in state penitentiaries, taking away from judges authority over the transfer of inmates, etc. Section 11. JUVENILE JUSTICE 1. Jurisdiction and Organization The Brazilian legislation has incorporated the United Nations convention on children's rights, and international minimum rules for the administration of youth justice and protection of young offenders in custody. One of the major premises of the Youth and Children Statute (ECA, 1990) is that youth in conflict with the law deserve special attention aimed at returning them to society. Between the ages of 12 and 17, youngsters who have committed any offense under the adult penal code must not receive prison sentences but rather one of six diversion programs. The six "socio-educational" correctional orders are: warning, reparation of damage, community service, probation, day release, and detention. Detention, in particular, must be enforced in the same locality where the offender's family lives, or as close as possible. The average age for a child in detention is 17. 2. Adult, Child, and Juvenile Crime Survey Findings Indictment data for homicide, attempted homicide, theft, attempted theft, robbery, and attempted robbery in the state of São Paulo from 1998 through April 2000 (tables 32 to 37). Section 12. INDIGENOUS CRIMINAL JUSTICE SYSTEMS The federal constitution not only upholds indigenous groups' original rights of ownership of over the land occupied by their ancestors, but also recognizes their social organization, customs, languages, beliefs, and traditions. The same protective attitude is reflected in the authority given to the Ministério Público (prosecutors offices) to intervene on behalf of indigenous groups, communities, and organizations, professedly in defense of their best interests and privileges. If a member of an indigenous group is prosecuted and sentenced to prison, the penalty is attenuated in view of the offender's degree of integration to civilized life. The regime of confinement is always of "semi-detention," close to the detainee's homeland, and administered by the national agency in charge of indigenous populations (FUNAI), which also exercises the power of police in those areas. Section 13. TRANSNATIONAL/INTERNATIONAL CRIME AND JUSTICE 1. Transnational Crime and Justice Contacts Criminologists often consider the threat of crime displacement a secondary issue, virtually indistinguishable, if spread broadly enough, from normal changes in crime patterns. It seldom receives the same methodological concern or focus that is accorded to, for example, the intended effects of crime prevention, the "diffusion of benefits" of interventions beyond the places directly targeted (Eck and Weisburd, 1995:21-2). From a global perspective, however, the unintended effects of prevention -- such as the cleansing process performed in Italy, between 1882 and 1992, through public outrage, law enforcement and promulgation of 114 laws against the Mafia -- may suggest the opposite. That is, crime displacement -- and the diffusion of criminal patterns of organization -- are becoming increasingly crucial. In view of the colossal repression against Colombian drug cartels, Brazilian traffickers evolved from mere go-betweens to the status of full-grown racketeers, members of an upper-middle class of mafiosi, with diverse criminal interests. Displacement here is a condition as basic as the results of the relations between organized crime and politics. As in Italy, and subsequently elsewhere, crime in Brazil has become institutionalized and illegal organizations now act according to an ambivalent relation with the state and other traditional institutions. ...[The mafia] is simultaneously outside and against the state. It does not recognize the state's monopoly on violence. It resorts to murder, having the death penalty in its code. And, it is inside and with the state (because a series of activities are connected with the use of public finances, e.g., contracts for public works, and imply their active participation in public life -- elections and control of the functioning of institutions Santino, 1997:159). One of the aspects of this complicated relationship is the impact of transnational crime on Brazilian crime rates. According to police sources, during the 1990s at least 60% of all cases of intentional homicide in São Paulo were connected to violent incidents involving gangs struggling for the control of local drug trade. On the other hand, the nature and structure of crime itself is undergoing profound changes. BCEs (Brazilian criminal enterprises) are diversifying their activities -- in drug trafficking, extortion, counterfeiting, prostitution, fraud, and truck hijacking, and techniques. They are doing this in tandem with powerful political oddballs (including mayors, city counselors, and members of Congress). BCEs have become active in public life, funding political campaigns, and realizing profits inside government. Organized crime in Brazil is a social coalition, broad, though impervious to change, and brutally dominated by a borghesia mafiosa (Santino, 1994) of businessmen, politicians, and public servants living in a chiaroscuro world. The political activities of the BCEs depend on the revenue generated through effective manipulation of public resources and public works. A successful criminal enterprise, however, rests on its capacity to dissimulate the origins of profits through capital laundering. To prevent that and the concealment of assets acquired through trafficking drugs or weapons, and corrupt public affairs, a new piece of legislation was promulgated in 1998. It is the result of close international collaboration between FIUs (financial intelligence units) organized all over the world, including COAF (Brazil), FinCEN (U.S.A.), MOT (Aruba), UNIF (Venezuela), CDE (Chile), CICAD (Costa Rica), and DGAIO/UIF (Mexico). Consequently, according to law number 9613, and eventually reversing the logic of the established criminal procedure, defendants now may have their property seized and will be: * sued and eventually condemned on the basis of "sufficient evidence," unless the legitimate origin of their income is established; * granted one-third to two-thirds reduction in their sentences, in case they help, any time close to arraignment, to identify the heads of criminal organizations; * prosecuted even when their whereabouts are ignored; * have no right to bail and pretrial release (Mendroni, 2001: 479-89). 2. Procedures Recent promotion of criminal procedures and their enforcement against transnational crime, have resulted in major legislative changes in Latin America, and U.S. approaches to drug control "written into local laws" (Nadelmann, 1997:126). In the subcontinent there are countries where old "inquisitorial, formalist and written" penal procedures seem to be losing ground to the adversarial system based on Common Law (Pérez, 1998). Actually, according to the president of the regional circuits court of Rio de Janeiro, in view of globalization not just one but both legal systems are losing their purity and rapidly becoming "hybrids." Brazilian judicial procedure is assimilating elements of British and American procedure, diversion, evidence, arbitration, precedent, etc., just as easily as it absorbed Italian, French, or German legal experiences in the past. The same is true in respect to investigative techniques sought by American drug enforcement. For example, the United States and Brazil have recently (2001) ratified an agreement of mutual legal assistance in criminal investigation, penal proceedings, and crime prevention, particularly in cases of money laundering and arms trafficking. The agreement included joint assistance in identifying, locating and questioning suspects, exchanging documents, transferring people in custody during inquiries and many other forms of collaboration not prohibited by the legislation of either country. This means that American and Brazilian magistrates can digest what the agreements involve, provided the principle of legality (due process of law) and the rule of compulsory prosecution are respected. Otherwise, both systems of criminal justice might be taking transnational crime control simply as a response to urgent situations. [An] important aspect of the battle against organized crime that was dealt with using the logic of emergency was the seizure [in Italy] of possessions of suspected mafia criminals. However, the possessions were usually seized in too much of a hurry. Therefore, much of the seized real estate, automobiles etc., had to be returned to the owner. From 1992 to 1993, 88 percent of the 1,334 billion lire seized had to be returned to the owners. The 12 percent that were permanently confiscated amounted to about 100 million dollars (Santino, 1997:156). 3. Other: Foreigners in Brazilian Prisons Statistics indicate there are few aliens in Brazilian prisons (table 38). Most foreign prisoners are from Latin America. Section 14. RESEARCH AND INFORMATION RESOURCES 1. Research Government Agencies * Ministry of Justice, . * Departamento de Polícia Federal, , . * Military Police of Rio de Janeiro, . * São Paulo State Secretary of Law Enforcement, . * Instituto Brasileiro de Geografia e Estatística, . Non-private * ILANUD, Dr. Túlio Kahn, . * ISER, Dr. Ruben César Fernandes, . Private * IBCCRIM, Instituto Brasileiro de Ciências Criminais, . * Instituto Brasileiro Giovanni Falcone, Judge Walter F. Maierovitch, . * IDES -- Instituto Direito e Sociedade, Profª Eliane B. Junqueira, . * Centro Talcott de Direito e Justiça, Prof. Pedro Scuro Nt., . * Federal University of Minas Gerais, Centro de Estudos de Criminalidade e Segurança Pública, Prof. Claudio Beato F., . * State University of Rio de Janeiro, Programa de Estudos sobre a Violência, Prof. Emilio Dellasoppa, . * Federal University of Rio Grande do Sul, Departamento de Ciências Criminais, Prof. Luiz Carlos Rodrigues Duarte, . * Federal University of Santa Catarina, Prof. Edmundo L. de Arruda Jr., . * University of São Paulo, Núcleo de Estudos da Violência, . 2. Search * . * -- largest legal publishing house in the country. * . * . * -- Brazilian Senate. 3. Journals * Brazilian Review of Social Sciences, . * Consultor Jurídico, . * Revista Brasileira de Ciências Criminais, . * Revista da Escola Paulista da Magistratura, . * Plúrima, journal of the law faculty of the Universidade Federal Fluminense, Prof. Roberto Fragale F., . 4. Professional Associations * Campinas Catholic University (forensic science), . * Ordem dos Advogados do Brasil -- OAB (Brazilian Bar Association), , Profª Bistra S. Apostolova, . * GAECO (prosecutors' group specialized in organized crime), Dr. Marcelo B. Mendroni, . * Associação Juízes para a Democracia, Judge Celso L. Limongi, . * Associação Brasileira de Magistrados e Promotores de Justiça da Infância e Adolescência, Judge Leoberto N. Brancher, . Section 15. PUBLIC OPINION AND SELF-HELP AND VIGILANTISM Brazilian opinion polls show very little public confidence in the penal system compared to institutions such as the media or the church. Crime or "poor law enforcement" is the main source of concern in major Brazilian cities. Since 1995 in São Paulo investment in law enforcement grew 30%. The number of policemen and their salaries grew 10%. Arrests more than doubled (from 1998 to 1999). However, in the year 2000 compared to 1995, homicide cases increased 30.5% and the total number of thefts and robberies grew more than 50%. Based on more recent figures, police claim that investment in the police was not in vain. Compared to 1999 the number of violent robberies in the year 2000 fell 22.7%; major assault 4.4%; rape 3.3%; robbery 2% and intentional homicide 1.4%. In the same period, more efficient policing resulted in more arrests (10.5% more, nearly 10,000 per month); fewer convicts were involved in attempts of escape (-29.3%) and fewer prison riots (147 in 1998, 76 in 1999, 75 in 2000). During the 1980s criminal cases in regional circuit courts (São Paulo) took an average 620 days. It was less than in Italy, slightly more compared to France, but considerably more as far as Germany was concerned (Garcia, 1996: 153-76; Castellano et al., 1970). That performance during the 1990s was an average duration of 756 days (median: 530 days). What gives the impression that the justice system is essentially ineffective are not the long delays, but the high rates of case attrition from the process that suggest many offenders are virtually exempt from punishment. In truth, high rates of attrition are common in all major criminal justice systems, not only Brazil's. In the United States, for instance, the same condition is pictured through a "funnel effect." A large number of crimes are committed filtering down to a relatively small number of offenders going to prison. The same filtering process occurs in Brazil, as shown by a sample of 290 murder cases of youth and children (São Paulo, 1996). The police made no arrest in 48% of the cases and 63% of the remaining were discontinued for lack of evidence. From those actually arrested only 28% were indicted, 9% dismissed by the court, and only 1.7% found guilty as charged. Similarly, in 1998 the press interviewed a defense attorney with an amazing record of success defending murder suspects in one of the most violent areas of São Paulo. He claimed that only ten out of 130 of his clients were tried by jury (and just three ended up in jail). The reason, according to him, was the "inefficiency of the system of criminal justice," weak policing in particular: police were not able to gather enough evidence in 80% of the cases. 2. Self-help and Vigilantism Self-help or private "justice" is frequently associated with increasing "anger at legal institutions" and declining compliance with the law. These public sentiments push law enforcement agents to "join with citizens in a general cultural attack on judges and lawyers, fueling private justice (self-help) and even summary punishment by police (as in Brazilian death squads), or in a less extreme case, systematic beatings of known criminals)." Vigilantes and "death squads" are individuals or groups that protect neighborhoods where police are ostensibly inefficient or ill-equipped to deal with rampant crime and lawlessness. The summary justice they practice, however, has no impact on crime prevention. They just add to the increase in crime rates (NEPP, 1990). As already stated in this report, police claim that as much as 60% of the intentional homicide cases in São Paulo is related to the illegal drug trade. The drug traffickers's interests are never aggrieved by vigilantes -- "death squads" included. These self- help people fear retaliation by and never interfere with traffickers. In Brazil, self-help is sponsored only when the task is to eliminate petty lawbreakers. The overwhelming majority of the killing done by vigilantes is limited to neighborhoods, usually the restricted areas where the gunman lives (79%). It is focused on getting rid of the young (64%), not particularly wicked offenders who usually have no police record (Mingardi, 1997). Apart from those, there are few reasons for the low effectiveness of "people's justice" (Mingardi, 1997): 1. "People's justice" acts on a face-to-face basis. It has no memory. Its kind of punishment must occur immediately after the offense and closer to home. Law enforcement and formal justice, on the other hand, can arrest and prosecute someone for a crime even if it was committed in a distant past or remote place. 2. 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A crise do judiciário vista pelos juízes: relatório de pesquisa. São Paulo: IDESP, 1994. Transparência Brasil. Índice de percepçôes de corrupção, 2001. Journals Ajuris - Revista da Associação dos Juízes do Rio Grande do Sul Ciência Penal (São Paulo) Ciência Jurídica (Salvador, Bahia) Consultor Jurídico Diário da Justiça da União Jurisprudência Mineira Jurisprudência do Supremo Tribunal Federal Justitia (Ministério Público do Estado de São Paulo) Revista Brasileira de Ciências Criminais Revista Brasileira de Criminologia e Direito Penal Revista da Ordem dos Advogados Revista de Direito da Defensoria Pública (Rio de Janeiro) Revista dos Tribunais e Seleçôes Jurídicas Tribunal do Direito Legislation Código Penal. São Paulo: Saraiva, 2001 Código de Processo Penal. São Paulo: Saraiva, 2001 Legislação Informatizada Saraiva. São Paulo. Saraiva, 2000 ABOUT THE AUTHOR Pedro Scuro Neto is a research sociologist, Ph.D. (Leeds) and M.Soc.Sc (Prague). He is full professor of general and legal sociology at the Faculty of Law of Guarulhos (Brazil) and Director of Centro Talcott of Law and Justice (São Paulo). Email: . End of file 06/03/03 ih