In dialogue with Brazil, Committee on Enforced Disappearances asks about statistics on missing persons, and systems available to victims’ families
The Committee on Enforced Disappearances this afternoon concluded its consideration of the initial report of Brazil on measures taken to implement the International Convention for the Protection of all Persons from Enforced Disappearance, with Committee Experts asking about statistics on missing persons, systems available to victims’ families, and the criminalisation of enforced disappearances.
Committee experts asked the delegation to elaborate on cases of enforced disappearance, asking for figures and statistics, while acknowledging the limitations of available data due to enforced disappearance not being criminalised in Brazil. Experts also asked for details around Brazil’s amnesty law and how it related to the Convention. Citing information from non-governmental organizations alleging cases of enforced disappearance having occurred after Brazil’s 2010 ratification of the Convention, they also asked for details of how families of victims would manage administrative aspects following a disappearance. Regarding training around enforced disappearances, experts wanted to know which institution was in charge of conducting such training, how such training was conducted, and how the curriculum had been developed.
Mariana de Sousa Machado Neris, National Secretary for Global Protection of the Ministry of Women, Family and Human Rights and deputy head of the delegation, said the crime of enforced disappearance as described in the Convention would shortly enter the Brazilian legal system, noting that a bill to that effect, after other approvals, would become law through presidential sanction. Brazil’s National System for Identification and Location of Missing Persons, created about a decade ago, was the most advanced in Brazil in terms of consolidating data on disappearances. Turning to international issues, she noted that Brazil was a signatory to the Rome Statute of the International Criminal Court.
The delegation told the Committee that in Brazil, a “disappeared person” could be voluntary, meaning a person who just went missing or lost contact with their family. There were no enforced disappearances in Brazil, yet several institutions, including a National Committee for searching for missing persons had been operationalized, and as per the Brazilian legal system, the search for a missing person did not interfere with civil procedure.
The delegation of Brazil was comprised of representatives of the Ministry of Foreign Affairs; the Ministry of Women, Family and Human Rights; the Ministry of Justice and Public Security; and the Permanent Mission of Brazil to the United Nations Office at Geneva.
The Committee will issue the concluding observations and recommendations on the report of Brazil at the end of its twenty-first session, which concludes on 24 September. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee will next meet in public on Wednesday, 15 September at 3 p.m. to begin its dialogue with Panama.
The Committee has before it the initial report of Brazil (CED/C/BRA/1).
Presentation of the Report
TOVAR DA SILVA NUNES, Permanent Representative of Brazil to the United Nations Office and other International Organizations in Geneva and head of delegation, recognizing the important work of the Committee to bring justice, noted that the present review was Brazil’s first dialogue with a United Nations treaty body in almost six years. In 2019, Brazil had committed to submit all its pending reports to the treaty bodies. Brazil’s effort to present its pending reports stemmed not only from its duty to implement its international obligations in a timely manner, but also reflected the great importance Brazil attached to dialogues with treaty bodies as a means to better promote and protect human rights.
MARIANA DE SOUSA MACHADO NERIS, National Secretary for Global Protection of the Ministry of Women, Family and Human Rights and deputy head of the delegation, introducing the report, said the defense of human rights was one of the pillars of society and the State. Brazil’s institutional structure was geared toward the protection of human rights, including the fight against enforced disappearance. The crime of enforced disappearance as described in the Convention would shortly enter the Brazilian legal system, she said, noting that a bill to that effect, after other approvals, would become law through presidential sanction. Forced disappearance is was currently criminalized in Brazil in the form of kidnapping, homicide, concealment of a corpse, trafficking in persons, torture, and kidnapping of a prisoner (in the case of individuals deprived of their liberty). Any cooperation between individuals for the purposes of causing the disappearance of another was penalized as crimes of "criminal association" or "formation of a private militia".
Although Brazil still did not have integrated statistics at the federal level on enforced disappearances, the National Registry of Missing Persons was in the process of implementing such statistics, which would address all possible forms of disappearance, including enforced disappearances. Regarding Brazil’s National System for Identification and Location of Missing Persons (“SINALID”), she said that the system, created about a decade ago, was the most advanced in Brazil in terms of consolidating data on disappearances. More than 10 000 disappearances had already been solved. Furthermore, in a few weeks, the Ministry of Women, Family and Human Rights would launch an application to register disappearances named “SOS Desaparecidos”. In 2022, Brazil would launch a national alert to disseminate information about missing persons, in the style of the American "Amber Alert".
As for the effect of the COVID-19 pandemic on human rights, she said that in Brazil, access to justice and other rights by relatives of missing persons had not been restricted by the ongoing public health crisis. She noted that one of the main concerns of the Convention was the effective accountability of State agents in cases of enforced disappearance. Noting that Brazil had a criminal system where there was a clear separation between the accuser and the judge, she underscored that the Brazilian Public Prosecutor’s Office had full independence to investigate and prosecute. The judiciary was also fully independent, with each judge passing judgment in accordance with the law, “and his own conscience”.
Turning to international issues, she noted that Brazil was a signatory to the Rome Statute of the International Criminal Court. That court’s statute treated forced disappearance as a crime against humanity “when committed as part of a widespread or systematic attack against any civilian population”. The Brazilian legal system treated it the same way. Brazil allowed the extradition of people accused of carrying out forced disappearances, but would not extradite, repatriate or deport when there were reasons to believe that could endanger the life of personal integrity of the individual.
Questions by the Committee Experts
MILICA KOLAKOVIĆ-BOJOVIĆ, Committee Vice President, welcomed the fact that Brazil was among the first States to ratify the Convention. Regarding articles 31 and 32 of the Convention, on individual communications (complaints to the Committee from people alleging violations of their human rights) was there progress toward recognizing the competence of the Committee to receive and consider communications from or on behalf of individuals? How was data on enforced disappearances collected, what was the statute and guarantee of independence of the national bodies in charge of human rights? How were their powers divided, and what was the role of human right defenders in relation to the institutions?
MATAR DIOP, Committee member, noting that enforced disappearance was not criminalized in Brazil, asked whether the Brazilian delegation had statistics on other charges prosecuted, but treated as such? Could the Committee have information a bout the rare cases of disappearance acknowledged by the authorities? Which restrictions were imposed by Brazil’s amnesty law?
MILICA KOLAKOVIĆ-BOJOVIĆ, Committee Vice President, said the Committee had received comprehensive allegations from non-governmental organizations on enforced disappearances which had happened in the past, but also some information that there were enforced disappearances occurring at present, including by military and civilian police, as well as by armed and paramilitary groups formed by or acting with support of State agents.
Replies by the Delegation
In response to queries about Brazil’s ratification of the Convention, the delegation explained the procedure for ratifying a convention in Brazil, and the involvement of different authorities along the way. Brazil maintained a separation of powers, which meant that there were a number of institutions which worked together in that process.
Regarding consultations around Article 31 and 32, they would continue internally among the parties involved, the delegation said, adding that there was little sign Brazil would recognise the articles soon.
Brazil had no specific centralized mechanism on cases of enforced disappearance. However, a new system would be operational next year, which would include information on the involvement of military personnel.
Follow-up Questions by the Committee Experts
MILICA KOLAKOVIĆ-BOJOVIĆ, Committee Vice President, asked the delegation to provide the definition of “victim” in the Brazilian legislation, as well as to provide information on political guidelines and progress on searching for disappeared persons. She also asked for more information about services available to victims, especially psychological support. Which services were available to support members of the families of disappeared persons, in terms of identification processes? She also asked whether Brazil covered costs for identification, especially for DNA analysis. She also asked about the legal situation of disappeared persons and their families. What was the situation of families, did they need to choose between the continuation of the search for the disappeared person, and having access to their property?
Replies by the Delegation
The delegation said Brazil’s national policy on searching for missing persons had been established by law during the Bolsonaro administration and encompassed all sorts of disappearances, including enforced disappearances, even though they were unlikely to happen in Brazil. Some of the questions posed by the Committee experts were outside the scope of the Convention. Brazilian courts recognized that enforced disappearances were not covered by the amnesty law, thus that law fell outside the scope of the Convention. Brazil had ratified the Convention in 2016 and would answer questions on cases which had occurred after 2016.
With regard to death certificates for disappeared persons, the question had also been raised by a special commission which dealt with persons who disappeared during the military dictatorship, which the delegation said was not under the auspices of the Convention, expressing surprise that many questions asked by the Committee were outside the scope of the Convention.
Brazil had a national policy created in 2019 of searching for missing persons, an initiative by President Bolsonaro. Brazil’s National Register of missing persons was currently being implemented and therefore did not yet have the statistics on missing persons. The registry would include data from different ministries, including the prosecution service and the national system for locating and identifying missing persons.
In Brazil, a “disappeared person” could be voluntary, meaning a person who just went missing or lost contact with their family. There were no enforced disappearances in Brazil, which was why the delegation had no statistics on that. Brazil had criminalized trafficking in persons and other offenses but enforced disappearance had not yet been criminalized.
In 2021, a National Committee for searching for missing persons had been operationalized. It was a central body and advisory party with many different representatives of the federal government such as the executive branch, the prosecution service, the public defender’s office, the body responsible for identifying the missing persons, the police, civil society and representatives of victims’ family members. Through its National Committee, Brazil had established 16 working groups, including groups providing psychosocial and legal support to victims and family members, death certificates, training and human rights education specifically focusing on enforced disappearances. Brazil had a very large number of national and international initiatives in the area of disappearances and missing persons.
The delegation said that as per the Brazilian legal system, the search for a missing person did not interfere with civil procedure. The rights of family members to property were safeguarded. Regarding the question on death certificates, Brazil had a procedure for that, which was regulated in the civil code. If the body was not found, the death could be registered in a civil registry office, and the relatives would receive a death certificate.
In October 2018, Brazil had received the last report containing 1500 DNA profiles of missing persons and the following year had launched a program in which the Ministry of Justice contributed to the budget for equipment for creating genetic databases. In 2019, a national campaign was launched to collect DNA samples from missing persons, with 150 collection points across the country where any family member could provide their DNA for a match. Since the launch of the campaign, Brazil had seen several positive identification cases.
In response to the Committee’s question on Brazil’s prison system, the delegation said that among the 27 federal prisons in Brazil, only six imposed restrictions on visits, in the rest detainees had access to public defenders, the telephone, and their families. Disappeared people were vulnerable and could be found in prison, therefore, Brazil took civil identification for all detainees to identify missing people.
Regarding disappeared children, international and national adoption was a judicial process in Brazil. Brazil did not have any cases of disappearances of adopted children in the past 10 years; adoptive parents had to pass several criteria, and prospective adoptive parents could not have contact with the child until they passed the analysis. Brazil had one of Latin America’s best registries of adoption. Only courts had access to the registry, which made it very safe.
Follow-up questions by the Committee Experts
A Committee expert, citing complaints around unlawful adoption, asked for details around Brazil’s adoption registry.
Brazil had ratified the Convention in 2010, a Committee expert said, noting that it was therefore under its obligations since then. From the moment a person disappeared to the moment their disappearance was declared a crime, it was an ongoing case, and thus under the jurisdiction of the Committee since 2010.
Experts requested more information on the training around enforced disappearances, which the delegation had mentioned. What was the institution in charge of conducting such training? Which categories of State officials were obliged to conduct such training? How was such training conducted, how had the curriculum been developed, and how many participants did such training have?
Did Brazil have a compensation mechanism within its criminal procedure, or was there an obligation to initiate any other procedure, such as a civil procedure? To what extent was the compensation mechanism proportional to the damage suffered? Was there any mechanism to support victims’ families? Were there rules and procedures in Brazil’s legal system to annul adoption?
What was Brazil’s position on persons apprehended and detained when no arrest warrant was present, and without a decision by a court? The Brazilian delegation had mentioned that it enforced the Rome statute, could the delegation elaborate on that?
Following up on questions asked around the date of Brazil’s ratification of the Convention, a Committee member asked the Brazilian delegation to verify the date with its respective authorities, also asking how Article 6 on criminal responsibility had been transposed in Brazil?
Replies by the Delegation
The delegation said the date of Brazil’s ratification of the Convention was 2010 and not 2016, therefore, the Committee could inquire on issues which had occurred after 2010. Continuing, the delegation said that in all civilized countries, civil and criminal proceedings were separate, and there was compensation in civil court for damages. The delegation stressed that the dialogue should be carried out in good faith. The delegation had been treated as if the Brazilian government had been providing false information.
In response to questions about training, it would be compulsory for public officials at the federal and municipal level.
Brazil gave further details on training courses that the Ministry of Justice was currently delivering to public officials. It taught techniques for locating missing persons, and around 2000 people had undergone that training so far. There were also other courses that would be organised during the year. The Ministry of Justice had signed a memorandum of understanding with the International Committee of the Red Cross to deliver training for public security officials.
The delegation said the Brazilian government had no interest in stopping any ongoing investigation of disappeared people. A majority of Brazilian municipalities had reception centres where people could schedule a consultation with a team of lawyers and social workers. The centres were not exclusive to the matters of enforced disappearances, but could also be used for that purpose. The delegation expressed frustration with what they said was incorrect data presented to them by the Committee, which was based on reports submitted by the non-governmental organisations. Brazil’s justice system, and its judges, were “slaves to the laws”.
On its amnesty law, the Brazilian delegation expressed the opinion that there were some limitations in that legislation and there were no changes in the Federal Supreme Court of Brazil. Quite the opposite, they had to be followed by the local courts as well.
Follow-up Questions by the Committee Experts
MATAR DIOP, Committee member, asked for more information on the extradition procedure of people whose return to their country might endanger them. Was it possible to challenge the decisions of the Ministry before any other court? With regard to decisions of the Federal Court, would an appeal could have a suspensive effect, even if it would not challenge the Federal Court decision?
MILICA KOLAKOVIĆ-BOJOVIĆ, Committee Vice President, noted that all the reports used as sources of information were publicly available on the website. Brazil was a great and beautiful country, but when it came to human rights protection and implementation of the Convention, there were no big and small countries. The Committee applied a uniform and equal approach to all State parties. She asked for Brazil to let the Committee help the country in effectively implementing the Convention.
Follow-Up Replies by the Delegation
The delegation explained that Brazil had a specific law on extradition. There were two procedures, the first of which was an international procedure through a diplomatic request from a neighbouring state. Extradition could only happen if the person in question was facing a minimum prison sentence of two years, for a criminal, not an administrative offense. The extradited person would have the right to a lawyer, and a decision would be taken on whether they were fit for extradition. There was no extradition based on political grounds. The second procedure for extradition was through the President.
The delegation said they believed the reports were of poor quality, and that it was therefore difficult to comment on events and facts that in Brazil’s opinion never took place. Brazil believed that the sources that the Committee used were not very credible.
MARIANA DE SOUSA MACHADO NERIS, National Secretary for Global Protection of the Ministry of Women, Family and Human Rights and deputy head of the delegation, said that Brazil was devoted to providing the Committee with information with the greatest details. She noted that a large number of the missing people in Brazil had links to other crimes, but nevertheless, Brazil was committed to finding all missing persons. Brazil was not trying to hide its past or its present, but had to question the data presented to them by the Committee. The Brazilian government was committed to the truth, and to investigating and publishing the truth. Brazil was committed to improving its monitoring practices as a whole.
The Committee thanked the delegation for its work and the constructive exchange, despite the connectivity problems due to the ongoing COVID-19 pandemic. Brazil would have an opportunity to submit factual corrections to the Committee’s Concluding Observations. Ultimately, all stakeholders had the same goal, which was to implement the Convention in the States parties. The Committee worked together with all its State parties, as well as with victims of enforced disappearance, and civil society actors.