(São Paulo) – Brazil´s army is not making its personnel available to talk with state prosecutors in the investigation into the killing of eight people during a joint raid with civil police in Rio de Janeiro on November 11, 2017, Human Rights Watch said today.

On November 28, state prosecutors attended a meeting about the case with General Walter Braga Netto, chief of the Eastern Military Command. Immediately afterward, the prosecutors requested a copy of transcripts of statements made by members of the army who participated in that operation, and asked to interview the army participants, a justice official present at the meeting told Human Rights Watch. Braga Netto´s staff agreed, but almost three months later have yet to provide either.

“The stonewalling by General Braga Netto shows a lack of any serious commitment to justice for the victims in this case and a flagrant disrespect for civilian authorities,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “This does not bode well for regular citizens during his tenure as head of public security in Rio de Janeiro.”

A military vehicle is pictured during an operation after violent clashes between drug gangs in Rocinha slum in Rio de Janeiro, Brazil, September 23, 2017.

© 2017 Bruno Kelly/Reuters

On February 16, 2018, president Michel Temer gave General Braga Netto command over all police forces in Rio de Janeiro and its prison system, after decreeing a federal intervention of public security in the state. It was the first such move since Brazil introduced a new Constitution in 1988, shortly after the end of a two-decade military dictatorship.

During 2017, army commanders, including Braga Netto, repeatedly called for “legal protection” for troops deployed in policing operations and urged Congress to shield those accused of unlawful killings from civilian court trials.

In October, Congress acquiesced, approving a law that puts the investigation into killings of civilians during policing operations by members of the armed forces, as may have happened in this case, into the armed forces’ hands.  Any potential trial would be before a court dominated by military officers. This law virtually guarantees that there would be no independent and impartial investigation of these cases, violating international and regional human rights norms. This measure should be repealed immediately, Human Rights Watch said.

As chief of all security forces in Rio de Janeiro, Braga Netto needs to show that he is not trying to bury the case and is committed to finding the killers and ensuring justice, as is his duty

Maria Laura Canineu

Brazil Director, Americas Division

While the law prevents state prosecutors from investigating army personnel as suspects in such killings, the prosecutors can interview them as witnesses. That testimony is crucial to finding out what happened on November 11 and determining the role of civil police, over whom state prosecutors do have jurisdiction.

Homicide investigators and the Group of Specialized Action in Public Security (GAESP, in Portuguese) –prosecutors responsible for investigating unlawful killings and other abuses by state police– have followed their usual procedures to interview civil police personnel involved in the case. In contrast, more than three months after the killings state prosecutors have not been able to find out even the names and units of the soldiers who participated in two raids in the area in which the killings occurred. 

Under the October 2017 law, federal military prosecutors can file homicide charges against members of the armed forces in military courts. A federal military prosecutor opened an inquiry into the case, but there have been no signs of any progress.

Even though the federal military prosecutor has the authority to take statements from members of the armed forces, she told Human Rights Watch in December that she would rely on the army itself to take the statements from those who participated in the November operation. She said she trusted army procedures.

On November 7, army helicopters transported personnel to a forested area within the Complexo do Salgueiro neighborhood of São Gonçalo, near the city of Rio de Janeiro, as part of a large-scale security operation, the Eastern Military Command said later. The soldiers hid there waiting to intercept suspects passing by the Estrada das Palmeiras road, but the operation failed, apparently because someone tipped off local gang members, a justice official told Human Rights Watch.

In the early hours of November 11, CORE –the civil police elite unit—and the army conducted a similar operation in the same area, but with fewer personnel, to prevent leaks, the justice official said. When they reached the Estrada das Palmeiras road aboard three armored vehicles, they found people who had been shot and injured, CORE personnel said. Seven died there, and one more died of his wounds weeks later.

Two people who were injured told prosecutors and reporters that the shots came from the forested area, and that the people who shot them had emerged from the trees. A survivor said they wore black and had laser-vision rifles and helmets. A justice official told Human Rights Watch that such equipment is typical of military special forces and that the CORE does not possess it.

A representative of Defezap —an independent phone service to which people can report police abuse—told Human Rights Watch that they received calls from residents reporting that at around 11 p.m. on November 10, they saw men rappelling from helicopters into the forest without lights.

On November 11, the Eastern Military Command said in a public statement that those who participated in the operation had encountered “armed resistance by criminals.” Later, the command amended that story, saying only that army personnel “heard shootings.”

The command said that no army personnel had fired their weapons, and that therefore, the army would not open an investigation into the killings. The federal military prosecutor opened her inquiry anyway, but is relying on the army to investigate.

Under international and regional norms, cases involving alleged extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish those responsible for human rights violations.”

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights in military jurisdictions, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”

“Brazilian authorities should ensure that the ´legal protection´ that military commanders repeatedly demand for their troops is not used as a carte blanche to commit abuses,” Canineu said.  “As chief of all security forces in Rio de Janeiro, Braga Netto needs to show that he is not trying to bury the case and is committed to finding the killers and ensuring justice, as is his duty.”