Letter to Rio de Janeiro’s attorney general, Luciano Mattos

Esteemed Attorney General,

We write to express our serious concern about the elimination of the Group of Specialized Action in Public Security (GAESP, in Portuguese) and to urge you to establish a well-resourced unit of prosecutors dedicated to developing and enforcing police protocols to prevent abuses, and investigating and prosecuting police abuses when they occur.[1]                                                       

Human Rights Watch is an international nongovernmental organization that investigates and reports on human rights abuses around the world. In conducting our research in various countries, we apply international human rights law. We work with governments and civil society to uphold human rights and the rule of law.[2]

Our organization has conducted research on police abuse in Brazil, particularly in Rio de Janeiro, for decades. Our reports document scores of cases in which police officers who committed abuses manipulated and destroyed evidence; civil police failed to conduct adequate investigations into police killings; and prosecutors failed to hold accountable officers responsible for abuses.[3]

Human Rights Watch research demonstrates that so long as impunity remains the norm, large numbers of unlawful police killings will continue to occur, and efforts to improve public security in Rio are likely to fail. We urge you to make ending such impunity a top priority of the Prosecutor’s Office under your leadership.

Abuse and Impunity

Police abuse is a chronic human rights problem in Rio de Janeiro state. Police killings were at record levels in Rio de Janeiro until June 2020, when the Supreme Court prohibited police raids in low-income neighborhoods there during the Covid-19 pandemic, except in “exceptional cases.”[4] Police in Rio still killed more than 1,200 people last year, which is more than the total number of people shot and killed by police in the whole United States in 2020.[5]

While some police killings are in self-defense, many others are the result of excessive and reckless use of force, as documented by Human Rights Watch and other organizations.[6] Police abuses contribute to a cycle of violence that undermines public security and endangers the lives of civilians and police officers alike.

Impunity is a crucial factor that allows unlawful police killings to continue. The latest available data are from an inquiry by the Rio Legislative Assembly that found that 98 percent of investigations into police killings from 2010 to 2015 were closed without any charges.[7] The Rio Prosecutor’s Office has never published a comprehensive report about police killings that includes data about how many cases are prosecuted. That in itself is a failure that we would urge you to correct.

The Key Role of the Prosecutor’s Office under Domestic and International Law

Responsibility for failure to curb impunity for police abuses lies primarily with the Prosecutor’s Office. While the civil police share much of the blame—given their failure to adequately investigate cases of police abuse, as documented by Human Rights Watch and others[8]—the Prosecutor’s Office has ultimate authority to exert “external oversight” over civil and military police and to ensure proper criminal investigations into police abuses.[9] The Prosecutor’s Office also has authority to carry out its own investigations into cases of police abuse.[10]

Brazil is obligated under international law to conduct proper investigations into extrajudicial executions. The Inter-American Court of Human Rights has ruled that “in cases of extra-legal executions, it is essential for the State to effectively investigate deprivation of the right to life and to punish all those responsible, especially when State agents are involved, as not doing so would create, within an environment of impunity, the conditions for such events to recur...”[11] An effective investigation is one that is “thorough, prompt, and impartial,” according to international standards.[12]

In 2017, in a Rio de Janeiro case on which Human Rights Watch was one of the initial petitioners, the Inter-American Court found that Brazil had failed to ensure independent and impartial investigations into the killings of 26 people. The killings were committed in two massacres, in 1994 and 1995, during civil police operations in the Nova Brasília neighborhood. It was investigated by civil police. The court found the investigation was “full of omissions and negligence”; investigators failed to take “minimum necessary investigative steps,” their actions were “biased,” and they “lacked effective independence.”[13] The court ordered Brazil, among other measures, to ensure that police killings, torture, and other police abuses are investigated by “an independent body, different from the public force involved in the incident, such as a judicial authority or the Public Prosecutor’s Office, assisted by police, forensic and administrative personnel outside the security agency to which the possible suspects belong.”[14]

In a 2020 preliminary decision that found that Rio authorities had failed to curb police killings, Supreme Court justice Edson Fachin asserted that Brazil’s Constitution tasks the Prosecutor’s Office with ensuring accountability for police abuses, a role that the court noted the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials also requires an “independent institution” such as the Prosecutor’s Office to fill.[15] Justice Fachin ruled that investigations of abuses by police carried out by civil police do not meet the “requirement of impartiality, required by international human rights treaties” and he ordered the Rio de Janeiro Prosecutor’s Office to conduct its own investigations in cases of suspected police misconduct. [16] He ruled:

Whenever there is suspicion of involvement of public security agents in criminal offenses, the relevant office within the Prosecutor's Office will be responsible for the investigation. The Prosecutors Office needs to carry out that responsibility ex officio and initiate it promptly, a fact that in no way diminishes the duty of police to send reports about the operation to prosecutors and to conduct investigations, of an internal nature, into any wrongdoing.[17] 

The GAESP’s Track Record

In July 2015, after an administrative investigation by prosecutors, the state of Rio reached a legal agreement with the Prosecutor’s Office whereby it committed to taking specific steps to improve working conditions for military police, while the Prosecutor’s Office committed to establishing a unit of prosecutors to exert “external oversight” of the police forces.[18] The creation in December 2015 of that unit, the Group of Specialized Action in Public Security (GAESP), was an important step forward.[19] Human Rights Watch had called for its creation for years.[20]

After the GAESP was established, we repeatedly urged your predecessors to strengthen it. We believed it lacked sufficient full-time prosecutors and support, including forensic and other experts, to fulfill the huge task of leading the work on the persistent and widespread problem of police abuse in Rio.[21] In March 2021, it had 14 prosecutors –3 of them dedicated entirely to the Group and the rest combining those tasks with other responsibilities.[22]

Despite its limited resources, the GAESP made important contributions to the prevention and prosecution of police abuse in Rio de Janeiro. In March 2021, it was working on more than 700 investigations of police abuse and had filed charges in 24 cases of police killings since 2019, including high-profile cases such as the killing of 8-year-old Ágatha Vitória Sales Felix at Complexo do Alemão in 2019.[23] Prosecution of high-profile cases send an important message to police that abuse won’t be tolerated.

The GAESP also filed charges of sexual abuse by police during the raids in Nova Brasilia after the Inter-American Court ruling mentioned above that ordered the state to re-open the investigation into abuses committed during those raids.[24] In addition, the GAESP sued the state of Rio to force it to comply with the rest of the Inter-American Court’s decision, including by establishing a plan to reduce police violence and police killings.[25]

The GAESP also opened administrative investigations, which can eventually lead to lawsuits against the state, to expose practices by police that violate basic rights and to force the adoption and enforcement of protocols to prevent abuse.

For instance, the GAESP opened an administrative investigation to press civil and military police to draft comprehensive protocols for the use of helicopters, armored vehicles and drones.[26] It also opened a civil case for “administrative misconduct” against two police commanders and a helicopter pilot for their role in a 2019 operation that used schools as police bases at Complexo da Maré neighborhood and deployed a helicopter from which 480 shots were fired near several schools, putting students, teachers, and other residents at risk.[27]

The GAESP also pursued protocols to ensure that police did not take dead bodies to hospitals alleging the victims were injured and they were “rescuing” them, as a ruse to destroy crucial evidence in cases of police killings.[28] It recommended that the Rio Municipal Education Secretariat assess security conditions at schools and create a compulsory notification system for municipal schools when shootings erupt nearby.[29] It sued the state of Rio to force it to require police to wear identification on their uniforms when deployed in crowd-control operations.[30] And it opened an administrative investigation into working conditions for civil police officers that led to improvements in their salaries, equipment, training and mental health support, among others.[31]

The above examples show the crucial role of a prosecutorial unit that focuses on police abuse throughout the state.

The Need for a Specialized Prosecutors’ Unit

In March 2021, you announced the elimination of the GAESP and said cases of police abuse would be handled solely by prosecutors with jurisdiction over the case (“promotores naturais,” in Portuguese) –mostly prosecutors who are in charge of prosecuting crimes in a specific geographic area–without the involvement of a specialized group of prosecutors.[32] That was the setup before the creation of the GAESP in December 2015. It was fraught with problems that contributed to the failure of successive Rio attorneys general to effectively supervise the police. Here are some of the difficulties that arose then and are likely to arise again:

• Prosecutors find themselves investigating abuses committed by the same police officers with whom they work closely in other cases in the same jurisdiction.
• Prosecutors fear that signing a charging document on their own against police officers involved in abuses in their jurisdiction puts them at risk of retaliation.
• Prosecutors may decide not to open their own investigations into police abuses, and instead rely solely on the findings of investigations carried out by civil police, which raises serious questions of impartiality.
• Prosecutors find it difficult to handle often complex police abuse cases, while dealing with a heavy caseload that includes all kinds of other criminal activity. 
• Prosecutors lack expertise in investigating cases involving police abuse.

You have also announced the creation of the office of General Coordinator of Public Security, with the mission of coordinating the work of the Prosecutor’s Office on public security.[33] However, the resolution creating the office of the General Coordinator of Public Security does not give it authority to investigate and prosecute individual cases of police abuse. You have, in fact, clarified in a press interview that the office “will not do a prosecutor’s work.”[34] Instead, you said, the office will provide “support” to prosecutors, without providing any details. Prosecutors already receive support from databases and forensic experts within the Prosecutor’s Office. 

In addition, the resolution does not give the office of General Coordinator of Public Security the authority to conduct administrative investigations and other legal actions into police protocols and practices that can be instrumental to ensure police respect human rights.

For those reasons, the powers of the new office fall far short of what is needed to address the very serious problem of police abuse in Rio de Janeiro. We believe that it is crucial that the Rio Prosecutor’s Office has a specialized unit of prosecutors to fulfill the task of ensuring independent oversight of police work and accountability for abuse in Rio, a requirement spelled out by the Inter-American Court of Human Rights, Brazil’s Supreme Court, and Brazil’s Constitution.

Members of the unit should develop expertise in this type of case; analyze patterns of abuse and recognize modi operandi; and identify and investigate specific police units and individual officers responsible for large numbers of potentially unlawful killings. The unit should be able to file charges in individual cases, instead of leaving promotores naturais to do that on their own. It should ensure police forces have and comply with protocols and other norms to prevent abuse.

A specialized prosecutorial unit could also ensure that police comply with the June 2020 Supreme Court decision that prohibits police operations in low-income neighborhoods in Rio de Janeiro during the Covid-19 pandemic, except in “exceptional cases.”[35] That decision orders police to inform the Rio Prosecutor’s Office of any such operation. The unit would work with police to define what police action should be considered “a police operation,” and what circumstances constitute an “exceptional case” that would justify a police raid during the pandemic.

Recommendations

Human Rights Watch urges you to ensure that the Rio Prosecutor’s Office has a group of prosecutors with specific expertise in cases of police abuse, either by restoring the GAESP or setting up another team to carry out a similar mandate. Such a specialized unit should:

• Have enough personnel and resources to perform prompt and independent investigations into cases of policee abuse, which requires the assignment of a significant number of prosecutors - incluing prosecutors dedicated full time to that task - and technical support from forensic experts with expertise in key elements of homicide investigations, such as crime scenes and ballistics analyses.

• Take statements from relatives of victms and witnesses, some of whom may fear that providing stantements to police investigators will put them at risk of retaliations by police; and receive public complaints about police misconduct.
• Pursue vigorous investigations and, where appropriate, prosecutions not only of unlawful police killings and others police abuses but also of efforts to cover them up, which requires visiting the site with forensic experts immediately after the incident and arranging for and participating in the subsequent crime scene reconstruictions.
• Respond to investigatory failures by civil police with - depending on their nature and severity - institutional pressure, referrals to the internal affairs unit of the police, or criminal prosecution.
• Work together with civil and military police to design—and ensure compliance with—protocols to curb police abuse and to guarantee proper investigations when abuses occur; such as protocols to prevent destruction of evidence and to ensure that investigators abide by international standards, including adequate forensic analysis.
• Regularly publish reports about police killings and other abuses in Rio, and about investigative and prosecutorial actions taken in response. 

We congratulate you on your appointment to serve as the Attorney General of Rio. We would be delighted to discuss these crucial issues, as we did with your predecessors, if not in person, due to the Covid-19 pandemic, during an online meeting.

Sincerely,