IV. Assessment of the situation

A. General

Lesbian, gay, bisexual, transgender and intersex persons

32. The Special Rapporteur notes with concern that little data exist on lesbian, bisexual, transgender and intersex people in conflict with the law in Brazil. Few people declare themselves as such in prison, the great majority of incidents are not reported due to fear of retaliation from the perpetrator(s), and there is little interest in mapping such incidents.

33. From the information available, the Special Rapporteur understands that they are the target of systematic threats and serious harm to their physical and psychological integrity, including sexual violence and killings during arrests and detention, by police and penitentiary agents, as well as by fellow inmates.

34. Joint resolution 1/2014 of the National Council on Criminal and Penitentiary Policies and the National Lesbian, Gay, Bisexual and Transgender Council provides that lesbian, bisexual, transgender and intersex persons are entitled to specific wings and cells. Compulsory transfers are, in principle, considered a violation, but the resolution foresees no sanctions in the event of breaches. In terms of access, according to Infopen, in 2014 only about 5 per cent of establishments had special cells for this group. The resolution is unclear about how and by whom searches of lesbian, bisexual, transgender and intersex people must be conducted. Implementation is left up to each institution, and there are no sanctions for non-compliance.

35. The joint resolution is undoubtedly a positive step; however, the Special Rapporteur is concerned that it could contribute to the further exclusion and isolation of such persons, depending on how it is implemented.

36. In terms of access to health services, lesbian, bisexual, transgender and intersex persons are, relative to the rest of the prison population, likely to be additionally affected by inadequacies stemming from overcrowding. In that regard, the joint resolution establishes that the national health policies relating to lesbian, bisexual, transgender and intersex persons, including access to hormone treatment, also apply in prisons.

B. Torture and ill-treatment

Documentation of torture and the role of the Medical-Legal Institute

80. It is of crucial importance to strengthen the country’s capacity to produce and publicize clear and relevant data, including the incidence of torture, ill-treatment and death in custody among various vulnerable groups, including racial, sexual, gender and other minority groups.

C. Safeguards and protection

90. In addition, the Special Rapporteur received concerning reports of a recent incident, on 17 August 2015, when a team from the statewide preventive mechanism of Pernambuco, during a detention visit, was subjected to racist and transphobic insults and death threats by one guard, who reportedly also drew his gun. Such acts are utterly detrimental to any monitoring and documentation efforts and must immediately be prevented, investigated and punished.

V. Conclusions and recommendations

A. Conclusions

141. With regard to legislation, safeguards, prevention and institutional reform, Brazil has made significant progress on paper; however, implementation is lagging far behind.

142. Torture and ill-treatment in the course of interrogation are frequent occurrences. Killings by police and by prison staff continue and are not isolated incidents. They most notably affect persons belonging to racial, sexual, gender and other minority groups.

B. Recommendations

148. With regard to safeguards and prevention, the Special Rapporteur recommends that the Government:

(c) Ensure the allocation of adequate resources to comprehensive training of police and prison personnel, particularly to deal respectfully with and protect members of racial, sexual, gender and other minorities;

(e) Take measures to eliminate discrimination against minority groups, including based on race, sexual orientation and gender identity;

(f) Ensure that all states follow the recommendation contained in the joint resolution (1/2014) of the National Council on Criminal and Penitentiary Policies and the National Lesbian, Gay, Bisexual and Transgender Council, to establish separate cells for persons who are particularly exposed because of sexual orientation and gender identity, and protect them against exclusion and isolation;

Link to full text of the report: Report-SRTorture-Brazil-2016-eng

Link to comments on the report by the State: Report-SRTorture-Brazil-comments-2016-eng