RESOURCE MATERIAL SERIES No. 108

PARTICIPANTS’ PAPERS
CRIMINAL JUSTICE RESPONSE TO CRIME MOTIVATED BY
INTOLERANCE AND DISCRIMINATION—BRAZILIANLEGISLATION AND EXPERIENCE
André Lopes Lasmar*

I. INTRODUCTION
In his iconic book published in 1936, “Roots of Brazil”1, after having lived a couple of years in Germany asa journalist correspondent and written some articles trying to describe the main characteristics of theBrazilian people to Europeans, the renowned Brazilian sociologist Sergio Buarque de Holanda coined themyth according to which Brazilians are mainly “cordial men” (not necessarily referring to a candid person
but someone who acts mostly by heart than by reason, exactly the opposite of what he had seen in Germany,as he understood both societies at the time). From that time on, it is widely believed both locally andinternationally that the mixed and interracial Brazilian society is a very generous, tolerant and pacific one,not prone to violence or war. Although it is true that Brazil has not waged a war of conquest for many
decades since the Paraguayan War, current statistics of violence and crimes motivated by intolerance anddiscrimination tend to show otherwise of its own people.
The Brazilian Constitution of 1988 establishes that “the practice of racism is a non-bailable crime, with nolimitation, subject to the penalty of confinement, under the terms of the law”2. Brazil signed and ratified mostof the International Documents related to the subject of the protection of individual rights, such as theInternational Covenant on Civil and Political Rights, the International Covenant on Economic, Social andCultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, theConvention on the Elimination of All Forms of Discrimination against Women, the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of
the Child, the International Convention on the Protection of the Rights of All Migrant Workers and Membersof Their Families, and the Convention on the Rights of Persons with Disabilities, among others. Brazil has
also enacted domestic law to enforce most of these international obligations.
Nevertheless, the steadily growing number of crimes motivated by intolerance and discrimination in
Brazil is an undeniable reality, especially in recent times, proving what is widely known—that the very
existence of the legislation to cope with the problem rarely seems to be the single solution to what isperceived as a complex and multifactorial problem. Many changes beyond the legislation and criminal justiceitself must be achieved in order to reduce the number of such crimes, namely educational, economic andsocial structural approaches. It is important though to stress that this paper deals exclusively with viable
and effective criminal justice responses to problems faced here.
After a hotly contested presidential election in October 2018, many minorities in Brazil justifiably fear an
enhancement of such crimes and even more frequent intolerant and discriminatory acts and/or policies
against them in the light of a new far-right regime which is due to rule for the next four years, starting on
1 January 2019. Although it is naturally too soon to draw to any conclusions on this matter, the fact remainsthat this theme is to be seriously studied, observed and addressed not only by the domestic criminal justicesystem but within the Brazilian society and international community as a whole.

* Federal Prosecutor in Brazil and PhD in International Law from the Law School of University of Sao Paulo. Contact:
andrelasmar@usp.br
1
Holanda, Sérgio Buarque. Raízes do Brasil. São Paulo: Editora José Olympio, 1936.
2
Constitution of the Federative Republic of Brazil. Official translation access on http://english.tse.jus.br/arquivos/federal-constitution

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II. TARGETED GROUPS AND VIOLENCE MOTIVATED BY INTOLERANCEAND DISCRIMINATION IN BRAZIL
After more than twenty years of dictatorship in Brazil, the Brazilian Constitution was promulgated in
1988, whose article 5(XLII), as mentioned before, determined that the practice of racism was to be criminalized
as a non-bailable crime, with no limitation, and punished with imprisonment under the terms of the law.
It did not take long (precisely three months to be more accurate, from 5 October 1988 when the Constitution
was promulgated until 5 January 1989) for the Congress to enact a law establishing what is to be considered
racism and its penalties: Act 7716/1989, whose first article determines that crimes resulting from “prejudiceof race or colour” will be punished.
Although this newly enacted law, with its punishment of imprisonment up to five years, was far better
than its previous Act 1390/1951, which considered racism as “the practice of acts resulting from prejudice ofrace or colour” only as a misdemeanour, the new legislation did not eliminate its original problem as being
too narrow in describing which targeted and victim groups would be protected by the law.
It took more than eight years for the Congress to review the scope of it, until it adopted Act 9459/1997,
providing a new definition to the aforementioned article 1, determining that crimes resulting from“discrimination and prejudice against race, colour, ethnicity, religion or national origin” will be punished.
There is no doubt that the new terms of the law are better than the original one, for two main reasons:first, it criminalized both prejudice and discrimination; second, the protected groups were broadened toinclude victims that might be targeted exclusively because of their ethnicity, religion or national origin.
According to Oxford Dictionary, prejudice means: “1. preconceived opinion that is not based on reason or
actual experience. 2. Law. Harm or injury that results or may result from some action or judgement”. And
discrimination means: “the unjust or prejudicial treatment of different categories of people, especially on the
ground of race, age, or sex”.3
The broadening of the protected group is also welcomed, albeit still insufficient. In 2014, a well-known
human rights activist Congresswoman in Brazil presented in Parliament a Draft Act 7582/2014 to “define thecrimes of hate and intolerance and to set mechanisms to prevent them”, whose general but accurate article 2
determines thatevery person, regardless of class and social origin, migrant condition, refugee or internallydisplaced person, sexual orientation, identity and gender expression, age, religion, homelesssituation and disabilities shall enjoy the fundamental rights inherent to every human, and it shallbe guaranteed to them the opportunity to live without violence, and to preserve their physical andmental health as well as their moral, intellectual and social improvement.
Articles 3 and 4 of the Draft Act clarify, respectively, hate and intolerance crimes against the protectedgroups mentioned in article 2. Article 3 determines that it is considered a hate crime if the offence is against“life, physical integrity (assault) or someone´s health motivated by prejudice or discrimination”, while article
4 sets a list of acts which shall be considered as intolerance crimes, such as, psychological violence, to denya position in the public or private sector, to prevent access to public transportation and public or private
schools, among many other unlawful acts described in quite similar terms of the current Act 7716/1989.
Nevertheless, this Draft Act has not been given the deserved consideration by Parliament during its
current term (2014/2018), and some minorities in Brazil fear that the newly elected conservative Congress
due to resume its duties on 1 January 2019 might be even less prone to discuss and enact such measures on
their behalf.
Meanwhile, jurists and the criminal justice system in Brazil must work with the Act still in effect from1989, whose must recent text sets a very specific targeted and protected group against crimes motivated by
3

Oxford Dictionary of English. New York: Oxford University Press, 2010.

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intolerance and discrimination.
A. Intolerance and Violence against Religious Minorities in Brazil
The most recent and official report on Religious Intolerance and Violence in Brazil was presented in 2016
by the Federal Special Secretary on Human Rights, collecting data and information nationwide between 2011
and 2015.4 It considered religious intolerance and violence to be all ideologies and offensive attitudes against
different creeds and religions that might in some extreme circumstances become an actual persecution, hatecrime, discrimination and even the harm against individuals, leading to assault or murder.
During this period between 2011 and 2015, at least 95 cases of assault directed against Afro-Brazilian
people who professed religions with African origins and 99 cases of depredation, arson and destruction ofcult sanctuaries of these religious groups were officially reported, though many more are believed to beunderreported.
The number of cases brought to justice varied from a small number of 12 in 2011/2012 to 31 in 2014/2015,
according to the Report, most of them waiting for a final decision.
B. Violence against Indigenous Peoples of Brazil
Brazilian law also criminalizes acts which are motivated by prejudice or discrimination based on theethnicity of the victim, and this is particularly worrying in relation to the native communities, especially the
Indigenous Peoples, who suffer from aggravated discrimination and poverty in the national society, and wholack the adequate assistance and effective policies to ameliorate their precarious situation.
The Indigenist Missionary Council (Centro Indigenista Missionário, or CIMI), a well-known organizationin defence of Indigenous Peoples´ rights and linked to the Catholic Church, has been presenting its Reporton Violence against Indigenous Peoples since 1996 (since 2003, CIMI has been publishing it annually withdata and information from the previous year), with an alarming and steadily growing number of violent cases
directed against these communities in Brazil.
According to its latest Report presented in September 2018, collecting data from 2017, the amount ofsystematic violence against Indigenous Peoples in Brazil has increased dramatically, including at least thefollowing number of well-reported and documented cases: 110 murders, 27 attempted murders, 19
manslaughters, 14 death threats, 12 assaults, 16 sexual assaults and 36 cases of discrimination and otherforms of threatening.5
The elevated number of crimes and violence specifically targeting these already impoverished communities
is worrying, despite the fact that they represent less than 0.5% of Brazil´s total population (approximatelynine hundred thousand Indigenous Individuals).
C. Crimes Motivated by Race and Colour
Brazil has experienced a spate of homicides unprecedented in modern western history in “peaceful times”(many international and local experts truly believe, though, that Brazil lives in a state of undeclared civilwar), revealing a “devastating scenario” in which Brazil “broke its own record for homicides last year [2017]”,counting 63,880 deaths by violent means.6
According to the Brazilian Institute of Applied Economic Research (or IPEA based on its acronym inPortuguese), in cooperation with the Brazilian Forum on Public Security, the Atlas from violence in 2017
showed that most victims of such violent crimes in Brazil in 2016 were men (92%), black (74.5%) and young
4
Secretaria Especial de Direitos Humanos. Relatório sobre Intolerância e Violência Religiosa no Brasil (2011-2015): Resultados
Preliminares. Access on: http://www.mdh.gov.br/informacao-ao-cidadao/participacao-social/cnrdr/pdfs/relatorio-de-intoleranciae-violencia-religiosa-rivir-2015/view
5Conselho Indigenista Missionário (CIMI). Relatório Violência conta os Povos Indígenas no Brasil – Dados de 2017. Access on
https://cimi.org.br/wp-content/uploads/2018/09/Relatorio-violencia-contra-povos-indigenas_2017-Cimi.pdf
6‘A devastating scenario’: Brazil sets new record for homicides at 63,880 deaths. The Guardian, published online on 9th
August 2018: https://www.theguardian.com/world/2018/aug/09/brazil-sets-new-record-for-homicides-63880-deaths. Access on
03/11/2018.

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between 15 and 29 years old (53%).7
Although it is not possible to affirm on legal terms at least that all these crimes against young black men
were motivated by intolerance and discrimination (most are believed to be the result of drug trafficking wars
in major cities), this same research published in its 2018 version concludes that “racial inequality in Brazil
expresses itself in a very clear manner in relation to lethal violence and policies of public security”.8 It is also
observed that the risk of a young black boy to be a victim of homicide is 2.7 times higher than that of a young
white boy in Brazil.
D. Crimes Motivated by Gender and Sexual Orientation
After a paradigmatic case in the Inter-American Commission on Human Rights in Washington/DC
presented against Brazil in 1998, a law was finally enacted in 2006, known as “Maria da Penha Act” (in regard
to the victim´s name of the case presented before the Commission), aggravating the penalty of domestic
violence.
Recently, the Brazilian Congress enacted the “Feminicide Act” (or “Femicide Act”; Act 13104/2015),
declaring as Murder in the First Degree (“qualified and aggravated murder”) the homicide of a women forthe simple reason of her feminine condition, either in domestic and family violence cases, or due to scorn or
discrimination against her nature as a woman.
LGBT (lesbian, gay, bisexual, and transgender) communities have been fighting for many years to have asimilar specific criminalization of acts directly targeting them, although the Brazilian Congress has refused
to adopt it, until now. Differently from other groups, these groups are not especially protected by the law
and many of them feel marginalized in relation to other victims, particularly due to the restrictive
categorization of the Brazilian legislation.
According to a recent report of an important activist Non-Governmental Group, at least 387 murders
were committed in 2017 in Brazil motivated by sexual intolerance and discrimination.9

III. BRAZILIAN APPROACHES BY THE CRIMINAL JUSTICE SYSTEM TO
CRIMES MOTIVATED BY INTOLERANCE AND DISCRIMINATION
Although the number of crimes motivated by intolerance and discrimination in Brazil is considerably
high, the main cause for it is not a lack of legislation, but its enforcement as well as an absence of a coherent
and nationally uniform mechanism and effective responses to this type of criminal offence.
The aforementioned Draft Act 7582/2014 intends to cope with this absence of uniformity and reliabledata by establishing in its article 6 the following obligations of Brazilian authorities: I – the operational
integration of the Judiciary, the Prosecution Service and the Public Legal Defence in order to safeguard
victims´ rights; II – the elaboration of studies, research, statistics and other relevant information that could
map the causes, consequences and the frequency of the practice of such hate crimes motivated by intolerance;
III – the adoption of a specialized police district to cope with crimes motivated by hate and intolerance; andIV – to stimulate the continuous learning of public servants in the attendance of potential victims of suchcrimes.
The lack of reliable data and statistics involving crimes motivated by intolerance and discrimination in
Brazil is remarkable and undeniable, since most data and information are gathered by non-governmentalorganizations, as shown in this paper.
Nevertheless, one major advance in this area in Brazil might come from the already implemented (in7Instituto de Pesquisa Econômica Aplicada (IPEA). Atlas da violência 2017. Access on http://www.ipea.gov.br/atlasviolencia/
download/2/atlas-2017.
8
Instituto de Pesquisa Econômica Aplicada (IPEA). Atlas da violência 2018. Access on http://www.ipea.gov.br/portal/images/
stories/PDFs/relatorio_institucional/180604_atlas_da_violencia_2018.pdf
9 Grupo Gay da Bahia. Pessoas LGBT mortas no Brasil – Relatório 2017. Access on https://homofobiamata.files.wordpress.
com/2017/12/relatorio-2081.pdf

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some States) obligation number three, mentioned above, in the Draft Act 7582/2014, determining the adoptionof a specialized police district to cope with crimes motivated by intolerance and discrimination, which is
known in Brazil as DECRADI (in its original Portuguese acronym from “Delegacia de Crimes Raciais e
Delitos de Intolerância”, or Police District on Racial Crimes and Intolerant Offences).
The first experience of its kind in Brazil was established in 2006 in Sao Paulo (Brazil´s largest and mostpopulated city), specifically designed to combat racism and homophobia, prejudice and intolerance against
religious minorities, as well as crimes against ethnic minorities, migrants and Romani (or Roma) people(popularly but improperly called “Gypsies”).
In the last few years several other States have created their own DECRADI. The actual results in mostparts of Brazil are still to be seen. Just as an example, Rio de Janeiro, Brazil´s second most populated city,
has only recently in August 2018 implemented its first DECRADI.
The experience in Sao Paulo, on the other hand, has shown that the establishment of a specialized police
force against crimes motivated by intolerance and discrimination is welcome: from January 2010 until
November 2015 the DECRADI of Sao Paulo investigated 962 cases.10
The expected future coordination among all sectors of the criminal justice system is to be thoroughly
discussed and implemented as soon as possible, since the number of crimes motivated by intolerance anddiscrimination is rising significantly in Brazil.

IV. CONCLUSION
Brazil has a high record of crimes motivated by intolerance and discrimination, despite the fact it has
immediately after the promulgation of its latest 1988 Constitution enacted a specific law coping with the
problem of racism. Thirty years later, the world and Brazilian society have significantly evolved, and the
newly elected Congress with the newly elected President should gather and discuss a new set of morecomprehensive rules, in order to cope with this “devastating scenario” of more than sixty-three thousand
violent deaths only last year.
It is time for the Federal Government to show that it does not condone any
sort of violence, especially that which is criminalized as hate crime or motivated by intolerance anddiscrimination. The criminal justice system would never be, for obvious reasons, the single solution to this
holistic problem, since educational, economic and social approaches are indispensable. But its response to thistype of crime is certainly a good start, and the criminal justice system definitely plays a key role in thesolution

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Government of the State of Sao Paulo´s webpage, access on http://www.ssp.sp.gov.br/LeNoticia.aspx?ID=36514