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Brazil: Counterterrorism bill endangers basic rights

This statement was originally published on hrw.org on 13 November 2015.

A counterterrorism bill under consideration in Brazil contains overbroad and vague language that endangers basic human rights such as freedom of association and expression, Human Rights Watch said today. Brazil's Chamber of Deputies should reject the bill.

“Imprecise definitions of terrorism open the door to potential misuse of the law against people who have nothing to do with terrorism,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “The Chamber of Deputies should safeguard the fundamental rights of all Brazilians and reject the bill.”

The Senate approved the bill, PLC 101/2015, on October 28, 2015. It is pending before the Chamber of Deputies.

The bill defines terrorism as an “attack against a person, through violence or serious threat, motivated by political extremism [emphasis added], religious intolerance, ethnic, racial and gender prejudice or xenophobia, with the objective of provoking generalized panic.” The bill further defines “political extremism” as “a serious attack against the stability of the democratic system with the purpose of subverting the functioning of its institutions.”

The Senate removed a safeguard in the bill introduced by the Chamber of Deputies, which stated that the definition of terrorism did not apply to political demonstrations, social movements, unions, and religious and professional movements that defend rights and freedoms.

A person convicted of a terrorism offense would face between 16 and 24 years in prison in cases in which no death occurred, and between 24 and 30 years for an act that caused a death.

Under the bill, “taking over” various sites, including roads, schools, or “public or private buildings,” is to be considered a “terrorist act,” if motivated by “political extremism” with the objective of provoking “generalized panic.” This broad provision, which does not specify any requirement that the “take over” involve any risk to life or security, could potentially be interpreted to allow officials to prosecute as terrorists, landless peasants who block roads, students who occupy schools, or indigenous people who refuse to leave public buildings during protests. Brazil already has laws in place to protect against offenses such as unlawful trespass and criminal damage, which carry penalties such as fines or up to three years in prison if there is damage to property.

The bill also introduces the crime of “advocating terrorism” without any explanation of what that entails, punishable by three to 8 years in prison. It includes prison sentences of 10 to 20 years for joining terrorist organizations – even though the law does not define a terrorist organization – or for recruiting people to commit terrorism, or training them or providing them with financing for terrorism. Because of the bill's overbroad provisions of what can be treated as “terrorism,” those provisions could be used against peaceful advocacy groups.

In failing to define the scope of the crimes narrowly, the bill would not satisfy the internationally recognized test of legality, which requires the law to be set out with sufficient precision and clarity so that its application is foreseeable, and people can regulate their conduct with certainty to comply.

Four United Nations experts, including the experts on freedoms of association and assembly, freedoms of opinion and expression, and protection of human rights defenders, criticized the bill in a joint statement on November 4, saying that it is “too broadly drafted and may unduly restrict fundamental freedoms.”

Although there is no universally recognized definition of terrorism in international law, standards provide that the term should not be used to criminalize acts that lack the elements of intent to cause death or serious bodily injury, or the taking of hostages. The UN General Assembly has urged countries to “ensure that their laws criminalizing acts of terrorism are…formulated with precision.” Similarly, the Inter-American Commission on Human Rights has warned that laws that prescribe “a comprehensive definition of terrorism that is inexorably overbroad and imprecise” violate the principle of legality. According to the Inter-American Court of Human Rights, “definitions of crimes must clearly describe the criminalized conduct, establishing its elements, and the factors that distinguish it from other forms of conduct that are either not punishable or punishable with non-criminal measures.”

The Inter-American Commission has also noted that “laws that broadly criminalize the public defense (apologia) of terrorism or of persons who might have committed terrorist acts, without considering the element of incitement to lawless violence or to any other similar action, are incompatible with the right to freedom of expression.”

Human Rights Watch research shows that countries around the world have used vaguely worded counterterrorism laws to target nongovernmental groups, stifle peaceful dissent, and restrict freedom of expression.

In Ecuador, prosecutors have misused sweeping counterterrorism provisions against participants in public protests and other gatherings. In one case, 10 people were sentenced in May 2013 to a year in prison for attempted terrorism for participating in a peaceful meeting to plan a protest.

In Egypt, the government has used harsh penalties and an overbroad definition of terrorism that can encompass civil disobedience as a cudgel against political opponents.

Russia's law bans the media from publicly justifying terrorism – a loose term that could be used as a censorship tool – and allows authorities to deny journalists access to special “counterterrorism operations” zones, where law enforcement officials have sweeping powers of search and arrest. Authorities have invoked this provision to prevent journalists from reporting on law enforcement crackdowns in areas of the volatile North Caucasus region such as Ingushetia.

“Under Brazil's draft law, a protester who uses threatening language in a verbal exchange with a police officer could face at least 16 years in prison as a terrorist,” Canineu said. “Of course, a protester who engages in violence should be held accountable but the punishment should be proportionate to the crime.”

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