The death penalty has not been used in Brazil since the proclamation of the Republic in 1889.
Brazil is a State Party to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which it ratified on 13th August 1996.
The Brazilian Federal Constitution (1988) expressly prohibits the use of the death penalty by the penal justice system (Article 5, Paragraph 47). However, the death penalty may be applicable, according to international law, in case of declared war, under the terms of Article 84, paragraph 19, of the Federal Constitution, which states that the President of the Republic has the exclusive power to declare war, in the event of foreign aggression, authorised by the National Congress or confirmed by it.
According to international law, "application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime" is admissible. Article 2, paragraph 1 of the United Nations Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, allows State Parties to make a reservation in these terms, at the time of ratification or accession to the Protocol.
The Protocol to the American Convention on Human Rights to Abolish the Death Penalty also allows a reservation "in wartime in accordance with international law, for extremely serious crimes of a military nature" (Article 2). Brazil has made a reservation under Article 2 of the Protocol.
Protocol to the American Convention on Human Rights to Abolish the Death Penalty
THE STATES PARTIES TO THIS PROTOCOL, CONSIDERING:
That Article 4 of the American Convention on Human Rights recognises the right to life and restricts the application of the death penalty,
That everyone has the inalienable right to respect for his life, a right that cannot be suspended for any reason,
That the tendency among the American States is to be in favour of abolition of the death penalty,
That application of the death penalty has irrevocable consequences, forecloses the correction of judicial error, and precludes any possibility of changing or rehabilitating those convicted,
That the abolition of the death penalty helps to ensure more effective protection of the right to life,
That an international agreement must be arrived at that will entail a progressive development of the American Convention on Human Rights, and
That States Parties to the American Convention on Human Rights have expressed their intention to adopt an international agreement with a view to consolidating the practice of not applying the death penalty in the Americas,
HAVE AGREED TO SIGN THE FOLLOWING PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS TO ABOLISH THE DEATH PENALTY:
The States Parties to this Protocol shall not apply the death penalty in their territory to any person subject to their jurisdiction.
- No reservations may be made to this Protocol. However, at the time of ratification or accession, the States Parties to this instrument may declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature.
- The State Party making this reservation shall, upon ratification or accession, inform the Secretary General of the Organization of American States of the pertinent provisions of its national legislation applicable in wartime, as referred to in the preceding paragraph.
- Said State Party shall notify the Secretary General of the Organization of American States of the beginning or end of any state of war in effect in its territory.
- This Protocol shall be open for signature and ratification or accession by any State Party to the American Convention on Human Rights.
- Ratification of this Protocol or accession thereto shall be made through the deposit of an instrument of ratification or accession with the General Secretariat of the Organization of American States.
This Protocol shall enter into force among the States that ratify or accede to it when they deposit their respective instruments of ratification or accession with the General Secretariat of the Organization of American States.