Commissioners: James L Cavallero, Esmeralda Arosemana de Troitiño

Petitioners: Global Justice, Conectas Human Rights, CEDACA, Brazilian Institute of Criminal Science (IBBCRIM)

State: Brazil

Petitioners from several Brazilian human rights organizations appeared before the Inter-American Commission on Human Rights (IACHR) to report on the state’s continued non-compliance with its own laws and international law in its treatment of child and adolescent offenders.

Monique Cruz of Global Justice provided the legislative background of the conflict. In 1990 a new law, called the Child and Adolescent Statute (ECA) was passed and brought Brazil into compliance with the Convention on the Rights of the Child. To comply with the ECA, incarceration of youth should be the exception, not the rule. In 2012, Brazil founded the National System for Socio-Education Services (SINASE), which guarantees socio-educational services for detained children. Petitioners pointed out that neither law is being properly carried out, especially with regards to poor black children.

Rafael Custodio of Conectas Human Rights pointed out that the IACHR has already issued precautionary measures regarding Brazil’s treatment of juvenile offenders. Petitioners pointed out that, given how pervasive the issues are across Brazil, incidents of rights violations are not isolated but are part of a general structural problem nationwide.

Dillyane Ribeiro of CEDACA focused on the issue of over incarceration, which results in prison crowding, poor living conditions and lack of access to services. According to Brazilian law, juvenile offenders should be incarcerated briefly or not at all. However, in practice juveniles are incarcerated in over 80 percent of cases. This problem is driven by incarceration for non-violent drug offenses and excessive pre-trial detention. Although pre-trial detention is limited to 45 days by law, incarceration regularly exceeds this limit in practice. Petitioners cited well documented instances of abuse of detained juveniles; including isolation, beatings by guards, and killings inside of prison. Petitioners also mentioned that many youth who are deemed mentally unstable are transferred indefinitely to an “Experimental Health Unit” in Sao Paolo, where they are subject to arbitrary detention and deprived of mental health treatment.

Paulo Malvezzi of IBBCRIM spoke to the issue of judicial backsliding in children’s and adolescents’ rights. He noted that 61 of the bills proposed are aimed at modifying the juvenile justice system, and will have effects on reducing the age of adulthood, increasing pre-trial detentions, and transferring juveniles to “safe” adult prisons. Petitioners requested that the Commission come to Brazil to assess the situation and recommended that the State comply with existing precautionary measures.

Cláudia de Fretas Vidigal, Secretary of Rights of Children and Adolescents of the Ministry of Human Rights, represented the State. She first stated that she agrees with all facts presented and the seriousness of those facts. She noted that since the passage of ECA in 1990 and SINASE in 2012 there has been some progress. She agreed that overcrowding should be addressed with alternatives to incarceration and decreasing pre-trial detention”, however she emphasized that the executive branch needs the cooperation of the judicial branch to effectuate such measures. She stated that her office is actively campaigning against the regressive bills which would roll back human rights progress, however their impact is limited by the conservative congress. She emphasized the importance of international support and domestic civil society groups.

Commissioner James L Cavallero, IACHR’s Rapporteur on Persons Deprived of Liberty, first offered to visit Brazil to assist with the issues presented, to which the State welcomed the Commissioners to visit anytime. Commissioner Cavallero was most concerned with the  legislative roll back of human rights. He also expressed concern with over-crowding and the incarceration of non-violent offenders.

Esmeralda Arosemana de Troitiño, the IACHR Rapporteur on the Rights of the Child, emphasized the need for each federal agency to clearly articulate its stance against regressive new legislation. She also emphasized the importance of closing the Experimental Health Center in Sao Paolo and ending arbitrary detention of juveniles with mental health issues.

Author’s Legal Analysis

Brazil is a signatory to the Convention on the Rights of the Child, and on paper its laws comply with that convention, however, in practice the rights of child and adolescent offenders are regularly and severely violated. Article 37 provides that no child shall be subject to any torture or inhumane treatment and that imprisonment or detention of a child should be used only as a last resort. Article 40 also provides that child offenders have the right to presumption of innocence, and whenever possible, to solve problems outside of the judicial system. If the any of the proposed regressive legislation passes, Brazilian law will be out of compliance with much of the convention, including Article 1, which classifies anyone under 18 as a child.