VII. The Inadequacy of Current Monitoring E fforts

As a general rule, many abuses in juvenile detention centers occur because they are closed institutions subject to little outside scrutiny.Beatings and other cruel and degrading treatment are the product of a systemic failure of accountability.In recognition of this fact, international standards call for independent, objective monitoring of juvenile detention centers as a critical safeguard against abuses in detention.[118] Abuses are less likely if officials know that outsiders will inspect their facilities and call attention to abuses.Regular, guaranteed access to juvenile detention facilities by a variety of outside monitors-public defenders, prosecutors, judges, national and international human rights groups, and legislative commissions-can play an immensely positive role in preventing or minimizing human rights abuses.

The State Secretariat for Childhood and Youth, the secretariat to which DEGASE now reports, has taken several encouraging steps in recent months.After it received reports from the State Council for the Defense of the Child and Adolescent of abuses in Padre Severino, it initiated its own inquiry and eventually ordered the removal of the director at the center along with several guards.[119]More recently, it has suggested that it will propose the creation of a juvenile detention Inspector General's Office that is independent of DEGASE.

Without independent monitoring, followed by effective administrative sanctions and prosecution in appropriate cases, the kinds of abuses we describe in this report and our previous report will continue unchecked.

Impunity

In our December 2004 report, we found that most detention centers fail to investigate complaints of abuse and that administrative sanctions are rarely imposed in practice.No authority we spoke with had heard of a guard being convicted for abusive conduct.[120]

Independent research efforts by the Committee for the Monitoring of the Juvenile Justice System of the State Council for the Defense of the Child and the Adolescent, the State Secretariat for Childhood and Youth, the public defender's office, the Center for Justice and International Law, and DEGASE itself found only five criminal cases that were ever brought against guards and other DEGASE staff for abuses against youths.[121]Only one such case, dating from 1994, ended in conviction and imprisonment.One of those convicted in that case, Jurandir Rodrigues da Costa, has avoided serving the sentence of four years and one month that he received.[122]Four cases are still thought to be pending-one dating from 1999, another from 2002, and two from August 2004.

Judge Vianna cited the single case of conviction and imprisonment as an indication that the juvenile justice system has accountability mechanisms.[123]However, the fact that there is only one case of conviction and imprisonment for abuse after well over a decade of regular credible allegations of such incidents leads to the opposite conclusion-that state authorities have systematically failed to investigate and punish cruel and degrading treatment and other abuse.Impunity is the rule in juvenile detention centers, something that is not likely to change unless independent monitoring mechanisms are created, reformed, or reinvigorated.[124]

DEGASE's Inspector General's Office

The lack of effective internal monitoring is due in part to the fact that DEGASE's Inspector General's Office reports to the department's director general and thus has no independence.As State Undersecretary for Childhood and Youth Evandro Steele put it, "This is wrong.Me investigate myself?That does not work." [125] According to Undersecretary Steele, the director general of DEGASE has the authority to appoint and remove his inspector general, and any such appointment only requires the approval of the state governor. [126] The office's lack of independence means that it is unable to monitor the department effectively.

The State Secretariat for Childhood and Youth, the secretariat that now has responsibility for DEGASE, is preparing a proposal that would remove the Inspector General's Office from DEGASE and place it instead as a separate, autonomous entity within the secretariat.This proposal shows promise, particularly if an independent Inspector General's Office is given full access to places of detention and all investigatory powers necessary to carry out its mandate.It should also be given the authority to receive complaints directly and to refer cases to the public prosecutor's office.In addition, it should be required to report its findings publicly.

The Absence of Monitoring by State Prosecutors

Even an independent inspector general's office can only do so much to combat impunity if state prosecutors do not also exercise their own monitoring role.Despite having the most important and most expansive oversight mandate in the juvenile justice system, the state prosecutor's office has neglected this role, focusing almost entirely on the prosecution of adolescent offenders.

Article 201 of the Statute of the Child and the Adolescent places various supervisory and investigatory legal powers and duties with the state prosecutor's office.In particular, under article 201(XI), government prosecutors have the authority "to inspect the public and private service entities and programs that are referred to in this Law, adopting promptly the administrative or judicial measure necessary for the removal of irregularities that are verified."[127]In exercising this function, representatives of the prosecutor's office have "free access to every location where children and adolescents are found," a fact that state prosecutors confirmed when they met with us.[128]Among other measures state prosecutors may take in response to violations, they may bring a "public civil action" (ao civil pblica), a proceeding roughly equivalent to a class action lawsuit against the state.[129]

But prosecutors rarely exercise their monitoring function.We asked Marinete Laureano, director of Santos Dumont, if prosecutors ever inspected her detention center."That would be tough to see," she replied, meaning that such a thing happened rarely, if ever.[130]Attorneys with the public defender's office expressed similar doubts that prosecutors ever conducted inspections."Our team goes to these centers [Joo Luiz Alves and Santos Dumont] each week, and we have never seen them there," Eufrsia Souza told Human Rights Watch.[131]In fact, the state prosecutor's website contains inspection forms for adult prisons, shelters, and police holding cells but no form for inspections of juvenile detention centers, suggesting that prosecutors do not carry out such inspections as a matter of routine.[132]

The public prosecutor's office is aware of allegations of abuse in Rio de Janeiro's juvenile detention centers.Human Rights Watch representatives have met with prosecutors three times in the last two years, most recently in May 2005.And Mrcia Castro, a lawyer at the Bento Rubio Foundation Center for the Defense of Human Rights, commented, "We have already sent accusations [concerning DEGASE] to the state prosecutor's office, but I did not see much action taken."[133]

Human Rights Watch is aware of only two instances in recent years in which prosecutors attempted to inspect a juvenile detention center for cases of violence.One of these was in November 2002, when state prosecutors visited Santo Expedito at the invitation of the public defender's office after a major rebellion left one youth dead, several injured, and most of the center in flames.[134]The prosecutors never followed up on their visit and have not returned to the center since that time to check for cases of abuse."I ask every time I go there [to Santo Expedito].They have never come," said Fabrcio El-Jaick, an attorney with the public defender's office.[135]

The second instance, as recounted in our December 2004 report, was a surprise inspection of Padre Severino in July 2003, leading to the closing of a cramped, windowless punishment cell.[136]This surprise inspection was a rare and welcome step toward accountability.Regrettably, no similar step has been taken by the state prosecutor's office since that time.

State prosecutors are now gradually undertaking some monitoring efforts.In what one prosecutor described as "the inauguration of a new era," a team from the state prosecutor's office visited each juvenile detention center at least once in 2004.The teams inspected the physical conditions of each facility and the educational program each offered.It found particular faults with the education offered at the centers; as another prosecutor noted, "There is a failure" in that area.However, as prosecutors themselves recognized, the 2004 visits were not designed to investigate potential cases of abuse. Violence-related inspections are still carried out only in response to specific complaints, usually from family members of youths in detention.[137]

We urged prosecutors in May 2005 to improve upon these efforts by systematically including investigation of acts of violence and other abuses against youths in detention.In response, prosecutors told us that "there is a possibility" that future inspections would include monitoring of abuses.[138]

Such a step would be a welcome one.Until now, the prosecutor's office has been conspicuously absent throughout the current crisis in Rio de Janeiro's juvenile detention system.The public defender's office has tried to fill the gap, filing public civil actions on behalf of youths in each of the five detention centers, but judges have questioned their standing to bring such actions.In addition to taking on a stronger monitoring role of its own, the state prosecutor's office should intervene in these public civil actions to resolve any question of standing and allow them to be heard on their merits.

Weak Oversight by the Juvenile Court

The branch of the juvenile court that deals with juvenile offenses, the Segunda Vara da Infncia e da Juventude, is the authority responsible for judicial oversight of juvenile detention centers.Judge Vianna told us officials from the court enter each of the state's juvenile detention centers on a monthly basis and submit reports of each inspection to him.He showed us two recent reports on CAI-Baixada.The bulk of each report consisted of statistical information such as the number of youths in detention and the number and type of professional staff.Each report had a section setting forth current problems at the center.The later of the two we saw noted, for example, that the center had a shortage of laundry detergent and that staff had warned that there was a risk of escape attempts by youths.[139]

Neither report had a section on violations by guards, although Judge Vianna assured us that his office investigates the possibility of guard abuse.Later in our interview, however, he dismissed out of hand the possibility of beatings by guards in all but the most isolated of cases.The idea was "fantasy," he told us, insisting that systematic abuses "do not exist."[140]

Our interview with the juvenile court office responsible for the inspections explained the lack of information on abuses in the reports we saw.Two teams conduct visits every other month, not every month, we learned from a court commissioner."One team looks at the physical installations, and the other looks more at the compliance with the socio-educational measures and activities," the commissioner told Human Rights Watch.When we asked whether a specific team investigated cases of abuse, the commissioner replied, "No," but went on to tell us that either team could look into reports of abuse.The commissioner told us that the teams do not look into the possibility of abuse unless they have received a specific complaint.[141]

We asked state prosecutors whether court officials forward complaints of abuse uncovered in their inspections."An allegation of an abuse, a guard's punishment that got out of hand-this does not usually come to us from the commissioner.Very rarely.It usually comes through parents, organizations, or even the youths themselves," prosecutors told us.[142]

Other detention center officials reported that juvenile court officials inspected their centers.Marinete Laureano, director of Santos Dumont, told Human Rights Watch that court officials regularly inspect her center; she said that they talked with youths and toured the grounds and housing units.[143]But a former guard at another detention center took issue with this description of inspections by juvenile court officers."Sure, they come," he said."They sit and have a cup of coffee with the director, and then they go off and write their report."[144]

Even if juvenile court officials made rigorous periodic inspections that included confidential interview with youths, it is unlikely that youths would report beatings and other abuses to representatives of the authority responsible for sentencing them to detention.Rigorous judicial inspections are an important element in monitoring juvenile detention facilities, but they cannot be the only such mechanism.

The State Public Defender's Office

Public defenders visit nearly all juvenile detention centers on a weekly basis.[145]There is no other autonomous government entity that is present with such frequency in the state's juvenile detention system.As a result, public defenders' knowledge of the system is unparalleled, and they enjoy a high degree of trust from detained youths.

A chronic staffing shortage inhibits the office's work.There are currently so few public defenders that approximately twenty of Rio de Janeiro's judicial districts lack a public defender.[146]In practice, this has meant that outside the city of Rio de Janeiro some youths are tried and sentenced without legal counsel.[147]Within the metropolitan area as well as in the interior of the state, public defenders are usually not able to assist accused youths when they are held and questioned at police stations even though in theory a lawyer should be available to youths at every step of the legal process after they are apprehended.In fact, it is not uncommon for no defense counsel to be present at an accused youth's first meeting with public prosecutors."It would be better to have a defender right from the DPCA [Police Precinct for the Protection of the Child and Adolescent] also so as to establish a relationship," Marcia Castro, lawyer at the Bento Rubio Foundation told us."The adolescents have to have confidence in you.If not, they will not tell you everything.I believe that having this [presence of a defender from the start] would change many things."[148]

The State Council on the Defense of the Child and Adolescent

In September 2004, the Commission for the Monitoring of the Juvenile Justice System of the State Council for the Defense of the Child and the Adolescent, headed at the time by lawyer Carlos Nicodemus of the local human rights organization Projeto Legal (Legal Project), conducted an inspection of Padre Severino.The commission's findings included allegations of youth mistreatment by guards, leading the State Secretariat for Childhood and Youth to instruct DEGASE to remove the director of Padre Severino and several guards in October 2004.[149]At the this writing, however, no one implicated by the September 2004 report has been charged criminally.Moreover, one of the guards implicated in the abuses had been facing prosecution for torture since 2002.[150]

The State Council for the Defense of the Child and the Adolescent, which includes members of civil society as well as representatives of government agencies, has the potential to promote accountability and reform within DEGASE.Its counselors have guaranteed access to DEGASE's centers and may perform inspections at will.Its Commission for the Monitoring of the Juvenile Justice System was formed precisely to be an oversight mechanism.The results of its September 2004 inspection served as an important tool for accountability.Nevertheless, the council lacks enforcement powers; it must rely on the state secretariat or the public prosecutor's office to act on its recommendations.

The Barriers to Independent Monitoring by Civil Society

It is often difficult for members of civil society to have access to juvenile detention centers and obtain other information about them."The state wants to treat the penitentiary system and the juvenile detention system alike as a black box," Anderson Sanchez, a representative of the Penitentiary and Socio-Educational System Employees' Union, commented to Human Rights Watch, "and we have to fight against that."[151]

These barriers begin with restrictions on parental visits, which are usually permitted once every week.Visits take place under tightly controlled conditions, many of which have a valid security rationale.[152]Among the rules parents and youths must observe, however, is one that forbids youths from lifting their shirts during a visit.It is difficult to imagine the security rationale for this rule, particularly because visitors have already undergone a full strip search before entering the facility.Silvia R., a mother of a youth recently detained in Padre Severino, was convinced the rule was used to hide evidence of physical abuse."It's so we cannot see any marks that could be there [on their bodies]," she said.[153]

Parents also criticized the limitation of one parental visit per week.While the primary purpose of these visits is not to serve a monitoring function, parents suggested that more frequent visits could be both an additional check on abuses and also reinforcement for the rehabilitative message that the detention system would ideally provide.Mnica Suzana, a co-coordinator of Moleque, a movement of mothers of detained youths, commented:

Right when our children make a mistake and need us the most, right then we can barely be near them anymore.The state needs to let any mother's movement be its ally.We [mothers] do not want war.We want to work together to recover those kids.They keep us away so they can do those absurd things because they know that if we were beside them, we would keep a lookout.[154]

DEGASE no longer has any formal relationship with any mothers' association, although for a time in 2002 another mothers' group made presentations to youths in detention.Even during that time, said Rute Sales, the other co-coordinator of Moleque, "When we [mothers] entered, we were always viewed very badly."[155]In a subsequent conversation with Human Rights Watch, she added, "Mothers are the ones with the most legitimate desire to help in the system, but even so their participation is discouraged."[156]

Human Rights Watch entered all five juvenile detention centers in July and August 2003 with judicial authorization.The State Secretariat for Childhood and Youth, the secretariat to which DEGASE now reports, authorized our return inspection in May 2005.Nevertheless, DEGASE officials barred us from entering its facilities on May 24, 2005, after we had visited three centers-Joo Luiz Alves, Santos Dumont, and Santo Expedito.Human Rights Watch researchers met with DEGASE's chief of staff that afternoon and showed him their authorization, but he refused to accept it.The chief of staff called them at the end of the day, claiming that that the State Secretary for Childhood and Youth had revoked the authorization of entry.[157]

When we met the next day with Jos Maurcio Gonalves Costa, chief of staff at the secretariat, he told us that the DEGASE chief of staff had misrepresented his conversation with the secretariat.Hearing of the DEGASE official's claim that the secretary had revoked our authorization, he responded, "That's a lie."[158]

We also sought authorization from Judge Vianna for entry into the remaining facilities. He initially refused our request, saying, "You went to the secretariat when you should have come to me first, and now I won't permit you to enter."Later in our conversation, he told us that he would have to send our request to both DEGASE and the state prosecutor's office."I cannot authorize anyone's entry against DEGASE's will.They also have to approve it," he explained.When we expressed skepticism that any human rights group could meet this standard for entry into juvenile detention centers, he replied, "I have never seen DEGASE refuse entry to anyone who comes in with an open spirit of collaboration, but if you go in to do a report against someone, against the state, then it gets difficult."[159]

The state prosecutor's office replied that it saw "no problem" with Human Rights Watch's request for entry.[160]At this writing, Judge Vianna has not acted on the request.

In contrast to Rio de Janeiro, the state of So Paulo now gives a mother's association (Associao de Mes e Amigos de Crianas e Adolescentes em Risco, AMAR) and four other groups from civil society free access-not limited to previously scheduled workshops and presentations-to all its juvenile detention centers, an important advance for the state's troubled juvenile detention system.[161]The state of Par guarantees representatives of nongovernmental Centers for the Defense of Children and Adolescents access to juvenile detention facilities; the Par state constitution provides for such access to "each and every legally constituted entity connected to the defense of the child and the adolescent."[162]Internationally, many nongovernmental organizations, including Human Rights Watch, Amnesty International, and local groups, conduct independent monitoring in detention centers.The International Committee of the Red Cross carries out a similar function with respect to detention conditions of prisoners of war.