Just under 400 youths were held in juvenile detention centers in the five states we visited in April 2002. At the time of our visit, the state of Rondônia had the lowest number of youths in detention, with a total of twenty-four in the two facilities in its capital, Porto Velho. Amazônas had the largest number of youths in detention, with a total of 114. Maranhão had sixty-seven youths in detention, Amapá held seventy-seven, and Pará had a total of eighty-eight youths.4 Girls accounted for less than 12 percent of the total number of youths detained in these five states. In April 2002, there were six girls in detention in Amapá, twenty-four in Amazônas, three in one of Maranhão's two detention centers for girls, eight in Pará, and four in Rondônia.5
Beatings at the hands of police during and after arrest are common. Such abuses often occur at police stations, where Brazilian law allows children to be held for up to five days while they await transfer to a juvenile detention facility. In the state of Amazônas, for example, nearly every boy and girl we spoke with told us that he or she had been hit by police officers while in a local police station. In rural areas, where police routinely violate the five-day limit on detention in police lockups, children are at greater risk of abuse by police.
Brazilian law guarantees youths the right to legal representation, including free legal assistance for those in need, meaning that in theory, a child could ask his or her attorney for assistance in making a complaint. In practice, however, few of the youths we interviewed had actually spoken to their legal counsel. Nearly all were represented by the public defender's office.
The Statute of the Child and Adolescent
Youths between the ages of twelve and seventeen, whom the statute terms "adolescents," are criminally responsible under Brazil's juvenile justice law. The provisions relating to detention provide that youths may be held in juvenile detention centers up to the age of twenty-one. Delinquent children under the age of twelve are not criminally responsible; instead, they are treated as children in need of protection.8
There is some popular support in Brazil, as in other countries in the region, for reducing the age at which children can be charged with a crime. "There is a very strong tendency toward lowering the age of criminal responsibility," said Francisco Lemos, a staff attorney with the nongovernmental Center for the Defense of Children's and Adolescents' Rights (Centro de Defesa dos Direitos da Criança e do Adolescente) in São Luís, capital of the state of Maranhão. Joisiane Gamba, an attorney with the Maranhão Society for Human Rights (Sociedade Maranhense de Direitos Humanos), a nongovernmental organization based in São Luís, added, "These efforts intensified after September 11," the date of the 2001 terrorist attacks in the United States.9
The movement toward lowering the age of criminal responsibility is due in part to a inaccurate perception that violent youth crime is prevalent. As Lemos notes, "Most crimes are committed by adults. Ten percent of all illegal acts are committed by adolescents, and these acts are often crimes against property."10
Once arrested, a youth should be released to a parent or a responsible adult; deprivation of liberty should be limited to serious cases in which the youth's safety or the public order require it.11 If they are detained, youths may be held in police lockups for no more than five days, after which they must be released or transferred to a juvenile detention center.12 But the five-day limitation may not provide youths with the protection they need-police stations are subject to less independent oversight than juvenile detention centers, and both youths and adults routinely report that they are subjected to beatings and torture at the hands of police during and after arrest.13 "The police are very aggressive," said Tobias V., held in the Espaço Recomeço detention center in Pará.14 In Amazônas, nearly every boy and girl we spoke with told us that he or she had been hit by police officers while they were held in local police stations. "There's a lot of mistreatment there, in the police lockups," Fernando A. reported. "The police beat me, and I had to go to the hospital," Elden D. said. When we asked him why the police beat him, he replied, "Because I was charged with homicide." Maurício O. told Human Rights Watch, "They beat you to make you talk."15 Although the girls we interviewed did not describe incidents of sexual harassment, the Human Rights Commission of the Chamber of Deputies (Comissão de Direitos Humanos da Câmara dos Diputados) reported that during its March 2001 inspection, two of the three girls in the girls' detention center in Pará said that police officers routinely solicited sex from the girls held in police lockups. "The two cases give notice of incidents of sexual harassment in which unscrupulous police officers promised to free girls if they agreed to render sexual favors," the commission concluded.16
For the most part, the youths we interviewed told us that they were held in local police stations for five days or less. However, youths from rural areas reported that they were held in police custody for longer than the five-day maximum specified in the Statute of the Child and Adolescent. For example, Maurício B., arrested in the interior of Amazônas state when he was fifteen, told us that he spent three months in a police lockup before he was transferred to the pretrial detention facility in Manaus.17
Youths may be held in pretrial detention "for a maximum period of forty-five days";18 the statute further provides that if an adolescent is placed in pretrial detention, "the maximum and nonextendable period for conclusion of the [judicial] proceedings shall be forty-five days."19 The forty-five-day period appears to include pretrial detention time in police lockups: The term for detention (internação) is used elsewhere in the statute to refer to time in police custody before transfer to a pretrial detention center.20 Accordingly, a youth held for five days in a local police station before transfer to a pretrial detention center should only be held for another forty days. A public defender in Rio de Janeiro confirmed our interpretation of this provision, telling us that his office viewed the forty-five-day period as beginning at the moment of arrest.21 In practice, however, detention officials regard the forty-five-day period as commencing with the day of arrival at the pretrial detention facility.
With this exception, detention authorities and judges appeared to observe the limit on pretrial detention scrupulously. We heard of no other youths who had been held for longer than forty-five days in a pretrial detention center except in the state of Amapá. Following the lead of a São Paulo court, the Amapá juvenile courts have authorized pretrial detention for an additional forty-five days when they find youths to be dangerous and violent.22 Such extensions appear to violate the statute's provisions for the maximum length of pretrial detention and the "maximum and nonextendable" period for judicial proceedings.
Judges do not always apply the law with that understanding, however. "The relationship with the judiciary is difficult," said one official in the Amapá Foundation of the Child and the Adolescent. "Detention is supposed to be the last resort. But the judges don't understand it that way. . . . There's a lot of confusion with regard to the Statute of the Child and the Adolescent throughout the state."26
Detention may last no more than three years and may not extend beyond the age of twenty-one.27 Regardless of the length of the sentence, the judge must reevaluate the decision to detain a child at least every six months. As part of this review process, social workers with the detention centers must file semiannual reports on each youth in detention. These reports may recommend early release for a child, but "the judge doesn't always respond quickly," said Loide Gomes da Silva Ferreira, a social worker with the Center for the Defense of Children's and Adolescent's Rights in São Luís.28
In practice, the less restrictive measure of semiliberty is often employed once a youth has spent a period of time in detention. "Semiliberty is generally used as a progression. An adolescent doesn't go there directly. Instead, an adolescent will transition from detention to semiliberty," said Francisco Lemos.29 In Amapá, however, we spoke to several youths, including those charged with serious acts, who had been sentenced to less restrictive measures at the outset. For example, Jacó G., a fifteen-year-old, was found guilty of homicide and placed directly in the semiliberty unit.30
Most states in the region have endorsed municipal, rather than state-level, administration of the "open" socioeducational measures, including probation. However, many rural areas lack the infrastructure and personnel to administer them. "There are some that could be completing another measure, but the judge sends them here," said Maria Luiza Jarolim, a psychologist in the Espaço Recomeço detention center in Pará. Five of the youths in detention in the facility, including the two fifteen-year-olds, were being held because the court had found them to be youths at risk. Jarolim told us that judges had sentenced the youths to detention because there was no administrative capacity for less-restrictive sentencing measures in rural areas of the state.31
In addition, "judges in the interior do not have an understanding of the Statute of the Child and Adolescent," said Francisco Lemos.32 We heard similar comments from those who worked with youths in other states. "In practice, they still follow the old Minors' Code," said Márcio da Silva Cruz, an attorney with Cedeca/Emaús in Belém.33
As a result of these factors, Lemos observes that many children who should receive less-restrictive measure are instead placed in detention.34
· Gilson R., a detainee in the Espaço Recomeço detention center, who was represented by the public defender, said, "He never talked with me. He came to EREC once, but he just walked by. He didn't come to see me."36 (The Espaço Recomeço detention center is commonly referred to by the acronym EREC).
Sir Nigel Rodley, then the U.N. special rapporteur for torture, observed in 2001 that "in many states public defenders . . . are paid so poorly in comparison with prosecutors that their level of motivation, commitment and influence are severely wanting, as is their training and experience."41
Juvenile Detention Facilities
Centro Educacional Aninga
Amazônas Centro Sócio-Educativo Assistente Social Dagmar Feitoza
Centro Sócio-Educativo Marise Mendes
Centro Sócio-Educativo Senador Raimundo Parente
Maranhão Centro de Juventude Esperança
Centro de Internação Provisória
Pará Centro de Internação Espaço Recomeço (EREC)
Centro de Internação de Adolescentes Masculino (CIAM)
Centro de Internação de Adolescentes Feminino (CIAF)
Rondônia Casa do Adolescente
Casa da Adolescente
With the exception of Maranhão, which has pretrial detention centers in São Luís and Imperatriz, juvenile detention facilities in every state are located only in the metropolitan area of the capital. This imposes a hardship on many detainees from rural areas. Commenting on the situation in Pará, the Chamber of Deputies' Commission on Human Rights has observed:
The commission's observation applies to families from rural areas in every state we visited. The obstacles to visitation are particularly acute for youths in Amazônas, where the enormous expanse of territory and the absence of roads in much of the state require many families to travel by boat for two to three days or more each way to reach the capital.
The structure of state juvenile systems varies, but nearly all administer juvenile detention centers through agencies that also oversee programs for youths in need of protection. Some states place these administrative functions within their secretariats of social welfare, often in government agencies that are known as "foundations." For example, in Maranhão the Foundation of the Child and the Adolescent (Fundação da Criança e do Adolescente) is a branch of the Social Development Directorate (Gerência de Desenvolvimento Social). In Amazônas, the Department of the Child and the Adolescent (Departamento da Criança e do Adolescente) is part of the Secretariat of State for Employment and Social Assistance (Secretaria do Estado de Trabalho e Assistência Social).
The office of the attorney general, known as the Ministério Público, may inspect public and private entities and programs for children, including juvenile detention centers.44 The statute gives the representative of the Ministério Público "free access to every locality in which a child or adolescent is to be found."45
Acting upon a request from the attorney general's office or on his or her own initiative, a judge may hold a hearing to examine juvenile detention conditions. The judge may temporarily remove the director of a center pending the hearing. Under the statute, the judge may also order the "definitive removal" of the director and may impose a fine or admonition on the director.46 The statute does not specify other remedial measures that the judge may order.47 By contrast, the adult penal law specifically authorizes the judge to "close, in all or in part, any penal establishment that is functioning under inadequate conditions or infringing the provisions of [the national penal law]."48
State and federal bodies, including official human rights commissions, may also monitor juvenile detention conditions. At the federal level, the Human Rights Commission of the Chamber of Deputies has inspected juvenile detention facilities in at least five states-Minas Gerais, Pará, Rio Grande do Sul, São Paulo, and Sergipe-issuing a book-length report of its findings in 2001.49 At the state and local levels, human rights councils often exist and, in theory, are able to inspect juvenile and adult detention facilities. In Rondônia, for example, members of the State Council of Human Rights (Conselho Estadual de Direitos Humanos) regularly enter the juvenile detention centers in Porto Velho.
The primary independent organizations involved in monitoring juvenile detention centers are the Centers for the Defense of the Child and the Adolescent, nongovernmental organizations that operate in many states. There are centers in Maranhão and Pará, two of the five states visited by Human Rights Watch. Only Pará guarantees representatives of these centers access to juvenile detention facilities; the Pará state constitution provides for such access to "each and every legally constituted entity connected to the defense of the child and the adolescent."50
The Inter-American Commission on Human Rights, a body of the Organization of American States that promotes and protects human rights in the region, accepts complaints regarding conditions of detention and other human rights abuses. In addition to its adjudicative function, the commission makes occasional visits to countries to obtain firsthand information on alleged abuses. It has conducted one site visit to Brazil, which took place in December 1995. It published its report of that visit, including a chapter on children, in 1997.51
Finally, as a state party to the major international human rights treaties, Brazil must submit periodic reports to the committees that monitor compliance with those treaties. These committees (known as "treaty bodies") include the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights; the Committee against Torture, which performs that function with regard to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; and the Committee on the Rights of the Child, the treaty body for the Convention on the Rights of the Child. Nongovernmental organizations frequently submit alternative reports to these treaty bodies after the government has submitted its periodic report.52 Brazil's first report to the Committee on the Rights of the Child was due in October 1992 and its second was due in October 1997. It has not yet submitted either. The committee asked Brazil to submit a consolidated report by February 2003, but Brazil did not do so.53
4 Human Rights Watch interviews with Raimundo Monteiro, director, Centro de Internação Espaço Recomeço, Ananideua, Pará, April 8, 2002; staff, Centro de Internação de Adolescentes Masculino, Ananideua, Pará, April 9, 2002; staff, Centro Juvenil Masculino, Ananideua, Pará, April 10, 2002; staff, Centro de Internação de Adolescentes Feminino, Ananideua, Pará, April 11, 2002; Angela Pompeu, manager, Centro Sócio-Educativo Masculino, Ananideua, Pará, April 12, 2002; Maria de Socorro Gatinho Ribeiro, director, General Program Department, Foundation of the Child and the Adolescent, Macapá, Amapá, April 15, 2002; Dione Maria Pereira Baquil, coordinator, Socio-Educative Area, Foundation of the Child and the Adolescent, São Luís, Maranhão, April 19, 2002; Paulo Alfonso Sampeio, director, Department of the Child and the Adolescent, Manaus, Amazônas, April 22, 2002; staff, Casa do Adolescente, Porto Velho, Rondônia, April 24, 2002; staff, Casa da Adolescente, Porto Velho, Rondônia, April 25, 2002.
8 Estatuto da Criança e do Adolescente, arts. 2, 105, 121. See also Munir Cury et al., coords., Estatuto da Criança e do Adolescente comentado: comentários jurídicos e sociais, 4th ed. (São Paulo: Malheiros Editores Ltda., 2002), pp. 14-15, 334-35.
9 Human Rights Watch interview with Francisco Lemos, staff attorney, Centro de Defesa dos Direitos da Criança e do Adolescente Padre Marcos Passerini, and Joisiane Gamba, attorney, Sociedade Maranhense de Direitos Humanos, São Luís, Maranhão, April 18, 2002.
11 "Comparecendo qualquer dos pais ou responsável, o adolescente será prontamente liberado pela autoridade policial, sob termo de compromisso e responsabilidade de sua apresentação ao representante do Ministério Público, no mesmo dia ou, sendo impossível, no primeiro dia útil imediato, exceto quando, pela gravidade do ato infracional e sua repercussão social, deva o adolescente permanecer sob internação para garantia de sua segurança pessoal ou manutenação da ordem pública." Estatuto da Criança e do Adolescente, art. 174.
12 "Sendo impossível a pronta transferência, o adolescente aguardará sua remoção em repartição policial, desde que em seção isolada dos adultos e com instalações apropriadas, não podendo ultrapassar o prazo máximo de cinco dias, sob pena de responsabilidade." Ibid., art. 185, para. 2.
13 See, for example, Human Rights Watch/Americas, Police Brutality in Urban Brazil (New York: Human Rights Watch, 1997), pp. 28-31; Human Rights Watch, Behind Bars in Brazil (New York: Human Rights Watch, 1998), pp. 38-44.
16 Câmara dos Deputados, Comissão de Direitos Humanos, IV Caravana Nacional de Direitos Humanos: uma amostra da situação dos adolescentes privados de libertade nas FEBEMs e congêneres: o sistema Febem e a produção do mal (Brasília: Câmara dos Deputados, Centro de Documentação e Informação, Coordenação de Publicações, 2001), p. 37.
22 See Auto No. 4257/2001, Vara da Infância e da Juventude da Comarca de Santana, November 29, 2001, citing Habeas Corpus No. RJTSP 133/259, Tribunal de Justiça de São Paulo, n.d., and Habeas Corpus No. 502/99, Tribunal de Justiça do Estado do Amapá, 1999.
23 Estatuto da Criança e do Adolescente, art. 112. For a brief description of these measures, see Mário Volpi, ed., O adolescente e o ato infracional, 4th ed. (São Paulo: Cortez Editora, 1997), pp. 23-44.
24 "A internação constitui medida privativa da libertade, sujeita aos princípios da brevidade, excepcionalidade e respeito à condição peculiar de pessoa em desenvolvimento." Estatuto da Criança e do Adolescente, art. 121.
28 Human Rights Watch interview with Loide Gomes da Silva Ferreira, social worker, Centro de Defesa dos Direitos da Criança e do Adolescente Padre Marcos Passerini, São Luís, Maranhão, April 18, 2002.
41 U.N. Economic and Social Council, Commission on Human Rights, 57th sess., agenda item 11(a), Civil and Political Rights, Including the Questions of Torture and Detention, Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights resolution 2000/43, Addendum: Visit to Brazil, para. 162.
42 "Essa circunstância - a concentração de unidades de internação existentes na capital - já evidencia um problema estrutural bastante grave, uma vez que adolescentes do interior do Pará que recebam medidas de privação de libertade devem ser encaminhados a Belém. Na maioria dos casos, isso implicará a ausência de visitações por parte de seus familiares, invariavelmente pobres e impossibilitados de arcar com os custos do deslocamento. Assim, muitos dos adolescentes internados não estarão apenas privados de sua libertade, estarão, também, sós." Comissão de Direitos Humanos, IV Caravana Nacional de Direitos Humanos, p. 25.
43 See U.N. Rules for the Protection of Juveniles Deprived of their Liberty, G.A. Res. 45/133 (1990), art. 72; Standard Minimum Rules for the Treatment of Prisoners, approved by U.N. ECOSOC Res. 663 C (XXIV) (1957) and Res. 2076 (LXII) (1977), art. 55. See also Committee on the Rights of the Child, 25th sess., State Violence Against Children, U.N. Doc. CRC/C/97 (September 22, 2000), in Office of the U.N. High Commissioner for Human Rights, Committee on the Rights of the Child: Reports of General Discussion Days (Geneva: Office of the U.N. High Commissioner on Human Rights, n.d.), para. 688, recommendation 26, p. 131; Penal Reform International, Making Standards Work (The Hague: Penal Reform International, 1995), pp. 161-65.
44 "Compete ao Ministério Público: . . . XI - inspecionar as entidades públicas e particulares de atendimento e os programas de que trate esta Lei, adotando de pronto as medidas administrativas ou judiciais necessárias à remoção de irregularidades porventura verificadas . . . ." Estatuto da Criança e do Adolescente, art. 201(XI).
50 "É garantida a toda e qualquer entidade ligada à defesa da criança e do adolescente, legalmente constituída, o livre acesso às instituições ou locais para onde os mesmos forem encaminhados pelos órgãos judiciários, de assistência social, de segurança pública, garantindo igualmente o livre acesso a dados, informações, inquéritos e processos a eles relativos." Constitution of the State of Pará, art. 297.
52 See, for example, Justiça Global et al., Alternative Report on Compliance by the State of Brazil with the Obligations Imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Geneva: Justiça Global, 2001), available at www.global.org.br/english/ alternative_report.htm, visited August 23, 2001.