(Brasilia, June 9, 2015) – The Brazilian Congress should vote down a proposed Constitutional amendment that would allow 16 and 17-year-olds to be tried and punished as adults, Human Rights Watch said in a letter today to congressional leaders. The amendment would violate the country’s obligations under international law and undermine its efforts to reduce crime, Human Rights Watch said.
“Until now, Brazil has been at the forefront of the world trend to provide broader legal protections to children,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “But this amendment would violate the rights of Brazil’s children and, ultimately, threaten the safety of its citizens.”
The proposed amendment would modify article 228 of the Constitution, which currently states that “[m]inors under 18 years of age may not be held criminally liable and shall be subject to the rules of special legislation.” By replacing 18 with 16, the amendment would result in trials for 16 and 17-year-olds in ordinary courts, rather than in the juvenile “socio-educational” system. The amendment would also result in juveniles being incarcerated with adults.
The amendment would violate international legal standards that have been enshrined in human rights treaties ratified by Brazil, in particular the Convention on the Rights of the Child, but also the American Convention on Human Rights, and the International Covenant on Civil and Political Rights. Several UN human rights bodies and the Inter-American Court of Human Rights have repeatedly stated that children under 18 should not be tried as adults, but rather in juvenile justice systems designed to protect children’s rights. International law also prohibits incarcerating children with adults.
A special legislative commission in the Chamber of Deputies is currently reviewing the amendment. The commission’s rapporteur has announced that he will publish his report about the proposal on June 10, 2015. The amendment’s approval would require the support of at least three fifths of both the Chamber of Deputies and the Senate, each of which would be required to hold two votes.
Proponents of the amendment claim that it would bring Brazil’s justice system into line with the way other countries handle juvenile offenders, when in fact most nations have set the age of criminal majority at 18 or older.
Some supporters of the amendment have pointed to the United States as a model, where similar arguments have been used for decades to justify trying juveniles as adults. The available evidence on this practice in the United States, however, does not support their position. In 2007, a task force made up of independent experts and government officials in the United States found that this practice “typically increases rather than decreases rates of violence” among the juvenile offenders and concluded that it is “counterproductive as a strategy for preventing or reducing juvenile violence and enhancing public safety.”
Similarly, a 2010 report by the US Justice Department concluded that processing children under 18 years of age through the regular justice system “does not engender community protection” but instead “substantially increases recidivism.”
“Supporters of the amendment say it will reduce crime, but the available evidence suggests it will have precisely the opposite effect,” Canineu said. “The United States is one of the few countries that still tries adolescents as adults, and studies there show that these children are more likely to commit further crimes upon release than those whose cases are handled by the juvenile justice system.”