São Paulo, September 26, 2017

Edison Lobão
Senator, President of Constitution, Justice and Citizenship Committee of the Federal Senate of Brazil

Antonio Anastasia
Senator, Vice president of Constitution, Justice and Citizenship Committee of the Federal Senate of Brazil

Ricardo Ferraço
Senator, Rapporteur of Constitution, Justice and Citizenship Committee on PEC 33/2012

 

Dear Edison Lobão, Antonio Anastasia and Ricardo Ferraço,

I am writing to share Human Rights Watch’s serious concerns regarding the proposed constitutional amendment that would allow some children age 16 and above who are in conflict with the law to be tried and punished as adults. The amendment would violate Brazil’s obligations under international law and undermine rather than strengthen the country’s efforts to reduce crime.

Human Rights Watch is an international nongovernmental organization dedicated to protecting the human rights of people around the world. We work in over 90 countries and have staff based in 59 different locations around the world, including São Paulo, and work with governments and civil society to uphold human rights and the rule of law.  

The proposed amendment, PEC 33/2012, was modified by the rapporteur in the Constitution, Justice and Citizenship Committee of the Senate, whose revised amendment is slated for a vote in coming days.

The amendment would modify article 228 of the Constitution, which currently states that “[m]inors under eighteen years of age may not be held criminally liable and shall be subject to the rules of special legislation.”

Under the amendment, prosecutors would petition judges to allow children older than 16 to be tried and punished as adults on a case-by-case basis. The report that provides the rationale for the amendment emphasizes that such trials and punishments should be used for “specific and extraordinary” cases. But the bill opens the door to the wide application to youth of procedures and punishment designed and intended only for adults.

Even after the rapporteur restricted the amendment´s scope, the bill would allow trying youth as adults for a variety of crimes, including homicide, rape, kidnapping, very serious bodily injury, and repeat offenses of armed robbery.

In the state of São Paulo, 38 percent of children confined in the first six months of 2017 were in detention for armed robbery, while only about 1 percent were detained for homicide or attempted homicide, according to official data provided to Human Rights Watch. São Paulo houses about 40 percent of all children in confinement in Brazil.

The amendment also suspends the statute of limitations on the crime until the end of the proceedings to determine whether the youth should be tried as an adult or not, irrespective of how long that process takes. Such suspension of the statute of limitations constitutes harsher treatment of children than that afforded to adults, who do not face a similar suspension.

Many of those who support the amendment do so out of a legitimate desire to promote accountability and reduce crime in Brazil. Yet the belief that the amendment would advance these goals is based on several premises that are unfounded. One is that Brazilian children are now able to break the law with impunity, when in fact they are held accountable through the existing juvenile “socioeducational” system, which includes the possibility of deprivation of liberty—for serious offenses. Another is the claim that trying and punishing children as adults will deter them from engaging in crime, when in fact available evidence indicates that this practice is likely to have precisely the opposite effect, increasing recidivism among child offenders.  A third is the claim that the amendment 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. 

We will consider each of these claims in turn. But first it is important to highlight the fact that, until now, Brazil has been at the forefront of the world trend to provide broader legal protections to children. It was the first country in Latin America to incorporate the Convention on the Rights of the Child into its national legislation, via the Statute of the Child and Adolescent (ECA, in Portuguese) in 1990, which made it a model for other countries in the region.[1] With the approval of PEC 33/2012, Brazil would abandon this position of leadership and betray its commitments under international law, while undermining both the rights of its children and, ultimately, the safety of its citizens. We urge you to reject the proposed amendment.

Are Brazilian adolescents currently able to commit crimes with impunity?

Proponents of the amendment argue that it is needed to ensure that older children who break the law are held accountable for their actions. However, juvenile offenders are already being held responsible in Brazil through the country’s juvenile “socio-educational” system, in which they can be held in confinement for up to three years.[2] This system seeks to promote accountability for child offenders based on the rules and proceedings established by the Statute of the Child and Adolescent, which are designed to be consistent with the offenders’ mental development and conducive to their rehabilitation as law-abiding citizens.

To the extent that there is impunity in cases involving children, it reflects a broader absence of accountability for criminal activity in Brazil today. Levels of impunity for all crimes are high. For example, less than 8 percent of all homicides in the country are solved, according to the most recent official estimates.[3] There is no reason to believe that trying children as adults will change these results.

Would trying and punishing children as adults reduce crime in Brazil? 

Proponents of the amendment claim that the threat of being tried and punished as an adult will deter children from breaking the law and thereby help reduce crime rates in Brazil. Yet they have provided no evidence to substantiate this claim. Instead, some 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 conducted a systematic review of published scientific evidence concerning the effectiveness of laws and policies that allow juveniles to be prosecuted as adults. The task force 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.”[4]

Similarly, a 2010 report by the US Department of Justice examined six large-scale studies of the effects of prosecuting minors as adults and found that—according to all six—rates of recidivism were higher among juveniles who were tried in adult courts than among those tried in the juvenile system.[5] In the case of violent crimes, one study found that the recidivism rate was 100 percent greater for those tried in adult courts. The report concluded that processing minors through the regular justice system “does not engender community protection” but instead “substantially increases recidivism.”  

The studies identified the reduced opportunities of rehabilitation and family support for youth incarcerated in adult prisons as one of the main factors that can contribute to this higher recidivism rate.

This too is a factor relevant in Brazil, where prisons offer very few activities conducive to rehabilitation. Only 11 percent of prisoners are enrolled in educational courses in prison (despite the fact that the majority of the prison population has not finished primary school).[6] 

In contrast, educators, social workers and other professionals at socio-educational centers must develop an individualized plan of rehabilitation of each confined youth, with the participation of their families. Socio-educational centers must offer a second chance to finish school for children who dropped out due to poverty, family problems, or other reasons, and the opportunity to learn a trade through vocational courses.

It is true that some socio-educational centers do not live up to those standards. A measure that can truly reduce recidivism and crime would be to make those units comply with the law, so that youth have a true opportunity to turn their lives around. Instead, the amendment would remove youth out of “socio-educational” centers and place them in a yet unknown place of confinement, under undefined detention conditions and rules. 

PEC 33/2012 does not say where youth would be held pending the decision whether they would be charged as adults; and it does not say where they would be held pending trial if they are eventually so charged. The report that accompanies the bill explains that youth tried as adults “would no longer deserve the legal protection afforded by ECA,” the Statute of the Child and Adolescent.

If convicted as adults, youth must be held “in a separate facility from people older than 18,” says the amendment, but it does not specify which. It also does not say what kind of educational and other activities should be provided to them, if any. The amendment does not say what will happen to them when they turn 18.

In sum, the amendment proposes a third alternative to the current detention system —either in “socio-educational” units for children geared toward rehabilitation or in prisons for adults—without any definition of what legal principles, rules, or conditions would apply. 

Would the amendment bring Brazil in line with practices in the rest of the world?

Proponents of the amendment argue that the change in Brazil´s Constitution would align the country with practices in other countries. Yet, in fact, only a small number of nations allow juveniles to be tried as adults.[7] In South America, only Surinam, Bolivia, Guyana, and Paraguay have those laws. In the United States, many states have recently moved to limit the practice of treating juvenile offenders the same as adults by passing laws expanding the jurisdiction of juvenile courts and increasing due process protections for children.[8]

A more important consideration, however, is the fact that the amendment would violate international norms that have been enshrined in human rights treaties ratified by Brazil. These include the Convention on the Rights of the Child, which states that treatment of child offenders must take into account “the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”[9]  The Committee on the Rights of the Child, the UN body that monitors implementation of the convention by its states parties, has stated that “every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice,” and called on states that try people under the age of 18 as adults to change their laws to end this practice.[10]

Similarly, the Human Rights Committee and the Committee against Torture, the UN bodies that monitor the implementation of the International Covenant on Civil and Political Rights (ICCPR) and of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, respectively, and the Working Group on Arbitrary Detention, another UN body that investigates cases of arbitrary arrest and detention, have also called on states never to try children as adults and to reform legislation that permits that practice.[11] The Inter-American Court of Human Rights has also said that people under 18 years of age must be subject “only to specific jurisdictional bodies distinct from those for adults,”[12] and the Inter-American Commission on Human Rights concluded that “under international law, only those over 18 years of age can be held criminally responsible as adults.”[13]

In sum, children who break the law can and should be held accountable, but in an individualized manner that promotes their rehabilitation and is consistent with international human rights norms. Trying and punishing them as adults is not the answer to the public security problems facing Brazil.  

Based on available evidence, this practice will only increase recidivism and undermine efforts to reduce crime throughout the country.

We respectfully urge you, therefore, to reject Draft Law PEC 33/2012. Thank you for your attention to this very important matter. 

 

Sincerely,

Maria Laura Canineu

Human Rights Watch Brazil Director

 

***

CC:

Acir Gurgacz, senator

Aécio Neves, senator

Ana Amélia, senator

Ângela Portela, senator

Antonio Carlos Valadares, senator

Armando Monteiro, senator

Benedito de Lira, senator

Cássio Cunha Lima, senator

Cidinho Santos, senator

Davi Alcolumbre, senator

Eduardo Amorim, senator

Eduardo Braga, senator

Eduardo Lopes, senator

Fátima Bezerra, senator

Fernando Collor, senator

Flexa Ribeiro, senator

Garibaldi Alves Filho, senator

Gleisi Hoffmann, senator

Hélio José, senator

Humberto Costa, senator

Ivo Cassol, senator

Jader Barbalho, senator

João Capiberibe, senator

Jorge Viana, senator

José Maranhão, senator

José Pimentel, senator

José Serra, senator

Lasier Martins, senator

Lídice da Mata, senator

Lindbergh Farias, senator

Magno Malta, senator

Maria do Carmo Alves, senator

Marta Suplicy, senator

Paulo Paim, senator

Paulo Rocha, senator

Randolfe Rodrigues, senator

Regina Sousa, senator

Renan Calheiros, senator

Roberto Requião, senator

Romero Jucá, senator

Ronaldo Caiado, senator

Rose de Freitas, senator

Sérgio Petecão, senator

Simone Tebet, senator

Valdir Raupp, senator 

Vanessa Grazziotin, senator

Vicentinho Alves, senator

Waldemir Moka, senator

Wilder Morais, senator

 

[1] UNICEF, “Comunicado do Diretor Regional do UNICEF para a América Latina e o Caribe, Bernt Aasen,” http://www.unicef.org/lac/media_29273.htm (accessed May 11, 2015).

[2] Statute of the Child and Adolescent, art. 121.

[3] Data cited in Julio Jacobo Waiselfisz, “Mapa da Violência 2014,” p. 136, http://www.mapadaviolencia.org.br/pdf2014/Mapa2014_AtualizacaoHomicidios.pdf (accessed June 2, 2015).

[4] Robert Hahn et al., Department of Health and Human Services, Centers for Disease Control and Prevention, “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services,” November 30, 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm (accessed May 11, 2015).

[5] Richard Redding, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, “Juvenile Transfer Laws: An Effective Deterrent to Delinquency?,” June 2010, https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (accessed May 11, 2015).

[6] Data from December 2o14, the latest available, from the National Prison Department (Depen) at Brazil´s Ministry of Justice, http://www.justica.gov.br/seus-direitos/politica-penal/documentos/infopen_dez14.pdf (accessed September 18, 2017), pages 47 and 61.

[7] Gisela Santos de Alencar Hathaway, “O Brasil no regime internacional dos direitos humanos de crianças, adolescentes e jovens: Comparação de Parâmetros de Justiça Juvenil,” Consultoria Legislativa da Câmara dos Deputados, April 2015. See also Connie de la Vega, Amanda Solter, Soo-Ryun Kwon, and Dana Marie Isaac, Cruel and Unusual: U.S. Sentencing Practices in a Global Context (San Francisco: University of San Francisco School of Law, Center for Law and Global Justice, 2014).

[8] National Conference of State Legislatures, “Trends in Juvenile Justice State Legislation 2001-2011,” June 2012 http://www.ncsl.org/documents/cj/TrendsInJuvenileJustice.pdf (accessed on May 30, 2015). For updated information see the National Conference of State Legislatures´ website at http://www.ncsl.org/research/civil-and-criminal-justice/2014-juvenile-justice-state-legislation.aspx.

[9] Convention on the Rights of the Child (CRC), adopted November 20, 1989. G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No.49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 40(1).

[10] UN Committee on the Rights of the Child, General Comment 10, para. 38.

[11] See, for example, Human Rights Committee, Concluding Observations: Belgium, U.N. Doc. CCPR/C/BEL/CO/5 (November 15, 2010), para. 23 (“The State party should review its legislation with a view to preventing minors between the ages of 16 and002018 from being tried as adults.”); Committee against Torture, Concluding Observations: Ethiopia, U.N. Doc. CAT/C/ETH/CO/1 (January 20, 2011), para. 27 (recommending that the state “classify persons above 15 and under 18 years of age as “young persons” who are subject to the lighter penalties in articles 157-168 of the Criminal Code and may not be kept in custody with adult criminals”); Committee against Torture, Concluding Observations: Luxembourg, U.N. Doc. CAT/C/LUX/CO/5 (16 July 2007), para. 10 (calling on state to “do everything possible to ensure that minors are never tried as adults”); Human Rights Council, Report of the Working Group on Arbitrary Detention: Mission to Malta (19 to 23 January 2009), U.N. Doc. A/HRC/13/30/Add.2 (January 18, 2010), para. 31 (expressing concern at “the exclusion of children between 16 and 18 years of age from the juvenile justice system”).

[12] Inter-American Court of Human Rights, Mendoza Case, Judgement of May 14, 2013. Ct. H.R. Ser. C, No. 260 (2013), para. 147.

[13] Inter-American Commission Rapporteurship on the Rights of the Child, Juvenile Justice and Human Rights in the Americas (2011), para. 39.