VIOLENCE AGAINST MINORS
1. In the preceding chapters, the study of the subject of minors was introduced in the more general context of police violence and the death squads (in Chapter III), since it is precisely the children and teenagers who are the principal victims of that violence. Figures were also presented earlier, in the examination of socioeconomic rights, which indicate the conditions of poverty and deprivation in which a substantial percentage of Brazilian children are born and develop as infants. The present chapter will examine the legal commitments of Brazil in this respect; the subject of nonjudicial executions; the mistreatment of minors by the police; the situation in welfare and protection establishments; and their labor and sexual exploitation.
A. BRAZIL'S INTERNATIONAL OBLIGATIONS IN REGARD TO CHILDREN
2. Brazilian children are legally protected both in the domestic legislation and by the treaties to which Brazil is a party.(1) In addition to the rights inherent to every person that are recognized by the American Convention, that document also provides special protection by acknowledging that "Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society and the state" (Article 19).
3. The United Nations Convention on the Rights of the Child--which has been ratified by Brazil, and which the Commission uses as a frame of reference, provides that the States Parties shall have, inter alia, the obligation to respect and guarantee each child within their jurisdiction the rights set forth in the Convention, without distinction of race, color, sex, language, religion, political views, nationality, ethnic or social origin, property, disability, birth or any other status of the child, its parents or its legal guardians (Article 2).
4. It also establishes the obligation of the States Parties to guarantee the creation of institutions and services designed for their care (Article 18) and adoption of the legislative, administrative, social and educational measures to protect children from any form of physical or mental violence, bodily harm or abuse, negligent treatment, mistreatment or exploitation, including sexual abuse, so long as they remain in the care of the parents, legal guardians or other person responsible for their care (Article 19).(2)
B. THE RIGHTS OF THE CHILD AND ADOLESCENT IN THE DOMESTIC SPHERE
5. The broad campaign to mobilize public opinion that led to the constitutional reform of 1988 was aware of the serious problems faced by Brazilian children(3), and that concern was reflected in Article 227,which states that:
It is the duty of the family, of society and of the State to ensure, as an absolute priority, that children and adolescents have the right to life, to health, to food, to education, to leisure, to have a profession, to culture, to dignity, to respect, to liberty and to harmonious relations with family and community, as well as the right to be kept safe from any form of negligence, discrimination, exploitation, violence, cruelty and oppression... and that the State shall promote programs of comprehensive assistance to improve the health of children and adolescents.(4)
6. The Statute on Children and Adolescents (ECA Law 8,069/90)--one of the most advanced laws in terms of the protection it provides for minors--replaced the former and correctional Code of Minors and the equally repressive National Child Welfare Policy. Rather than an instrument for social control of a conduct, the new Statute embraces a special concept as a human being in viewing children and adolescents as "subjects of rights," thereby introducing innovations in the policy of promotion and defense of their rights in every dimension: physical (health and food);(5) intellectual (the right to education, professional training and protection in the workplace),(6) emotional, moral, spiritual and social (the right to liberty, to respect, to dignity, to harmonious family and community relationships).(7) It differentiates between the "child"--any person under the age of 12 years--and the "adolescent," a person between twelve and eighteen years of age.(8)
7. It also proclaims the right of children and adolescents to protection of their lives and health through the execution of public social policies (Article 7); and it guarantees pregnant women prenatal and perinatal care under the Unified Health System (Article 8).
8. The Commission notes with satisfaction the creation by the State of a potentially ver valuable institution. The Tutelary Council, is the permanent and autonomous but nonjurisdictional organ which must be set up in every municipality to see to the rights of children and adolescents. Each such council must have five members who are elected by local citizens for a period of three years and can be reelected. The duties of the Tutelary Council are, among others, to apply protective or socio-educational measures and to assist and advise the parents or guardians. This faculty includes the power to order the parents or guardians: to submit to psychological or psychiatric treatment; to enroll the children in school; and to send them for specialized treatment. The Council can also issue warnings to the parents and can call for the loss of custody or guardianship and the suspension or loss of patria potestad. It can also support the implementation of its decisions, notifying the Attorney General's Office of any administrative or penal infringement of the rights of children and adolescents and submitting cases within its purview to the judicial authority.
9. It should nevertheless be noted that until September of 1944--i.e., more than four years after the Statute was first published in the Official Gazette,(9) only 27% of the municipalities had set up their tutelary councils.(10)
10. While the Statute on Children and Adolescents (ECA) has made undeniable progress in the field of child protection, its practical application has met with resistance from some sectors of the population. The resistance has to do, in particular, with the reorganization of practices for direct care of children and teenagers who make a living by committing crimes and are at social risk. Although such youngsters need special care and attention, those sectors of the population feels that their situation should be treated as a public security problem and therefore maintains that they should be locked up at a remove from society and given harsh treatment.
11. The Ministry of Justice, chair of the National Council for the Rigths of Children and Adolescents (CONANDA) acknowledges that implementation of the Statute of Children and Adolescents is just beginning, and it has called for a national conference on the subject in the 2nd. Semester of 1997 to evaluate and make recommendations about the implementation and work of the Arights councils A and the A protection councils.(11)
12. The Government informs that, with the cooperation of UNICEF, the Ministry of Justice has devised and is implementing the APlan for the Promotion and Defense of the Rights of Children and Adolescents, trying to operationalize the recommendations from the national plan for human rights (PNDH). All states of the Federation prepared also in 1996, similar plans in their jurisdiction, endorsed by their Councils for Children and Adolescents´ Rights. The states are receiving financial and technical support from the Ministry of Justice.
C. THE RIGHT OF MINORS TO LIFE AND INTEGRITY
Extrajudicial executions of children and adolescents
13. Both the American Convention and the Federal Constitution of Brazil guarantee the life and physical, psychological and moral integrity of persons and set forth as one of the fundamental objectives of the Federative Republic of Brazil:
to promote the well-being of all, without distinction as to origin, race, sex, color, age, and other forms of discrimination.
14. Article 227 of the Constitution establishes that it is the duty of the family, society, and the state to ensure children and adolescents, as an absolute priority, the right to life..., to dignity, ..., as well as to keep them safe from all forms of ... violence, cruelty, and oppression.... The Statute on Children and Adolescents repeats these guarantees--in other words, the laws on minors in Brazil provide a suitable formal framework to protect the life and personal integrity of the child in light of the obligations set forth in the American Convention.
15. The true picture, on the other hand, is quite different. Despite these crystal-clear norms, millions of children and teenagers(12) live in the areas surrounding Brazilian cities in circumstances that pose personal and social risks to them and which make the streets "the arena of their struggle for survival" or "their living room."(13) It is estimated that in the city of Rio de Janeiro 30,000 children are on the streets daily, and that 1,000 sleep in the streets. In São Paulo it is estimated that 4,500 to 20,000 children spend their days in the streets of Greater São Paulo, then return home at night.(14)
16. These minors are generally from families that have emigrated from the impoverished rural areas to the metropolitan centers,that subsist in the urban peripheral areas below minimal standards of well-being and dignity,(15) and that oftentimes need their minor children to work to contribute to the family's subsistence.(16) While many "children in the street" and "children of the street"(17) respect or try to respect the law and to achieve a normal life, an important number of them live amidst crime and critical family situations, and survive by petty theft or by providing services (including to drug traffickers). In general their lives are short, since they often fall victim to the action of death squads,(18) to that of the police themselves, or to the violence in which their situation involves them.
17. According to statistics for the state of Rio de Janeiro, in 1992 alone, 424 children under 18 were homicide victims there. During the first six months of 1993, there were 229 victims.(19) At the same time, 10% of the victims of the 562 homicides reported in the state of Pernambuco (in the Brazilian Northeast) in the first eight months of 1995, were under 18 years of age.(20)
Some Studies and Examples of Summary Executions
18. In 1990, more than one thousand children were killed as a result of escalating violence. On August 4, 1991, journalist Roldão Arruda published a report in the newspaper O Estado de São Paulo in which he referred to the death of 30 minors, all under 18 years of age, in Sao Paulo in July of that year. As a result of interviews with police and with the victims' friends and relatives, Arruda concluded that 30% of these deaths had been caused by the police, and 50% by professional killers, who call themselves justiceiros. The remaining 20% were attributed to revenge, gang rivalries, or unknown motives Other studies published in subsequent years confirm its conclusions.(21)
19. These journalistic investigations and the increase in violence, led the Human Rights Committee of the Brazilian Bar Association, Sao Paulo Section, in an official note of August 28, 1991, to express its repudiation of extrajudicial executions and to call on the authorities to adopt forceful measures. This resulted in the creation of a Special Investigative Commission on Summary Executions in Sao Paulo, which was installed on August 29, 1991. It included the participation of various human rights agencies, members of civil society, and several government authorities.
20. In its final report, the Special Investigative Commission concluded that the main causes of violence against children and adolescents were the following, among others: the dramatic socioeconomic conditions in the peripheral areas of the large urban centers; the limited role of schools in combating this violence, especially public schools in the peripheral areas; the lack of adequate patrols in those same areas, which has encouraged the rise of the death squads; the special military jurisdiction which tries common crimes committed by military police; the lack of police training, which often confuses violence with force, especially in dealings with the marginal population, children, and adolescents; the lack of sufficient street educators to serve the needs of children and adolescents, especially young children who wander the streets of São Paulo without any official cognizance of their situation, and the shortcomings of the Foundation for the Well-being of Minors (FEBEM), which is not prepared to assist minors who have committed crimes in São Paulo or the interior, and the fact that the Febem facilities make no distinction between first-time offenders and repeaters, creating a climate in which the former are influenced by the bad example of the latter.
21. The Commission has selected a number of illustrative cases from these investigations:
a. In 1991, two military policemen in Lapa shot a pair of teen-agers who "looked suspicious," hitting them in the nape of the neck and the chest, respectively. Both boys were 16 years old, and neither had a police or juvenile court record.
b. In 1991, three minors stole some bread, cigarettes and coal from a bakery, and left without paying for the beer they had drunk. Three armed men caught one of them; took him a block away; and murdered him with 16 shots, in retaliation.
c. In 1990, a l7-year-old youth was taken from his home in an Olinda shantytown and murdered, along with his brother, age 19. They were known to be drug addicts and thieves, but not violent. The investigation revealed the existence of a death squadron, one of whose members confessed that he had been paid by a shopkeeper for this killing, and that his accomplices were two policemen who shot the young man.
d. The 15-year-old son of a favela dweller in Rio de Janeiro--who was known throughout the nation for having accused the police of coming into her house and killing her brother--was murdered a year later, along with two other boys, near their home, after being held prisoner by the military police.
e. Very early one morning in 1993, several men in a vehicle opened fire against children who were sleeping in property owned by the Candelaria Church. Four of the children were killed instantly and another two were wounded and died later. They were identified by a garbage collector. Three of the four murderers were policemen--who were arrested and their commander was retired from the police force. The garbage man was murdered a few months later. The crime gave rise to an investigation of death squadrons by the National Human Rights Council.
f. On a morning in 1994, the bodies of three children (two girls and one boy), 12 and 15 years of age, were found, partially clothed and placed in a cruciform position, on the steps of the Santa Cecilia church in Rio de Janeiro's Bras de Pica district. The youngsters were the "tenth victims of extra-judicial executions, death squad style, in Cordovil, Bras de Pena and Vila da Penha, Rio de Janeiro area, in 1994.
22. The Commission considers that most of the cases cited as examples (as well as others it has had an opportunity to study but that are not included in this repor) have as a common denominator the allegations of police violence against minors by the Military Police and death squads--which at times are made up of members of the police, as described in the chapter on "Violence and Police Impunity."
23. Minors, delinquent or not, are entitled to have the state guarantee the exercise of their human rights, especially the rights to life and humane treatment (Articles 4 and 5 of the American Convention). Neither the police nor private persons have the right to take justice into their own hands. It is the duty of the State of Brazil to adopt urgent measures to ensure control over its police forces and dismantle the groups hired by others to exterminate children. In this context, it should put an end to the impunity which fosters and encourages the violent actions of the Military Police. That task will require an effective investigation into the facts, a fair trial, and the imposition of the penalties provided for by law, which are obligations that derive from Article 1.1 of the American Convention.
24. By not taking the necessary measures to prevent the continued extrajudicial executions of minors and putting an end to the impunity of the persons responsible, the Brazilian State may be liable to the violation of the victims' rights to a fair trial and to judicial protection (Articles 8 and 25 respectively, of the American Convention).
25. The Commission recognizes the fact that the Military Police take their orders from the governors of the federated states, and that the judicial and legislative branches are independent. But it cannot exonerate the federal government from responsibility, even while recognizing Brazil's efforts and initiatives in the area of human rights, inasmuch as Article 28 of the American Convention makes compliance with the Convention the duty of the "national government of the" State Party that is a federal state. Accordingly, the "national government shall immediately take suitable measures, in accordance with its constitution and laws, to the end that the competent authorities of the constituent units" (the various states of the federation) may adopt the necessary measures to comply with the Convention (Article 28(3), American Convention). At the same time, it is enjoined to submit proposed laws, and provide strong support for the enactment thereof, so that the requisite legal framework is in place to end the impunity enjoyed by its agents from punishment for their attacks on the lives of minors.
Torture and mistreatment of minors by the "Military" Police
26. Article 5 of the American Convention provides that: "Every person has the right to have his physical, mental, and moral integrity respected." It goes on to say that: "No one shall be subjected to torture or to cruel, inhuman, or degrading treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." (Article 5, sections 1 and 2.)
27. The Inter-American Convention to Prevent and Punish Torture, ratified by Brazil on July 20, 1989, defines torture as:
Any act intentionally performed whereby physical and mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. (Article 2.)
28. The Federal Constitution prohibits the practice of torture when it establishes in Article 5, section III that no one shall be subjected to torture or to inhumane or degrading treatment. For its part, the Statute on Children and Adolescents in turn penalizes torture inflicted on minors by those who have custody, care, or authority over them with one to 30 years imprisonment.
29. Despite the international and domestic laws that prohibit torture, the Commission has learned of cases in which minors have been tortured by the Military Police. The information in question comes from parliamentary investigations, independent organizations, newspaper reports and individual accusations.
30. Examples of torture cases as follows, are taken from journalistic sources:
a. As reported in the daily "Folha de Sao Paulo" on September 1, 1992, two teenagers (ages 17 and 14, respectively) were tortured by 11 military policemen in October of 1992. The MPs were accused of using a technique known as "afogamento" (drowning) to torture the youths by holding the victims' heads under water in a tank. They were also accused of kicking and beating the boys, with their fists, with a stick and with the barrel of a revolver on the ribs and head.
b. According to a pastoral group in the archdiocese of Sao Paulo, on April 20, 1991 a young man 19 years of age had his face burned with acid gas by two policemen from the Rondas Octensivas Tobias de Aguiar (ROTA).
c. A story in the October 17, 1990 "Correio Brasiliense" tells of a minor in Gama who was subjected to beating sessions by the military police when she asked for help to quell a disturbance at the city's anniversary party, in a parking lot of the Bezerrao soccer stadium. According to the girl, the MPs beat, drugged and undressed her and knocked her out. She awakened in a hospital.
d. In Formosa, three boys were tortured by the military police when they tried to steal some tennis shoes. The policemen took the boys to the police station where, in the presence of other police, the boys were forced to select the ones who would beat them. After the beatings they were abused and then locked up in a cell, where they remained overnight.
e. According to a missionary-priest-teacher who gives classes to street children, five boys were beaten and tortured by ten military policemen. The boys were forced to lie on the ground, where they were beaten, while the police laid hand on their genitals, laughing as they did so. The missionary was also beaten at that time: he had been accused by the aggressors of collaborating with delinquents.
31. The Commission wants to emphasize here that the figures of police violence have decreased since 1993 in Sao Paulo and increased since May 1995 in Rio de Janeiro. (See chapter on "Violence and Police Impunity")
Violence and torture in special institutions for minors
32. The Commission has also learned of cases of violence and torture in institutions for children, which violates Article 5 of the Convention and Article 2 (among others) of the Inter-American Convention to Prevent and Punish Torture. It has also received reports that the quarters for the persons confined in these institutions are not separated by age or by the crime committed, a system that fosters violence.
33. As told to the Commission, the violence practiced in these institutions is caused by the children themselves, or by the staff members entrusted with assuring their safety and care. Minors are often tortured or murdered by other minors with the complicity of the authorities themselves--who simply fail to take action when some minors subject others to torture. On other occasions, staff members of the institution even lend minors their weapons so they can perform acts of violence. Such was the case of Fábio Alves da Silva, confined in the Social Integration Unit (Unidade de Integração Social) of the Institute for Social Well-being of Minors (ISEBEM), who was murdered at this reformatory. According to officials of the institution, the murder was committed by other minors confined there, in retaliation for having reported an escape attempt the day before. The guards on duty did not report the incident.(22)
34. Another example is the complaint filed on March 27, 1996, by a minor confined at the Joao Luiz Alves school in Rio de Janeiro, a school for young male delinquents. This minor indicated to the Public Ministry that he had been forced to commit sexual acts by a number of other minor residents and that such incidents were common at this institution. The minor stated that he had been forced to have sexual relations with other minors under the threat of death and that this had taken place with the consent of the officials of the school who had given weapons to the aggressor minors so that they could commit such acts. The minor also charged that others there had also experienced the same type of violence and that in addition they were subject to torture sessions which included burns using mattress wool, as well as beatings, and that while the sexual acts were being committed, he had been photographed by another inmate in the presence of guards.
35. According to the December 6, 1995 edition of the newspaper "O Jornal do Brasil,", eight minors--all of them females held at the Santos Dumont School for juvenile delinquents in Rio de Janeiro--had been beaten and tortured there. The person indicated as the ringleader in beating six of them was the director of the School, Newton de Souza, a staff specialist in social service. The other two were victims of aggression by the director of the institution. The girls confined there were subjected to an examination of the corpus delicti by the Institute of Forensic Medicine, which confirmed the finding. The girls reported that in addition to being beaten by the director of the institution, who used a stick from which a nail protruded, they were kept in the sun for several hours as a means of torture. One of the girls who had been beaten was seven months pregnant at the time.
36. The Commission considers that the rights of children which are protected, both in the international instruments to which Brazil is a party and in Brazil's domestic legislation, often do not meet with compliance in practice. Cases of children and adolescents who suffer torture persist and continue to be denounced in Brazilian society and to the international community. In accordance with the American Convention, it is the international responsibility of the State of Brazil to adopt urgent measures to prevent such acts of violence against minors. Given the situations described above, the Commission finds it important that the violence, extrajudicial executions and torture inflicted on minors be addressed as a priority problem of human rights in Brazil.
D. EXPLOITATION OF CHILD LABOR
37. Article 6 of the American Convention provides that no one shall be subjected to slavery or servitude, and that no one shall be required to perform forced or compulsory labor. This prohibition applies to all human beings, and all the more so to minors who, as established in Article 19, warrant special protection.
38. The Federal Constitution prohibits children under 14 years of age from working,(23) except as apprentices.(24) At the same time, it bars persons under 18 years of age adolescentes from engaging in nighttime, hazardous, or insalubrious work.(25)
39. The Statute on Children and Adolescents reiterates the constitutional ban on the performance of labor by a child under 14 years of age, except as an apprentice (Article 60). It prohibits adolescent work in places detrimental to their upbringing and their physical, mental, moral, and social development. In addition, it bans working schedules that prevent children and adolescents from attending school on a regular basis (Article 67 of the Statute on Children and Adolescents).
40. Although Brazilian legislation requires certain conditions for adolescents labor, the Commission has been informed that this practice is very common, especially in industry, where adolescents either work with toxic materials under unhealthy conditions or in hazardous places. The workdays are long and much of the work is performed at night, which often leads working minors to miss classes, and in many cases to drop out of school.
41. Even though legal restrictions allow child labor only with the special authorization of a judge, official data indicate that more than 3,000,000 children 10 to 14 years of age (or 4.6% of the total work force) are employed. Many of these children work with their parents in farm chores or small shops. Accidents, and squalid, unhealthful conditions are common in sugar production companies (during harvest) in Pernambuco, fruit production in Sao Paulo and coal operations in Minas Gerais, Mato Grosso, Mato Grosso do Sul and Para, sisal plantations in Bahia and Paraiba, cotton plantations in Parana, and reforestation in Minas Gerais, Bahia and Espiritu Santo where children are frequently used to spread toxic chemicals.
42. This type of work is usually done on farms far from the major cities and in some mills or companies of the country(26) where children and teenagers perform extremely heavy work such as cutting sugar cane or bamboo. Their workdays are typically 10 to 12 hours long, and their wages are low. In addition, they are forced to pay exorbitant amounts for the goods they need to live. This puts them into debt with their employers, and the debt rises every day; obviously they are not able to pay the debt off with their low incomes. The farm owners, for their part, do not allow them to leave the place unless they pay off their debts, and they hire gunmen to prevent them from leaving. The hired gunmen use force to carry out their jobs and at times commit even murder. All of this means that the situation of these minors becomes one of servitude since, because of this vicious circle of low income and increasing debt, they are virtually mortgaged for life to the farm. It should also be pointed out that the Commission has been informed that these minors operate dangerous tools and machines, with no types of safety equipment, that serious work accidents are common among them and, as a rule, these circumstances are not denounced to the authorities out of fear of reprisals from the employers.(27)
43. The Commission believes that since Brazil is not prohibiting or vigorously punishing these illegal working conditions for children and teenagers, it in fact is permitting it and is violating commitments assumed under the American Convention as well as the National Constitution itself, and the Statute of Children and Adolescence.
44. Private organizations and the Government are making efforts and collaborating in concrete measures to eradicate child labor in Brazil. In September the President Cardoso and eight governors and directors of several NGO's signed a number of protocols to take steps designed to end the "unacceptable practices" of child labor in Brazil.
45. Experimental programs are been implemented to reduce the exploitation of the work of minors in several states. In January 1997, begun the implementation of the AChildren´s Citizen Grant that pays a monthly stipend to poor families with children between 7 to 14, to complement family income facilitating the means for children to go to school. The payment is conditioned to the child´s school performance and attendance, and to participation by the family in employment generating projects. The project begun in Pernambuco where benefits 13.200 minors, has also begun in Bahía reaching 15.000 and the Brasilia Federal District where it reaches 27.000 families allowing to capitalize the deliveries in the benefit of the continuity of the studies of the beneficiary.
E. SEXUAL EXPLOTATION OF CHILDREN
46. As reported to the Commission, the various forms of exploitation to which children are subjected include child prostitution. This phenomenon is attributed to several causes, including socioeconomic causes, i.e. poverty, the migration of families from the poorest regions of the country to the big cities in the hope of escaping poverty; the lack of opportunities to study; and family situations marked by broken homes and ill-defined family situations, in which minors are often the victims of sexual violence.(28) Once in the cities, the adults fill the ranks of the unemployed, and in many cases, given the need to survive, female minors fall into prostitution. In exchange for their services they receive daily food but are abused by their "protectors," who often keep them in a state of total captivity.
47. Hundreds of cases of girls kept in such conditions of servitude have been denounced in remote localities around the garimpos, or gold-prospecting centers, of the Amazon region.(29) The issue of the trafficking of girls to the garimpos was widely publicized after a series of reports in the Folha de São Paulo describing the routes used in this traffic and police complicity. It is reported that due to the impact of these articles, the Federal Police carried out a raid in the city of Cuiu-Cuiu that culminated in the release of 70 prostitutes (22 of whom were minors) and the arrest of ten discotheque owners (who ran prostitution rings).(30)
48. A dramatic example of the generalized situation in this subworld of child prostitution is the case of a 13-year-old girl who, when interviewed, said she had wanted to cease being a prostitute but was unable to do because she owed a debt of US$27 to the house of prostitution where she was being held. This sum represented what was left of the US$37 she owed for having stolen a grandfather clock that belonged to the owner of the bordello. To pay for the breakage, she had to turn over the entire proceeds for twenty sex services--which was simply not possible, since she needed the money to cover other expenses, including food, clothing and rent.(31)
49. According to reports received, in some places in the interior of Rio Grande do Sul, various schemes were discovered that were designed to convince the parents of minor girls--by promising to provide for their education, to allow the girls to go to the city. Contrary to the offers, upon reaching the big city the minors were forced to work as prostitutes, often with the connivance of the civilian police.(32)
50. In Bahia, an investigation conducted by the state parliament revealed not only the magnitude of child prostitution, but also the complicity of taxi drivers and frequently with the tacit complicity of the police.
51. It has also been reported that in the regions of Pará, Rondônia, Amazonas, Acre, and Amapa, where there is intense gold prospecting, the families turn over their minor daughters to the garimpeiros in exchange for basic necessities. In other cases, the girls are convinced to work in restaurants or bars, and are offered better wages; when they show up, however, they discover that the work consists of providing prostitution services. From the outset the employers allegedly tell them they owe the amount of fare paid. But that is only the first step in a vicious circle in which the debt continues to rise, and the only way for the minor girls to make repayment is through work as prostitutes.(33) It has been noted that in this setting the owners of the garimpos wield a great deal of power, that the authorities adopt a passive attitude towards these events, and that society is indifferent.(34)
52. As a result of the complaints received in relation to the forced prostitution of girls, the authorities prepared an official document attesting to the fact that this type of prostitution exists in Brazil.(35) For their part, the Federal Police prepared an in-depth study of complaints of murder and torture of girls in servitude in the North. In November 1992, the police freed 92 adolescents ranging from 12 to 18 years of age and 30 girls under age 12 from brothels in the mining camps in the state of Rondônia. In addition, the Congress established a Parliamentary Investigative Commission to look into the reports of the forced prostitution of girls.
53. The report of that Parliamentary Investigative Commission verified the participation of the police in the prostitution of minors, and recommended, among other things, establishing more social programs, amending the Criminal Code, and effectively implementing the Statute on Children and Adolescents to protect minors subjected to this kind of violence. While the Investigative Commission did not find evidence to support the assertion that there are 500,000 minors working as prostitutes in Brazil, it did note that child prostitution exists in the ten states it visited, and that in the city of Rio de Janeiro alone, 500 girls from 8 to 15 years old were involved in prostitution.(36)
54. In February 1997, the Government presided by F.H. Cardoso launched a forceful campaign against Asexual tourism to Brazil, under the slogan A Beware, Brazil is looking against tourists trying to exploit sexual services from minors.The campaign is not just advertising and preventive, because it includes the prosecution of tourism agencies involved, as well as the establishments, restaurants and drivers connected; as well as the punishment of tourists (domestic or foreigners)found responsible. Brazilian penal law requires sentences from 1 to 4 years of prison for pedophilia.
55. Besides these measures, the Government, with the support of civic organizations, started the Adial complaintsoperation to receive complaints anywhere in Brazil. In association with the National Association of Protection Centers (ANCED), the Ministry of Justice provides the means and training to care for victims and to check out compalints. It also supports the states in establishing networks to combat sexual exploitation of children.
56. The Commission considers this campaign, referred to one of the types of child prostitution in Brazil is a valuable example of ways to fulfill the duty of the Brazilian state to protect the life and integrity of these minors, pursuant to Articles 4 and 5 of the Convention, and to guarantee their rights not to be subjected to forced labor or servitude (Article 6 of the Convention). The Brazilian state is also obliged to provide severe punishment for the abuse, violence and sexual exploitation of children and adolescents, as established in Article 227, section 4, of the Federal Constitution, which prohibits of labor for children under 14 years of age and nighttime, of nighttime, hazardous, or unhealthy work by minors under 18 years of age.
F. POSSIBLE DISAPPEARANCES OF CHILDREN
57. During its on-site visit in December of 1995, the Commission received complaints from the "Mothers of Acari," who live in the favela, or shantytown, of the same name, in Rio de Janeiro. The mothers said that 11 adolescents had disappeared in August 1990, and that their bodies were never found. Based on an investigation, five members of the police were identified as suspects, but were never indicted by the Office of the Attorney General, for lack of evidence. One of the mothers was murdered in 1993, after she had organized a meeting with the other mothers to discuss the matter. The Commission was also told of the disappearance of girls who are presumed to have been kidnapped and sold into forced prostitution.
58. The Commission was given information about the disappearance of children both in the large cities and in areas farther from the state capitals as a result of the extrajudicial executions, kidnapping for purposes of prostitution and similar purposes. The children simply disappear, leaving no trace, and their bodies are not found. The Commission is not in a position to assert that this is a generalized practice; but given the frequency and nature of the reports it receives to that effect, it urges the authorities to intensify its investigation of this topic and to take appropriate measures. Government information indicates that most disappearances occur as a result of family problems (kidnapping by the parents themselves, children running away). Campaigns sponsored by the government and civic associations (including commercial TV) appear to be relatively successful inlocating children and bringing them back home.
G. CONCLUSIONS AND RECOMMENDATIONS
59. The testimony collected during its on-site visit to Brazil, as well as the information received before, during, and after that visit, allow the Commission to conclude that the situation of children in Brazil is extremely serious. The undeniable legislative gains of recent years and the creation of new institutions to protect children and adolescents do not appear to be clearly reflected in the situation of minors, many of whom continue to be the target of various forms of violence, especially of summary executions.
60. The Commission recognizes the undeniable commitment of the President Fernando Henrique Cardoso's government to the cause of human rights, as well as its willingness to acknowledge with transparency and firmness the existing problems with respect to the rights of the child. It is also aware of the vigor with which the government condemns and confronts the violation of those rights. The Commission nevertheless finds it necessary to note that the Brazilian State has not yet succeeded in guaranteeing the human rights of children effectively.
61. As a result, the Commission recommends to the Brazilian State that it:
a. Comply with, publicize and put into practice its legislation to protect children and adolescents, in particular the Statute on Children and Adolescents, and to ensure that the state, the municipal and other authorities that are required to enforce the law abide by and respect it. That it strengthen CONANDA, the sole organ of a national nature which formulates national policies for the promotion, observance and defense of the rights of children and adolescents.
b. Protect the life and integrity of "children of the street" and "children in the street," and adopt effective measures to promote their education, rehabilitation, and integration into society;
c. Adopt protective and oversight measures to eliminate slave labor by children and adolescents and work by children under 14 years of age when such work is nighttime, hazardous, unhealthy or carried out in places prejudicial to their upbringing and their physical, psychic, moral and social development, and when it is performed on schedules and in places that do not permit regular attendance at school. and that it investigate effectively, try and punish the parties responsible for the forced labor of minors; responsible for the forced labor of minors;
d. Prevent and eradicate the acts of torture and abuse received by minors in prisons and institutions where they are confined; and that it investigate, punish, and try the persons responsible for those offenses; and strengthen governmental and community agencies to supervise police action in regard to minors.
e. Terminate the situations of servitude and prostitution of children and adolescents. Effectively investigate, try and punish the exploiters and clients;
f. Promote, and require the states and municipalities to comply with, the legal obligation to create Tutelary Councils and make use of the positive experience acquired by those already in existence. Encourage participation by the community, especially the churches, labor unions, service and entrepreneurs groups, to help with joint projects to prevent delinquency and exercise external control over what happens in the establishments for the delinquent or maladjusted minor, with a view to forging a more equitable society.
g. Create family guidance programs and government programs to train families to exercise responsible paternal and maternal judgment and to settle family disputes by nonviolent means; andd promote the adoption of abandoned children in order to take them off the streets where they are the victims and agents of violence;
h. Provide schools with funds so they can work with the special institutions for minors to set up programs to prevent delinquency and absenteeism in public schools, especially those in peripheral areas. Build and organize adequate facilities to shelter and rehabilitate young lawbreakers and separate first offenders from repeaters. Train technical staff to care for these minors; adopt measures designed to educate and rehabilitate them and reincorporate them into society. Provide severe punishment for the authorities and staff of these establishments who commit abuses and acts of violence against the minors.
1. The need to give special attention to the situation of children was originally recognized in the Geneva Convention on the Rights of the Chile in 1924, and thereafter in the Declaration of the Rights of the Chile, adopted by the United Nations General Assembly on November 20, 1959 along with the general instruments on human rights and those of the specialized agencies. The Convention of the Rights of the Child was approved by the United Nations in 1989. It defines the word "child" as every human being under the age of 18 years except when, in accordance with the law applicable to children, majority of age is reached before that year. This chapter in many cases differentiates between children (generally referred to as prepubescent, roughly up to the age of 12) and adolescents.
2. According to the same provision, these measures should include effective procedures to establish social programs aimed at giving children and those responsible for them the support they need to identify, file charges, investigate treat and monitor the aforementioned types of violence, and to secure judicial intervention.
3. See, O Trabalho e a Rua, supra, note 13, pp 10-14.
4. This provision incorporated into the Constitution the essential elements contained in the Convention on the Rights of Children, whose text was already public information in Brazil before its ratification in 1990. See O Trabalho e a Rua, supra, note 13, pp 10-14.
5. Articles 7 to 14 of the Statute on Children and Adolescents (Law 8069/90).
6. Articles 53 to 69 of the Statute on Children and Adolescents (Law 8069/90).
7. Article 15 of the Statute on Children and Adolescents (Law 8069/90).
8. Its provisions relate to physical development (health and diet, articles 7 to 14), intellectual development (right to education, to vocational training and to protection in work, articles 53 to 69), emotional, moral, spiritual and social development (right to liberty, respect, dignity, family life and community participation).
9. The Statute on Children and Adolescents was published originally in the Official Gazette of Brazil of July 16, 1990, and was later amended and published in the Official Gazette of October 16, 1991.
10. Research by the Brazilian Center for Infancy and Adolescence, September 1994.
11. The conference was preceded by municipal and state preparatory meetings. The Children and Adolescent Department (DCA) of the Ministry of Justice is giving technical and financial support for the establishment and operation of councils in a number of cities. To upgrade the work of the Children's and Adolescents' Rights Councils, the Brazilian Technology Association and the University of Brasilia signed an agreement to conduct a project on training counselors by distance education. The DCA still provides technical and financial support to the states in training human resources for the execution of the Children and Adolescent Statute (social workers, judges, promotion agents, legal system workers, police, rights counselors and guardian counselors). In 1996 human resources training was given in the following 20 states: Amapa (280 persons), Amazonas (915), Para (288), Tocantins (70), Alagoas (409), Bahia (100), Ceara (100), Maranhao (560), Paraiba (125), Pernambuco (638 professionals from a variety of areas and 600 police), Piaui (45), Rio Grande do Norte (410), Sergipe (80), the Federal District (420), Goias (1,560), Parana (1,210) and Rio Grande do Sul (492). The Government also reports on the activities of the Brazilian Association of Magistrates and Justice Agents for Children and Youth (ABMP) in carrying out the Children and Adolescent Statute under an agreement with the University of the State of Rio de Janeiro, UNICEF and others.
12. Frequently these children are the products of complicated or undesired pregnancies; during infancy and adolescence, they are rejected, abused and misunderstood, they do not attend school and they do not have jobs. These are minors who frequently end up murdered in dramatic circumstances in the major cities of Brazilian society. ORDEM DOS ADVOGADOS DO BRASIL, SAO PAULO SECTION, Idem., page 153.
13. AYRTON FAUSTO, CERVINI RUBEN, O Trabalho e a Rua: Criancas e adolescentes no Brasil urbano dos anos 80. Selected texts taken from studies and research supported by UNICEF and FLACSO, page 9. Sao Paulo: Editorial Cortez, 1991.
14. COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1994. Report Submitted to the Committee on Foreign Affairs, House of Representatives, and the Committee on Foreign Relations, U.S. Senate, by the Department of State, page 349 (1995).
15. See O Trabalho e a Rua, supra, note 13, page 10.
16. A research project conducted with children and adolescents for the city of Fortaleza reveals that almost 60% of the persons interviewed needed a job to help their families. Direitos Humanos no Brasil (1992-1993), JUSTICE AND PEACE COMMISSION, ARCHDIOCESE OF BRASILIA, Edicoes Loyola, Sao Paulo, page 64 (1994). See also, O Trabalho e a Rua, supra, note 13, page 75.
17. Contrary to what was formerly thought, most of the minors who live in the streets have families and live with their parents. Many of them live with their mother and some live on the streets and have lost contact with their families or seem them only occasionally. For that reason, since 1980, a difference has been made between children living in the streets who are called "street kids" and those living in the streets who are called "kids in the streets." At any rate, the belief that these are poor children and adolescents with responsibility for making a contribution to the family budget grew stronger. See O Trabalho e a Rua, supra, note 13, pp 76-77.
18. See, for example, MINISTRY OF FOREIGN RELATIONS, Initial Brazilian Report Relative to the International Pact of Civil and Political Rights of 1966, Ministry of Foreign Relations, Alexandre de Gusmao Foundation and the Nucleus On Studies of Violence, University of Sao Paulo, page 41 (1994).
19. The Parliamentary Inquiry Commission of the State of Rio de Janeiro reported that 90% of the children murdered had no criminal record. Brazil Street Children Murders (Internet).
20. COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1995. Report Submitted to the Committee on Foreign Affairs, House of Representatives, and the Committee on Foreign Relations, U.S. Senate, by the Department of State, page 349 (1995). A study on the deaths of children that occurred between 1991 and 1993 makes reference to the motives that lead those children to a life of violence in the streets. The 1993 study was conducted on the basis of police investigations conducted in 1991 and reports of the Office of the Secretary of the Civil Police for the State of Rio de Janeiro for 1992-93. The study concluded, in addition to others, the following: That most of the deaths were not "street kids" (in other words, those who actually lived in the streets), but young male adolescents, approximately 17 years of age, who were killed in areas close to their houses; that all were poor and had no particular ethnic identification (although the study recognizes that the most likely victims are black and mixed raced children who historically are those hardest hit by the unequal distribution of wealth and by socioeconomic discrimination); that the violence appears to be linked primarily to general crime conditions and to the drug traffic, an activity especially well suited for recruiting and involving children; that that world offers them, among other things, a job, money, power, values, rules of behavior, protection, social status and the feeling of belonging to something; that they find insecurity, fear, mistrust and even terror and that it is not necessary to be linked to drugs or to illegal practices to lose one's life in that circle of violence since it is enough to be close to a parent, a neighbor or a friend of those who are in fact involved in that world. See C. MILITO, H.R. SANTOS SILVA, E. SOAREZ, Murders of Minors in Rio de Janeiro State (from 1991 through July 1993), pp 17, 18 (1993), Report Research Conducted as part of Project, "If This Street Was Mine," (FASE, IBASE, IDAC, ISER).
21. The report concluded, among others, that: there was no extermination campaign against criminal adolescents in the city; most of the deaths involved children from large families of up to 14 children; the deaths occurred in the periphery of Sao Paulo city, at distances ranging from 30 to 50 kilometers from downtown; 86% were blacks or mixed race; of the 30, 25 were 16 or 17 years of age; the majority of the families of the dead minors lived in small, single -level masonry dwellings, in a constant state of construction, with exposed bricks and ironwork; the houses were built in areas having very low real estate value; the minors belonged to migrant families who had arrived 15 or 20 years ago from northeastern Brazil, from the interior or from neighboring states such as Minas Gerais or Parana. To conduct the interviews, the journalist traveled 2,300 kilometers on the periphery of the city. "People are very afraid." "...death is an everyday thing," wrote the reporter. See Final Report of the Special Investigation Commission for the Examination of Summary Executions in Sao Paulo, September 16, 1992. ORDEM DOS ADVOGADOS DO BRASIL, Sao Paulo Section, Human Rights Commission, Summary Executions of Minors in Brazil, pp 135-139 (1993). As for the report of Roldao Arruda, published in O Estado de Sao Paulo, see page 38.
22. Diario Popular, November 11, 1993.
23. Article 227, paragraph 3, clause I, of the CF [Federal Constitution]
24. Article 7, clause XXXIII, of the CF.
25. Article 7, paragraph XXXIII, of the CF.
26. See MINISTRY OF FOREIGN RELATIONS, Initial Brazilian Report Relative to the International Pact of Civil and Political Rights of 1966, Ministry of Foreign Relations, Alexandre de Gusmao Foundation and the Nucleus on Studies of Violence, University of Sao Paulo, page 50 (1994).
27. For more on this matter see Diario Popular, June 8, 1993.
28. JOHN DREXEL, O.M.I. and LEILA RENTROLA IANNONE, Crianca e Miseria, Vida ou Morte?, page 74 (1989).
29. MINISTRY OF FOREIGN RELATIONS, Initial Brazilian Report Relative to the International Pact of Civil and Political Rights of 1966, Ministry of Foreign Relations, Alexandre de Gusmao Foundation and the Nucleus on Studies of Violence, University of Sao Paulo, page 51 (1994).
30. GILBERTO DIMENSTEIN, Democracia em Pedacos: Direitos Humanos no Brasil, Sao Paulo, Ed. Companhia das Letras, page 161 (1996). See also MINISTRY OF FOREIGN RELATIONS, Initial Brazilian Report Relative to the International Pact of Civil and Political Rights of 1966, Ministry of Internal Relations, Alexandre de Gusmao Foundation and the Nucleus on Studies of Violence, University of Sao Paulo, page 51 (1994).
31. GILBERTO DIMENSTEIN, Democracia em pedacos: Direitos Humanos no Brasil, Sao Paulo. Ed. Companhia das Letras, page 161 (1996).
32. See Blue Paper - Guarantees and Violations of Human Rights No. RS-1994, Commission on the Citizenry and Human Rights - AL\RS), pp 25, 26, 27-28.
33. Survey on the Status of Human Rights With a Focus on the Situation of Human Rights of Children and Adolescents in Rio de Janeiro for the Human Rights Commission - Center of Defense, Guarantee and Promotion of Human Rights, 1995, page 134.
34. See CPI on Child Prostitution, page 82, 4th paragraph.
35. MINISTRY OF FOREIGN RELATIONS, Initial Brazilian Report Relative to the International Pact of Civil and Political Rights of 1966, Ministry of Foreign Relations, Alexandre de Gusmao Foundation and the Nucleus on Studies of Violence, University of Sao Paulo, page 51 (1994).
36. COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1995. Report Submitted to the Committee on Foreign Affairs, House of Representatives, and the Committee on Foreign Relations, U.S. Senate, by the Department of State, page 349 (1995).