IACHR

Press Release

Annex to the Press Release on the Visit

December 15, 2017

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Washington, D.C.—The IACHR appreciates the authorities’ openness and willingness to engage in constructive dialogue with the Commission, and the valuable information and data provided during the visit. The Commission also draws attention to the meetings it held with civil society organizations that work to defend the rights of children and adolescents, as well as with other interested actors, for the concrete proposals they made to help meet the challenges that have been identified. The IACHR also notes the importance of seriously and constantly taking into consideration the voices and opinions of children and adolescents deprived of liberty and their families, as part of the State’s efforts to identify the problems that afflict SINASE and identify solutions.

During its visit, the IACHR observed that, in general, the SINASE Law (12.594/2012) takes as a reference point the principles of the United Nations Convention on the Rights of the Child, especially those establishing the exceptional and temporary nature of the penalty, the principle of the best interests of the child, the recognition of the adolescent’s state of development, and the consideration that the purpose of punishment should be socio-educational and for adolescents’ rehabilitation and social integration. The SINASE Law gives priority to socio-educational measures that do not involve deprivation of liberty and regulates a wide range of measures, making deprivation of liberty in a closed system the exception, one that should be applied through individualized attention geared toward reintegration into society and the family environment, ensuring access to the rights to health, education, and professional training. However, based on what the IACHR observed, there are significant challenges to the implementation of the SINASE Law in practice, with the situation more critical in certain states.

During the visit to the SINASE detention facilities, the Commissioners found patterns of maltreatment and torture and excessive confinement periods of up to 23 hours per day. In the state of Espírito Santo, the conditions of confinement and treatment of the adolescents was found to be similar to measures in prison, due to the lack of qualified, trained personnel and socio-educational staff, in addition to problems with the facilities’ infrastructure. It was noted that the detention centers have many security personnel and few socio-educational workers to meet the measures’ objective of rehabilitation and social integration. During the visit, the Commissioner heard accounts of threats and acts of aggression against the juvenile inmates by socio-educational staff, the abusive use of handcuffs, confinement to their cells (the “lockup”), and the obligation to stay in painful positions for long periods of time (the “procedure”) as a form of punishment. The Commission also found conditions in the facilities that were contrary to the aims of the National System for Socio-Educational Services, ranging from dilapidated rooms that need structural repairs, adjustments, and maintenance, to educational and professional facilities in poor condition. In addition, the Commission was informed about problems with poor diets, and it observed the lack of medical attention in the detention centers, with a psychiatrist and a doctor available only once a week to treat the inmates. At the same time, the Commission observed that progress had been made on access to education in terms of detainees’ regular access to classes, the presence of teachers from different disciplines, and the levels of the students.

During the visit to the Female Internment Unit (UFI) in the state of Espírito Santo, which opened in October 2017, the Commission observed good living conditions, a space for mothers and children, and a room for professional workshops and classes. These conditions that were observed are more in line with applicable standards and represent significant progress with respect to the situation in other centers the Commission visited in that state. However, it was observed that due to the lack of a semi-open regime, the inmates have to remain in the UFI unnecessarily.

In the state of São Paulo, during the visit to CASA Cedro and CASA Nova Aroeira, both in the Raposo Tavares Complex, the Commissioners observed physical structures resembling prisons and received troubling information regarding the existence of systematic violent practices adopted by personnel in the socio-educational units, such as confining recently arrived adolescents to isolation cells, where they are subjected to physical violence on the part of several agents (the “reception”) and forced to stay in painful positions for long periods of time (the “procedure”), among other physical and verbal acts of aggression, sometimes perpetrated by several agents at the same time. According to what the Commission was told, some of these practices are justified by the agents as a response to the failure to comply with the institution’s internal disciplinary rules. Inmates also said that management ignored the incidents of violence against them, and indicated that inmates who report these acts are attacked.

In the state of Ceará, the Commissioners observed that there has been progress ever since the determinations in Precautionary Measure PM 60-15 regarding developments in infrastructure and conditions for providing medical services, sanitation, food, and education. In this regard, the Commission observed that there had been progress with respect to flexible educational initiatives to ensure the right to education for all the adolescents so that they can resume their studies. However, the Commission is concerned about the State’s incapacity to offer safe conditions and protect the personal integrity of the inmates. The Commissioners were also informed that punishment measures include denying the adolescents visits or contact with family members, or not allowing them to attend classes.

The IACHR was also told about the illegal and unjustified use of inspections and humiliating searches in which the person has to strip naked; these are reportedly applied both to the juvenile inmates and to their family members and visitors. In the case of the juvenile inmates, these searches occur various times a day, when they are entering and leaving their cells or in other areas in the centers. These types of inspections should be subject to the principles of necessity and exceptionality, and applicable only in cases in which concrete situations of risk have been identified. In these cases, the Commission underscores that all actions should respect the privacy and dignity of the individuals being searched. According to the IACHR’s recommendations, security controls should prioritize electronic means of inspection.

During its visit, the Commission was also informed about the gradual privatization of the management of the socio-educational centers, and the existence of doubt as to whether this could jeopardize the inmates’ security and threaten the independence of the socio-educational system’s actions and the achievement of its objectives.

On another point, the Commission welcomes the initiatives presented by the authorities to promote restorative justice practices that seek to reduce confinement, with a focus on semi-liberty and on alternatives to deprivation of liberty, such as community service. The Commission also commends federal initiatives to create protocols for action in the context of judicial proceedings and of reports of cases involving children and adolescents in contact with the law.

The Commission notes and commends the role of state Offices of Public Defenders in filing individual and class actions to protect the rights of adolescents in contact with the law, and reiterates the need to expand cooperation with other public bodies and institutions, such as state-level Public Prosecutor’s Offices and judicial bodies, to address complaints about violence, threats, and torture and about conditions at SINASE facilities and the treatment received.

For their part, civil society organizations conveyed their concern to the Commissioners regarding the difficulty of engaging in dialogue with the government agencies responsible for implementing SINASE; the lack of follow-up by state-level Public Prosecutor’s Offices to complaints of torture and sexual abuse; and the procedural backlog in state courts. In these regard, the Commission calls to mind the obligation of Public Prosecutor’s Offices to investigate complaints of torture and maltreatment, and the obligation of the judiciary to criminally prosecute—promptly, impartially, and effectively—those responsible for such acts.

The IACHR also received troubling information regarding several bills in process that are related to juvenile justice: Draft Amendment to the Constitution to Lower the Age of Criminal Responsibility (PEC 33/2012); Bill 7197/2002, which proposes modifying the Statute of the Child and Adolescent (ECA) so that deprivation of liberty goes from a maximum of three years to eight in cases involving serious crimes (“foul crimes”); and Bill 6433, which would allow the application of electric shocks on juveniles in detention centers. Specifically, in terms of PEC 33/2012, the Commission emphatically warns that a change in these characteristics, which would treat adolescents as adults as of age 16 for committing certain crimes, is contrary to international human rights standards and to the obligations assumed by the Brazilian State. In that respect, Commissioner and Rapporteur on the Rights of the Child Esmeralda Arosemena de Troitiño noted that “currently in Brazil, children and adolescents from age 12 are held accountable for their actions under a specialized juvenile justice system when they are found guilty of actions specified in the Criminal Code, and their actions are therefore not going unpunished and are not exempt from being addressed, as often tends to be argued in these types of debates.”

In the course of the visit, the delegation learned of the serious events that occurred in the early morning hours of November 13 in Fortaleza, Ceará, when a group of at least 10 men, according to publicly available information, broke into the Mártir Francisca Semi-Open Detention Center and captured six adolescents who had been sentenced to semi-liberty at the facility. Four of these adolescents were later found dead in the vicinity. After that episode, a number of adolescents fled the facility out of fear of a recurrence; all were recaptured by the Military Police, and some were reportedly injured due to the actions of the security forces. According to information provided to the IACHR, the dangerous situation for some of the adolescents housed in the Semi-Open Center is known to the authorities, and before the events in question, one of the adolescents had reportedly informed a judge responsible for implementing the socio-educational measure about threats from a criminal gang. However, the measures provided by the authorities were insufficient to prevent these tragic events. The IACHR was also informed that the situation of insecurity and threats from these gangs has motivated some adolescents not to comply with the socio-educational measure of semi-liberty, due to the lack of guarantees for their personal integrity in the detention center; the adolescents housed in this facility are between 12 and 18 years old. The Commission reminds the State that, as guarantor of the fundamental rights of persons deprived of liberty, it has an inescapable legal duty to take concrete steps to protect inmates’ rights to life and personal integrity, particularly those measures geared toward ensuring their well-being and preventing and controlling possible unsafe conditions inside these facilities.

At the end of the visit, Commissioner Arosemena de Troitiño cautioned that “the juvenile justice system in Brazil has for years faced very serious structural and widespread challenges to protect the rights of adolescents deprived of liberty.” She urged the State of Brazil “to urgently redouble its efforts to protect the rights of these adolescents and to introduce the reforms needed for the current operation of the socio-educational centers in line with international standards.” The Commissioner added, “Brazil should implement a real paradigm shift that complies with the international commitments made by the State and with the constitutional principles of full protection and absolute priority for children, particularly with respect to the establishment of a restorative justice model that encourages the teaching of accountability, to promote social integration.” She concluded by stating that “there is ample evidence that locking up adolescents is ineffective to address violence and insecurity, as these types of repressive measures do not provide the conditions to prevent recidivism into criminal activity in the future, especially when the confinement is carried out in conditions such as those observed during the visit.”

For his part, Commissioner Cavallaro expressed his concern over the fact that SINASE’s own figures “show that 56 percent of the adolescents are of African descent, although it must be noted that ethnicity was not determined in 22 percent of the cases, which could even increase the official figures on Afro-descendant adolescents deprived of liberty in the country.” The Commissioner added that “the overrepresentation of adolescents of African descent in SINASE reflects the especially vulnerable situation to which a group that has traditionally been excluded and discriminated against in the country appears to be exposed.” He said that the State should “reinforce social policies and policies to protect their rights, and should eliminate patterns of discrimination in the security forces, in the justice system, and in the operation of the SINASE centers.”

The Commission warns about the large numbers of adolescents deprived of liberty for nonviolent, drug-related offenses, and the excessive use of pretrial detention. In this regard, it calls to mind that international human rights law recognizes that juveniles in drug trafficking should be treated as victims, considering that their use in the production and trafficking of drugs is one of the “worst forms of child labor” and therefore a form of exploitation that seriously endangers their personal integrity, their integral development, and the enjoyment and exercise of their rights. In addition, it must be taken into consideration that the vast majority of adolescents who are engaged in micro-trafficking are themselves drug users and that addiction is one of the strategies used to capture and keep them as small-scale dealers, paying them partly with drugs. The IACHR has also recommended decriminalizing the use and possession of drugs for personal use, based on a perspective of public health, not security. With regard to pretrial detention, Commissioner Cavallaro urged the State to “conduct an evaluation of the use of pretrial detention for juveniles and take the necessary corrective steps to reduce this practice in accordance with applicable legislation and international standards.”

The Commission strongly rejects all institutional practices that threaten the personal integrity and dignity of children and adolescents in contact with the law, as well as those practices that are contrary to the objectives of socio-educational measures, and urges the State to take urgent measures to do away with these practices. In addition, the IACHR reminds the State of its obligation to ensure the safety of the inmates from the presence and actions of criminal organizations in its facilities, protecting the right to life and integrity of all individuals in its custody.

The Commission considers it essential for the State to facilitate the means for juvenile inmates to file complaints or reports over the treatment they receive in the centers, and for these complaints to be addressed seriously, promptly, and effectively, appropriately punishing those responsible for the acts. Information about the number of complaints and their outcome should be public. In addition, the IACHR recommends that the State take the appropriate measures to encourage the creation of mechanisms to prevent and combat torture in the states that do not yet have them, and urges the State to ensure that adolescents in contact with the law have high-quality legal defense, strengthening the Offices of Public Defenders in terms of human resources and funding so that they can act effectively.

The Commission also considers it urgent to adopt initiatives that increase the availability of semi-liberty measures and alternatives to deprivation of liberty throughout the country, so that in practice confinement in a closed regime becomes a measure of last resort. The Commission also recommends that the State coordinate the appropriate measures, such as by adopting instructions and guidelines, geared toward state-level courts and prosecutorial offices with a view to reducing the use of confinement.

Finally, the IACHR underscores the fundamental role of socio-educational staff in the implementation of SINASE, and calls on the State to review its policies and procedures for selecting and training these professionals and review their working conditions, as well as the budget allocations earmarked for this category of professionals.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the respect for and defense of human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 209A/17