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Brazil: Children’s Rights Are Just a Legal Fiction

Brazilian childrenSome jurists regard Brazil’s constitutional and statutory protection as a model for the world in all it says about the rights of children. The Unicef describes Brazil’s Child and Adolescent Statute as one of the most advanced in the world. In reality, however,   children’s rights in Brazil only exist on paper.

Brazilians are bound by law to ensure basic rights to their children. This is what Article 277 of Brazil’s Constitution says: “It is the duty of the family, of society, and the state to ensure to children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, family and community life, as well as to protect them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression”.

In theory, there are several laws in Brazil about the protection of children against all forms of abuse, violence, and sexual exploitation.

Some ‘progressive’ jurists even regard Brazil’s constitutional and statutory protection as a model for the world, in all it says about the rights of children.

Actually, the Unicef describes Brazil’s ‘Child and Adolescent Statute’ (ECA) as one of the most advanced in the world. (1)

Likewise, jurists from the Inter-American Commission on Human Rights commented that the ECA embraces a ‘special concept’ of children’s rights, “thereby introducing innovations in the policy of promotion and defence of their rights in every dimension: physical (health and food); intellectual (the right to education, professional training, and protection in the workplace), emotional, moral, spiritual and social (the right to liberty, to respect, to dignity, to harmonious family and community relationships)”. (2)

But the basic problem in Brazil is the disturbing distance that separates the rights of children inscribed on law from their effective exercise, and, above all, the guaranty of their existence in practice.

Although statutes like the ECA endows children with an incredible number of ‘fundamental’ rights, such rights often do not meet with compliance.

One of the ECA authors has once complained that the ECA cannot be applied because Brazilians still have to “become aware of the fact that… parents are supposed to protect their children, local authorities should assist parents and, finally, the right place for a child is in school”. (3)

In reality, the ECA and other legal provisions concerning the rights of children are far from being a good law.

In Brazil, every teenager has acquired the right to vote at 16 years old, although he is not criminally liable until 18 years old. (4)

Therefore, a 17 year-old person is allowed to vote for the President of the Republic but he does not hold criminal accountability.

For Ib Teixeira, a highly regarded specialist on the topic of criminality in Brazil, the ECA is indeed the only legislation in the world that gives a free license for adolescents to kill anyone they wish. (5)

Actually, a 17 year-old serial killer may kill one, two, or even a thousand people, for he will face not more than a three-year internment in ‘educational establishment’.

As a result, people have decided to deal with the problem of juvenile delinquency by extra-legal means. Homicides among the Brazilian youth rose dramatically since the ECA was enacted, as federal law, in 1991. For instance, it grew 77 percent between 1994 and 2004. (6)

By 2003, 72 percent of all deaths of teenagers between 15 to 19 years old were due to violent causes related to homicide, suicide, and traffic accidents. Also, homicide has become the main cause of death for children aged 10 to 14, and less than 2 percent of their murderers served prison sentences. (7)

Both the Brazilian Constitution and the ECA have determined that adolescents between 14 and 17 years old cannot work in hazardous, unhealthy, nocturnal, or morally harmful places.

In practice, even small children are working in such places, including for the purpose of begging, drug trafficking, and prostitution. As one might expect, the working child is vulnerable to all sorts of accident at the workplace.

There are reports about children illegally working in areas like charcoal, sugarcane, and footwear, who have suffered from accidents like “dismemberment, gastrointestinal disease, lacerations, blindness, and burns caused by applying pesticides with inadequate protection”. (8)

The ECA says that children can only travel with their parents’ approval. In practice, many children are trafficked for the aim of child prostitution. Girls from the countryside have been recruited in the major cities as prostitutes at erotic clubs, modeling agencies, and want ads.

In places along the coast, sexual tourism has involved their prostitution by travel agents, hotel workers, taxi drivers, etc. The U.N. estimates that 500,000 children are victims of sexual abuse throughout the country. (9)

By 2002, for instance, the International Labor Organization (ILO) reported that 3,000 girls from the scarcely populated state of Rondônia were subjected to forced labor and/or prostitution. (10)

In 1992, the National Congress decided to establish a special commission in order to investigate the serious problem of child prostitution, and found that only in the city of Rio de Janeiro more than 500 girls ranging from 8 to 15 years old were working as prostitutes.

The Congress also confirmed that police officers had been involved in this kind of prostitution. (11) In fact, even politicians themselves are involved in child prostitution.

In 2003, for example, the police caught five city council members from Porto Ferreira, in São Paulo state, having group sexual activities with minors between 11 and 16 years old, who were paid with drugs and/or US$ 11 to US$18 each one. (12)

On July 2004, the National Congress conducted another detailed investigation and found that hundreds of politicians, judges, and business leaders were involved in sexual exploitation of minors. Some reports talk about sexual abuse of nursing babies.

The investigation discovered, for example, that the vice-Governor of Amazonas had required sexual services to a network of prostitution recruiting 16 year-old girls. (13)

But the parliamentary group’s coordinator, Patricia Saboya, has also “accused the government of doing ‘practically nothing’ to investigate or punish those involved”. (14)

Figures show that 7 million children are currently living on the streets of Brazil’s major cities. (15) These children are homeless due to parental neglect, as well as the lack of assistance from the government and civil society.

Naturally, street children are utterly deprived from their most basic needs. They do not have home, school, adequate food, and medical care. They do not have even the basic right to stay alive, for they often become victims of death squads or another form of violence produced by their precarious situation.

If a street child can manage to survive one more day, he will have to worry about his next meal and place to sleep. Since a street child recurs to theft in order to survive, people have paid death squads to ‘clean up the streets’ from this sort of ‘inconvenience’.

When the government of Rio de Janeiro installed a ‘hot line’ seeking information about the killing of eight street children, in Rio’s downtown, the service had to be discontinued because thousands flooded the telephone line with messages in favor of their execution. (16)

References

(1) Vasconcelos Luciana; “Kids in Brazil: Great Law is not Enough.” Brazzil, July 2004.
(2) Organization of American States; Report on the Situation of Human Rights in Brazil. Inter-American Commission on Human Rights, 1997.
(3) Vasconcelos Luciana; “Kids in Brazil: Great Law is not Enough.” Brazzil, July 2004.
(4) See: Brazilian Constitution, Art.228.
(5) Pinter, Silvia; “O Alto Preço da Violência Brasileira. Interview with Ib Teixeira,” Joinville, A Notícia, February 3, 2002.
(6) UN-Habitat; State of the World’s Cities: Trends in Latin America & the Carribean. 2004.
(7) U.S. Department of State; 2004 Country Reports on Human Rights Practices – Brazil.  Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004.
(8) U.S. Department of State; 2004 Country Reports on Human Rights Practices – Brazil.  Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004.
(9) The Guardian; “Child Abuse Report Names Brazil Elite.” July 10, 2004.
(10) U.S. Department of State; 2004 Country Reports on Human Rights Practices – Brazil.  Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004.
(11) Organization of American States; Report on the Situation of Human Rights in Brazil. , Inter-American Commission on Human Rights, 1997.
(12) U.S. Department of State; 2004 Country Reports on Human Rights Practices – Brazil.  Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004.
(13) The Guardian; “Child Abuse Report Names Brazil Elite.” July 10, 2004.
(14) The Guardian; “Child Abuse Report Names Brazil Elite.” July 10, 2004.
(15) Goetz, Paul; “Is Brazil Complying with the U.N. Convention on the Rights of the Child?” Temple International and Comparative Law Journal, Spring 1996, p.148.
(16) See: Prillaman, William C.; The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport/London: Praeger, 2000, p.96.

Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil.

He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro.

He is also a member of the editorial board of Achegas, Brazil’s journal of political science, and Lumen Juris, a prestigious law book publisher in Brazil. His e-mail address is: augustozimmermann@hotmail.com

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