Lawmaker at Odds With Law
At the launch of the new edition of the Child and Adolescent Statute (ECA) in February, Promotion for Child and Adolescent Rights under-secretary Denise Paiva emphasized the importance of getting the word out to society about "one of the worldís most advanced (child protection) laws and its need to be enforced. It`s a challenge for the government and the society."
Created 14 years ago, the Statute guarantees children and adolescents the right to education, medical assistance, adequate living conditions, housing, family relationships and the necessary conditions for them to exercise their rights as citizens. According to the under-secretary, many of these guarantees have yet to be enforced, leaving thousands of Brazilian young people with no alternatives except for living on the street and/or getting involved in crime.
Despite the lack of enforcement, the ECA is now being revised and could face possible alterations. Some of the most controversial changes relate to children who break the law, such as lowing the age a child can be tried as an adult, rehabilitation, length of incarceration, and re-introduction into society.
Federal Deputy Vicente Cascione, a member of the commission studying proposed changes to the statute, introduced a bill this week that would permit the incarceration of an adolescent for up to 27 years. The bill is based on the Penal Code and establishes sentences according to the gravity of the crime. If approved by the commission, the bill would then be voted on by the Constitution and Justice Commission (CCJ) before going to a full vote in the assembly.
Reeducation vs. punishment
For adolescents between the ages of 12 and 18 who commit an infraction, the ECA outlines social/educational rehabilitation measures instead of punishment, as "national and international laws consider children and adolescents in a state of physical, emotional, social, spiritual, moral and mental development," says vice-president of the National Child and Adolescent Rights Counsel (Conanda), José Fernando da Silva.
These measures are meant as warnings and may include and obligation to repair the damage done, community service, supervised probation, placement into a period of semi-probation and serving time in an education facility for a maximum of 3 three years, if necessary.
In practice, however, the majority of young people are sent directly to state juvenile detention institutions. Many of these facilities model the adult prison system and cases of torture have been documented, including in Rio de Janeiro, São Paulo and Brasilia. Here, the facilities are often overcrowded and repeat offense rates are high. In Porto Alegre, one of the few Brazilian cities where the Supervised Probation system has been successful, the repeat offense rate has not surpassed 10%.
A 2002 survey conducted by the Applied Economic Research Institute (IPEA) found that 71% of the spaces in juvenile detention centers are not adequate to carry out the educational activities required by the ECA.
The study also showed that in 2002 ten thousand adolescents had participated in rehabilitation measures. Of these, 90 % were male, 60% were black, 51% were not in school, and 49% were not working at the time of arrest.
"These findings are a response to those defending lowering the legal age limit or increasing sentences because it reveals to what extent the state and the society havenít been guaranteeing education or opportunities for introduction into the job market for everyone," writes in the magazine Revista do Terceiro Setor.
Deputyís bill makes serving time more common
Under Cascioneís proposed bill, adolescents who commit minor crime could be sentenced to up to 3 years. Offenses considered "serious," whose minimum sentence in the Penal Code is four years, could be imprisoned for up to six years. Adolescents that commit heinous crimes (such as murder) could be incarcerated for up to 27 years, the same as adults.
The deputy proposes that the time served be determined by a judge, without going to trial, and clinical and psychiatric evaluations would determine sentencing. In addition, the evaluations would also determine if the young person would be capable of assimilating the measures into his/her rehabilitation.
Those that receive the minimum sentence would undergo a re-evaluation every six months. In cases where rehabilitation is determined to have been successful, offenders would begin probation even before the sentence has been completed. If the adolescent reaches adulthood, he/she would then be evaluated for possible transfer to an adult penitentiary.
Deputy Cascione has cited teenage psychopaths to support his case."They only get out of jail after they are cured," he says. "Because there is no cure for this disease, they may stay locked up for the rest of their lives."
NGOs call the bill outrageous
Representatives from at least 100 human rights organizations are mobilizing in order to lobby deputies and attempting to bar Cascioneís bill. According to organizers, the bill is unconstitutional because it turns the measures into punishments, whereas the Constitution states minors under 18 are not punishable.
"The deputy`s bill is completely outrageous because it`s a veiled attempt to treat children and adolescents as criminals. And it`s naïve: it wants to remove the effects and not the causes (of juvenile delinquency,)" says legal advocate Dalmo de Abreu Dallari in an interview to the newspaper O Globo.
Dallari adds that currently even in cases of heinous crimes judges can still apply exceptional sentences in the name of public safety and that even after time has been served the guilty can still be held in hospitals or reeducation centers.
Lawyer Ariel de Castro Alves, a National Human Rights Movement council member, confirms that legal changes for the measures dealing with more serious crimes are already being discussed by Conanda.
Reprinted from COAV
Global Information Network on Children and Youth in Organised Armed Violence
Sources: O Globo, Jornal de BrasÌlia, Revista do Terceiro Setor ( http://rets.rits.org.br/ ), Agência Câmara.