HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF BRAZIL
The Human Rights Committee has considered the second periodic report of Brazil on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.
Introducing the report, Mario Mamede, Undersecretary for Human Rights of Brazil, said the report took into account the observations, suggestions and recommendations made by the Committee after the initial report. It also covered a longer period of time, from 1994 to 2004, during which time many institutional improvements relating to the implementation of the Covenant and the policies of the Brazilian Government with regard to human rights had taken place. It updated the fulfilment of Brazil’s international obligations, and underlined its commitment to international dialogue and cooperation. The State valued the comments and recommendations that would be made by the Committee, and would keep these in mind. Through the dialogue, the Committee would be able to evaluate Brazil’s progress in the implementation, although it was clear that certain challenges remained, in particular with regards to Brazil’s federal system.
In preliminary concluding remarks, Christine Chanet, Chairperson of the Committee, said that regrettably, the report was published late, and as a result covered a very large period of time. It was not appropriately focused on the issues before the Committee. An enormous amount of information had been received on programmes and plans, and it was interesting in a way, as it showed that Brazil was aware of the issues and was trying to address problems. The Committee was responsible for making sure that the provisions of the Covenant were genuinely applied, and not how they could be applied once programmes and policies were implemented, and this was the first problem. Other concerns also remained.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, what practical forms of consultation existed and had been used in order to get to know the requirements of the indigenous populations, and how did these work, and how did these populations view the implementation of these measures and legal acts that were adopted; how Brazil intended to address the broader issue of participation in the judiciary by women, indigenous persons, and members of the Afro-Caribbean communities; issues related to transferring jurisdiction from the military to State authorities; and what measures had been taken to reduce high maternal mortality rates, particularly in rural areas and among those with low literacy levels.
The Committee will issue its formal, written concluding observations and recommendations on the report of Brazil towards the end of its session which will conclude on 3 November 2005.
Also representing Brazil were representatives of the Permanent Mission of Brazil to the United Nations Office at Geneva, the Special Secretary for the Promotion of Racial Equality of the Presidency, the General Prosecutor’s Office, the Ministry of Education, the Special Secretariat for Human Rights, the Ministry of Culture, the National Foundation for the Indigenous Peoples, the Labour Attorney’s Office, the Ministry of Justice, the Ministry of Foreign Relations, and the Ministry of Labour.
Brazil is among the 155 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 105 States parties to the Optional Protocol to the Covenant.
The Committee will reconvene at 5 p.m. on Thursday, 3 November to release its final observations and recommendations on reports reviewed this session and to close the session.
Report of Brazil
The second periodic report of Brazil gives particular consideration to the observations, suggestions, and recommendations made by the Human Rights Committee following its consideration of Brazil's initial report. It focuses on the measures adopted by Brazil in response to the Committee's principal concerns, as well as those measures intended to implement the Committee's suggestions and recommendations. The introduction presents a general analysis of the advances, obstacles, and challenges of implementing the civil and political rights set out in the Covenant. Following a general overview of the application of civil and political rights in Brazil, the second part of the report is devoted to a specific examination of the manner in which Brazil has implemented each of the rights enumerated in articles 1 to 27 of the Covenant. Because of the delays in submitting the second periodic report, the document covers the period from 1994 to June 2004.
At the international level, two important advances in Brazilian human rights policy deserve mention and they formalize the recognition of the pertinent international jurisdictional competences charged with protecting such rights. The first refers to Brazil's accession to the statute establishing the Permanent International Criminal Court, approved in Rome, in July 1998. The second advance involves the enactment of Legislative Decree no. 89, of 3 December 1998, which approved the executive branch's request to recognize the jurisdictional competence of the Inter-American Court of Human Rights. The report gives special emphasis to constitutional norms and federal laws in light of their applicability and enforceability nationwide. There are specific bodies in the federal sphere charged with safeguarding human rights that are linked to the Special Secretariat for Human Rights.
Article 5 of the 1988 Brazilian Constitution mandates the equality of all before law, without distinction of any kind, and guarantees Brazilians and foreign nationals who are Brazilian residents the inviolable right to life, liberty, equality, security, and property. The Constitution buttresses the right to equality by providing for legal penalties in cases of any discriminatory act that violates fundamental rights and liberties. The Brazilian constitutional order enshrines a series of guarantees aimed at safeguarding and restoring fundamental rights in the case of their violation. The Brazilian State guarantees all persons the right to effective remedies when the rights and liberties recognized in the Covenant have been violated. The authorities have the duty to fulfil the judicial decisions handed down.
Presentation of Report
MARIO MAMEDE, Undersecretary for Human Rights of Brazil, said that the presentation of the second periodic report underlined Brazil’s commitment to the promotion and protection of human rights. The very high-level, multisectoral delegation testified to the importance given to the Committee by Brazil and of its commitment towards ensuring dialogue and cooperation with the international instruments monitoring human rights. The second periodic report took into account the observations, suggestions and recommendations made by the Committee after the initial report. Given the delay in its presentation, it covered a longer period of time, from 1994 to 2004, during which time many institutional improvements relating to the implementation of the Covenant and the policies of the Brazilian Government with regard to human rights had taken place. It updated the fulfilment of Brazil’s international obligations, and underlined its commitment to international dialogue and cooperation.
The Government was continuing ongoing efforts to analyse, with a view to possible adoption, the two Optional Protocols, Mr. Mamede said. The State valued the comments and recommendations that would be made by the Committee, and would keep these in mind. The Secretariat for Human Rights would inform bodies at every level of the Government, and would make available a note and the full text of the recommendations. Through the dialogue today, the Committee would be able to evaluate Brazil’s progress in the implementation, although it was clear that certain challenges remained, in particular with regards to Brazil’s federal system. The list of issues addressed to the Government had served as an important instrument for the preparation for the meeting. It was important to focus on some aspects highlighted by the Committee, as well as on successful actions carried out by the State.
It should be borne in mind that human rights public policy in Brazil spanned and involved many different aspects of the Brazilian state. In order to increase awareness and introduce the priority of promoting human rights in public policies, the Special Secretariat for Policies for the Promotion of Racial Equality and the Special Secretariat for Women Policies, both linked to the Presidency of the Republic, had played a crucial role, together with the executive, legislative and judiciary branches. The issue of gender equality was a priority, and Governmental actions and programmes were generally geared towards promoting equality in work conditions without any form of discrimination. The Brazilian Constitution also recognised the indigenous communities’ specific social organization habits, languages, beliefs, and traditions, as well as their right to the lands they had occupied traditionally.
Questions by the Committee Experts
A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded orally.
Response by Delegation
Right to Self-Determination
In response to a question on recent examples of consultations with indigenous communities on the use of land affecting them, the delegation said the Constitution of Brazil recognised the right of indigenous persons to hold specific social organization habits, languages, beliefs, and traditions, as well as their right to the lands they had occupied traditionally. Indigenous communities were guaranteed permanent possession and exclusive use of lands and the products thereof. Educational policies with regard to indigenous persons were implemented with the aim of enhancing the country as a whole, and were developed in a decentralised way, with the aim of strengthening basic education, and with the participation of indigenous communities themselves, along with indigenous leaders. There had been some problems in developing these policies, but the policy itself was new. The aspirations and needs of the indigenous communities were respected. Indigenous lands were protected by banning their use, although sometimes there was a legal use of the land, which was combated seriously by the Government.
Right to a Legal Remedy for the Violation of Covenant Rights
Answering a question on how many low-income communities had had legal desks installed in them and whether that had improved access to justice for disadvantaged groups, the delegation said the judicial system in Brazil had been recognised to be a bottleneck with regards to access to justice and remedy for violations of human rights. Constitutional elements had been adopted, modifying the law, namely in order to have itinerant justice which could provide services to those who could not hithertofore access judicial services. There was a State Covenant for a more republican judicial system. This improved the legal defense system, and the itinerant courts could now go to the most remote places, reaching out to all levels of the population. The Covenant also included a monitoring system for action and enquiries. A National Human Rights Group of a provisional nature had also been set up.
Constitutional and Legal Framework within which the Covenant is Implemented
On the role of the National Human Rights Programmes in implementing Covenant rights, the delegation said there was an ongoing effort to create awareness and give more room to this in all public areas. The heads of human rights departments or municipal secretaries for human rights participated. Brazil wished to make more headway and to cover the entire national territory. From the point of view of the Parliamentary Commission on Human Rights, all local parliaments should have commissions on human rights. These had been created in large, medium and small municipalities and states. There had been programmes to ensure implementation, but all depended on the quality of dialogue in the institutional area. Some municipalities had a local plan, and tried to build human rights into their policies, and there were State Human Rights Conferences every two years, with the aim of moving towards a national conference.
Regarding the State’s consideration of a mechanism to address questions remaining from the period of military dictatorship, the delegation said there was a kind of amnesty committee, which had already judged 16,000 cases, but there were many more that remained to be dealt with, as the Government had not set any limiting date. A meeting had been held with MERCOSUR countries recently and with associated states, at which a policy had been attempted to be devised, bearing in mind the obstacles and experience of each country, and the right to memory, and a common experience was being used to create a common method, based on the progress achieved.
Principle of Non-Discrimination, Gender Equality and Protection of National Minorities
The law establishing the quota system had led to growing participation by women in political parties and in the legislative branch at many levels, including federal and local, the delegation said. The target of the quota had not been achieved, but between 1992 and 2002, there was a significant increase in the number of women who had been elected, although not enough to make women adequately represented in the three main parts of Government. Work was being done to publicise the quotas, with the idea of forcing political parties to create incentives for the participation of women in the political process. Further action was required to increase the participation of women in decision-making bodies.
There was a lack of data on women who were victims of domestic violence, the delegation said, and this was due to a number of factors - first, the lack of communication between the various players in assisting women victims of violence; second, because of the lack of training of the people involved, as a lot of police officers were not very well trained in looking out for instances of domestic violence. The National Secretariat of Public Security was carrying out a research programme to track down victims of domestic violence, in which international organizations were involved. A database of the violation of women’s rights was being created, closely linked to the Secretariat for the Development of Women’s Policies, and progress was being made in tracking down the numbers of people involved, and training was being provided to police officers who dealt with these cases.
The Government had already ratified all the fundamental human rights conventions and ILO Conventions with regards to prohibition of discrimination on gender grounds at work, the delegation said. Gender and race were areas that had to be tackled together, and had to be viewed from the aim of promoting and facilitating access to jobs. Work was being done to ensure that there was no racial discrimination in Brazil, although this was a very recent discussion in the context of the Federal Government, and had only been taking place since 2003. The principle of equality in public administration, such as with regards to affirmative action, was also quite recent. Racial equality was not expressly included in the legal order or the Constitution, but was implicit, and there was an inter-governmental effort to combat racial discrimination. Work was also being done to ensure that there was no discrimination against homosexuals, and to give more visibility to issues of equality in their regard.
Right to Life, and Prohibition of Torture and Cruel, Inhuman, or Degrading Treatment
With regards to the increase in the number of deaths caused by police action, the delegation said this was a very important question. In Brazil, the police had been among the main violators of human rights in the past, but work had been carried out to change this, and there had been a cultural revolution within the police force. There were now classes on human rights in the police academies, and this was part of the formal training of all officers. There was also a day-to-day dialogue, complementing the formal training received in the academies. A preventative educational approach was being taken, so that police officers were in the forefront of the fight to promote and protect human rights. There was a national curriculum that was monitored by the Secretariat for Public Security, and this was focusing on human rights issues. A police force could only be effective if it was well trained, and Brazil was investing heavily in materials and teachers to provide this.
Oral Questions
Committee Members then raised various questions and issues, including what practical forms of consultation existed and had been used in order to get to know the requirements of the indigenous populations, and how did these work, and how did these populations view the implementations of these measures and legal acts that were adopted; how Brazil intended to address the broader issue of participation in the judiciary by women, indigenous persons, and members of the Afro-Caribbean communities; how it intended to speed up the judicial process; and the future adoption of a Bill on Domestic Violence, which would be a step in the right direction and would have positive results on the practical side.
Response to Oral Questions
Responding to the questions posed orally by the Committee Experts, the delegation said that with regards to questions linked to indigenous issues, there was a state policy of consultation with indigenous communities. The identification of indigenous lands required consultation with indigenous communities. Another form of consultation was linked to indigenous youths, and there were other forms, including education policy and at the institutional level. The policy of the Government was to have national and regional conferences at which indigenous people were heard. A large indigenous conference was scheduled for April next year. Indigenous views were also expressed through the Ministries of Education and Culture.
The number of judges, the delegation said, was proportional to effective judicial requirements and the population concerned, according to the Constitution. The number of magistrates had been increased in the higher courts. Strategic planning for the judiciary was an essential concept, and hence, the National Council of the Public Prosecutor’s Office had been set up. The National Centre for Studies and Judicial Research was being set up. A diagnosis of the judiciary had been published in 2004. Regarding the process to expedite judicial proceedings, a joint Congressional body had been set up in order to increase access to justice and to make judicial services faster. A lot of Bills were underway, including electronic services. Undue delays could constitute harmful acts, when these were due to personal needs or intents. On the participation of indigenous women and blacks in the judiciary, the structure meant that when judges obtained their post, it was through public competition, which was a democratic way.
Regarding the reduction in the budget and how this affected human rights policy, the budgetary situation was not what would have been wished, the delegation said. Given the globalization of markets and the interdependence of economic relations, the Government had to make some tax and economic adjustments, which had caused the current budgetary cut. A huge national movement had been triggered to ensure that all children would have a basic civil registry document. Funds had been reallocated, and the National Congress could nationally amend this in order to make more resources available for human rights. In a historic social situation, there was a need to make resources fit the demand.
Questions by Experts
Committee members asked other questions and made comments on varied topics, including whether the budget cuts in the Human Rights Secretariat were due to a lowering of the status of the Secretariat within the Government, among other reasons, and whether cuts in its budget were matched by other departments; issues linked to ring-fencing and how this limited access to funds; whether indigenous tribes could sue in a federal court to ensure the respect of their lives; and issues linked to police violence and the prosecution thereof.
Response by Delegation
The delegation responded to these questions briefly, saying among other things that the States Members organized themselves in order to provide appropriate responses. The questions that required international response in Brazil mostly had some aspect of legal substance that made it possible for this to be made known to the Federal Police or Federal Justice System. In Sao Paulo, there was forced labour of Indians in the sugar cane plantations, but generally speaking there was no prevalence of Indians and Blacks in this context. Most of the persons involved were male and came from the North-Eastern States. Criminalisation of this phenomenon had made huge headway in terms of the Federal Justice System. On policies for protecting homosexual populations, work had been done to set up support and reference centres for homosexuals, and there were also specific procedures in some States for receiving complaints made against the police. There were mechanisms in place among municipalities to accompany the human rights measures being taken by Federal and State authorities.
Prohibition of Slavery or Forced or Compulsory Labour
Since 1995, the delegation said, a programme had been launched to promote the core conventions of the ILO. There was a need to pool the efforts through the Government and civil society, and a National Commission to fight slave labour had been set up, with a national plan of action to eliminate child labour. Partnerships with civil society were set up to raise awareness among, in particular, the most disadvantaged groups, on the risks of getting involved in such situations of slavery and child labour. The labour chain was examined to ensure that those who benefited from child labour did not get away with it. Forms of employment resembling slave labour were being done away with. The Legislative Branch of Government was developing laws and a Constitutional amendment had been proposed to deal with forced labour. Inspectors had been appointed and sent out to the most remote regions of the country.
With regard to Brazilian programmes to combat the sexual exploitation of children and adolescents, the delegation said a very detailed answer had been provided in writing to this effect. A serious diagnosis had been made of the situation on the basis of research, including the Federal Police, and a Parliamentary Commission had been set up to investigate. A well-structured programme had been developed, involving the Government, civil society, and private enterprises, and this focused on awareness-raising. There was a complaints process that ensured that people could ring a hotline to complain about such situations. Citizens were then given support and the whole process was free of charge. There was a programme run by the Federal Government, and one under the Ministry of Education to train teachers in detecting signs of sexual abuse.
Liberty and Security of the Person; Treatment of Prisoners
There were serious problems in the prison system in terms of conditions and capacity, and this was recognised. Brazil had identified the challenges which it needed to face in this regard, the delegation said. Some specific actions had been taken to try to improve conditions, and some positive results had been gained. Imprisonment was a State-run activity, and there were various actors involved in the system. The legislative branch of the Government had tried to focus on adopting laws on improving the situation in prisons, and this had had a certain amount of success. There was a curriculum for prisoners focusing on human rights, and efforts were made to encourage alternative community sentencing in order to get around the problem of prison capacity.
In cases of prolonged arbitrary detainment, prisoners could go to the judicial authorities, the delegation said, and there had been few cases of this. Research needed to be done throughout the country, and the Ministry of Justice was doing this. Coordination with other branches of the Government was being enhanced.
Right to a Fair Trial
On steps taken to transfer jurisdiction from military to civilian courts, the delegation said there had been a lot of resistance to this among the military, and a Constitutional Amendment had been implemented in order to confer greater impartiality to judges, allowing them to deal with military crimes against civilians. It set specific criteria for the juries in such cases. More military crimes were now judged under the chairmanship of the Council of Justice. The judge was recognised to have a certain amount of independence, and did not fall under the jurisdiction of the military courts, and this was guaranteed. Brazil recognised the need to improve mechanisms to overcome the problems it had experienced in the past.
With regard to corruption, problems had been identified in the judicial branch, and the Government was working to ensure greater impartiality and to strengthen the transparency and credibility of the judiciary, the delegation said. Rules had been adopted in this regard, with immediate disclosure of decisions, among other things. A diagnosis of the judicial branch had been made in 2004, and a Secretariat created for the reform of the judiciary. Judges had been removed from their posts for crimes against the public administration. An end had been put to the period of impunity.
Rights to Freedom of Expression, Assembly and Association
With regards to conflicts in the countryside, the delegation said there was a national strategy on this. Work was being done to prevent these conflicts from arising, and various lines of action were implemented, including building national databases. Seven different states had been covered by pilot schemes, and a Department for Agrarian Mediation set up in several states. This was done in peaceful areas, as well as in those rife with conflict. In the recent history of the Government, there had not been a single killing or death due to rural conflicts caused by State agents.
Protection of Women and Children
On infant mortality, a very detailed written reply had been given, the delegation said. This was due to a historic problem, which was inequity. Brazil had managed to significantly reduce infant mortality, due to successful policies, over the last ten years. However, success remained to be achieved in certain sectors, notably with regard to Black and Indian children, and work was being done to overcome this. There were specific policies in the field of family and community life, and nation-wide research had identified a vacuum in this regard. A National Plan in respect to this had been set up, and new population segments were being covered.
Right to Participate in Public Life
On the subject of illiteracy and disaggregated data on this, a large annex had been made available to the Committee, the delegation said.
Oral Questions
Committee Members then made further comments and raised various issues, including on arbitrary extension of sentences, and whether progress had been made in solving this anomaly; improvements in the complaints mechanism for mistreatment of prisoners in jails and how these problems were identified; issues related to transferring jurisdiction from the military to State authorities; what measures had been taken to reduce high maternal mortality rates, particularly in rural areas and among those with low literacy levels; and the need to ensure independent inquiry into issues of police criminality.
Responding to these and other questions, the delegation said with regard to detainees, in the case of arbitrary detention, there was no consolidated data. The Constitution provided that it was up to the State to provide compensation for lengthy sentences, but this could only be done at the initiative of the person who had gone through the sentence. The main concern was denunciation of mistreatment of detainees, rather than arbitration for prolonged imprisonment. There was no deliberate limitation with regards to the freedom of expression for any groups in Brazil. Groups could demonstrate freely, and the police only got involved if there was a potential for conflict. On military prosecutors and whether they could be independent and whether military justice could be opened up to the civil realm, military justice continued to exist, but the national human rights group contained representatives from the military prosecutor’s office, and what was important was that prosecutors got together and got out of the former corporatist tendencies. Work was being done to improve the economic status of judges.
Preliminary Remarks
CHRISTINE CHANET, Committee Chairperson, said the delegation had been keen to reply to everything, and not leave anything up in the air. She paid tribute to the delegation for their spirit of openness and efforts to give as much information as possible. Regrettably, the report was published late, and as a result covered a very large period of time. It was not appropriately focused on the issues before the Committee. An enormous amount of information had been received on programmes and plans, and it was interesting in a way, as it showed that Brazil was aware of the issues and was trying to address problems. At the presentation of the initial report, the impression had been that things were very difficult, and it seemed that things had changed.
The Committee was responsible for making sure that the provisions of the Covenant were genuinely applied, and not how they could be applied once programmes and policies were implemented, and this was the first problem. The Covenant also made the State party responsible for international commitments, and it was not for the Committee to tell the State how to act in order to implement the Convention throughout its various states and provinces, but to say whether it was being implemented correctly. There did seem to be some difficulties in establishing the extent to which the Federal State had responsibilities over the various municipalities. There were various positive elements, including the fight against homophobia and torture. Human rights abuses could be addressed by taking human rights problems into the Federal domain.
Concerns remained for the Committee, in particular that of impunity with regard to extrajudicial violence and torture, and the delegation had been very frank in this regard. Prevention was essential, but it was also true that to combat impunity effectively, States parties needed to move beyond that, with an independent authority to pursue complaints and make investigations. There was a need for precise information on what was happening now. With regard to judicial reforms, what was said about the continuing presence of military courts had been very interesting, and there were concerns on article 14 of the Covenant, which required courts to be impartial and independent. Military courts, even with civil judges, could still be the same, and they should not be retained. There had not been much development in land rights, but the Committee noted that violence was dropping.
For use of the information media; not an official record
CT05019E