Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997.
Brazil is a constitutional federal republic composed of 26 states and the federal district. In 1994 voters elected a new president, two-thirds of the senate, and 513 federal deputies. It was the second time since the end of military rule in 1985 that citizens freely chose their president and elected the legislative bodies in accordance with the 1988 Constitution. Fernando Henrique Cardoso became President on January 1, 1995, and is serving a 4-year term, reduced from 5 years by a 1994 constitutional amendment.
Police forces fall primarily under the control of the states. State police are divided into two forces: The civil police, who have an investigative role, and the uniformed police, known locally as the "Military Police," who are responsible for maintaining public order. Although controlled by the individual state governments, the Constitution provides that the uniformed police can be called into active military service in the event of an emergency, and they maintain some residual military privileges, including a separate judicial system. The federal police force is very small and plays little role in maintaining internal security. State police officers are charged with many serious human rights abuses.
Brazil has a market-based economy, although the Government has traditionally played a dominant role in shaping economic development. The Government is encouraging greater private sector participation in the economy through privatization of state enterprises, deregulation, and removal of impediments to competition. Industrial production, including mining operations, and a large and diversified capital goods sector, accounts for approximately 34 percent of gross domestic product (GDP); agriculture contributes about 13 percent. Brazil exports both manufactured and primary goods. Among the principal exports are coffee, soybeans, textiles, leather, metallurgical products, and transportation equipment. GDP was $563 billion in 1995, and the economy grew at a rate of 4.1 percent. The large gap in income distribution narrowed slightly in 1995. The poorest tenth of the population earned 1 percent of national income, compared with 0.7 percent in 1993, while the richest tenth earned 47.1 percent, down from 49 percent in 1993.
The most serious human rights abuses continued to be extrajudicial killings and torture. State police killed 19 landless workers in southern Para in April; they summarily executed at least 10 of the victims. In urban areas, the police are frequently implicated in killings and abuse of prisoners, but special courts for the uniformed police are, in many cases, overloaded, rarely investigate effectively or bring fellow officers to trial, and seldom convict abusers. This separate system of special state police courts contributes to a climate of impunity for police elements involved in extrajudicial killings or abuse of prisoners and is thought to be the single largest obstacle to eliminating such abuses by police. It is too early to tell what may be the effect upon impunity of the new legislation giving civil courts jurisdiction over crimes of intentional homicide committed by uniformed police officers.
The poor bear the brunt of most violence, whether committed by the police or by criminals. Prison conditions range from poor to harsh. The judiciary has a large case backlog and is often unable to ensure the right to a fair trial. Justice is slow and often unreliable, especially in rural areas where powerful landowners use violence to settle land disputes and influence the local judiciary. Violence against homosexuals and women and discrimination against women and minorities are problems. Child prostitution is also a problem. Despite constitutional provisions safeguarding their rights, indigenous people continue to be victimized by outsiders who encroach on Indian lands and to be neglected by governmental authorities. The authorities do not adequately enforce laws against forced labor, and the sugar and charcoal industries exploit children. A free press and active human rights organizations expose abuses and demand action to stop them.
The Government introduced an action plan to address human rights abuses, but many human rights groups expressed concern about congressional opposition to some elements of the plan and about what specific means would be used to accomplish its goals. President Cardoso created an interministerial group in late 1995 to fight what he publicly acknowledged as Brazil's serious problem with racism and discrimination. In addition, the Government has increased significantly the number of roving inspectors charged with clamping down on forced labor, and it launched a national effort, in partnership with state governors and local organizations, aimed at eradicating child labor. The government tourist agency embarked on a nationwide campaign against sex tourism and the attendant problem of child prostitution. However, the increased commitment by politicians at the national level still has not had a significant impact in many of the states where human rights violations are most common.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
Extrajudicial killings continued to be a serious problem throughout the country. In urban areas, a high crime rate, a failure to apprehend most criminals, and an inept criminal justice system all contribute to public acquiescence in police brutality and killings of criminal suspects.
According to the newly created Sao Paulo police ombudsman office, police killed 119 citizens in the first 6 months of 1996, a figure that does not include persons who are wounded and die later in a hospital. The figure reflects both the city's high level of violent crime and excessive use of force by the police. Many Sao Paulo-based human rights groups claim that the uniformed police, who openly doubt the judiciary's ability to convict those they apprehend, often decide to summarily execute suspected criminals rather than apprehend them.
In May the authorities arrested a Sao Paulo police officer, Jose Rogerio de Araujo Felismino, and his brother and charged them with the murder of a prominent AIDS activist; they were awaiting trial at year's end. In a separate case, Sao Paulo police badly beat 36-year-old Jaerte Antonio at his home, where a drunk Antonio had threatened his mother with violence. They took Antonio to a hospital, where he died soon afterward. The police Inspector General is investigating Antonio's death but had charged no one by the end of the year. In February police shot a man in the coastal town of Peruibe, Sao Paulo, twice after his arrest on drug possession charges. According to the man's family, the police shot him while in custody, later tortured him, then took him to a hospital, where he died 3 days later from his injuries. An internal police investigation was still in progress at the end of the year.
By mid-December, there had been 155 victims in 47 instances of "mass murder" in Sao Paulo. Although suspects had been identified in only 10 of these execution-style killings, most appeared to be perpetrated by criminal gangs and drug traffickers. Human rights monitors and public prosecutors believe that police are responsible for some of the unresolved cases, which often result from police involvement in drug deals gone awry or from retaliation for witnesses' cooperation with prosecutors or investigators. These monitors point as evidence to the wave of arrests of low-ranking police officers, and some senior officers, in the first half of the year for involvement in a variety of criminal activities. For example, the authorities arrested 4 military police officers, all members of the elite "Rota" strike force, and charged them with the murders of 25 people in 6 separate massacres, and with 3 bank robberies. The leader of the four, Hellmans Hoffman de Oliveira, was known as "Robocop" because he illegally carried a .45 caliber revolver. The gang members are under detention pending trial in a civil court.
Sao Paulo Governor Mario Covas continued to push for reforms intended to curb abuses by the state police. He appointed human rights activists as his attorney general and secretaries of public security, justice, and state prisons; he also created Sao Paulo's first civilian police ombudsman. The ombudsman has been effective in calling attention to police abuses and bringing to trial criminal elements within the police. From November 1995 through June--principally due to the ombudsman's efforts--Sao Paulo police opened more than 100 internal criminal investigations; prior to 1996, the annual number of internal investigations had never exceeded 40. Private citizens seemed to take full advantage of the opportunity to lodge complaints, as the ombudsman's office received an average of 90 calls a week on its toll-free telephone number. The ombudsman convinced the police to increase community patrols in peripheral neighborhoods, where violence is common, while the state public security secretary added courses on human rights and discrimination to the civil police training curriculum. In addition, since September 1995, Sao Paulo police officers who kill citizens are removed from their jobs and obliged to participate in a program in which they receive psychological counseling as well as classes on community policing, abuse of power, and the Penal Code. According to the weekly magazine Veja, the number of people killed by Sao Paulo police dropped from an average of 33 per month when the program was instituted to 18 per month by the end of March.
Acts of intimidation often hindered investigations, including death threats against witnesses, prosecutors, judges, and human rights monitors. In May Valdemir Lima de Oliveira, a witness against three policemen accused of corruption, was murdered as he was leaving a Sao Paulo police station after giving a deposition. The civil police chief in Franco da Rocha, and members of his staff, have received death threats since beginning their investigation of the clandestine dumping site for the victims of death squads; one investigator resigned as a result.
At least 596 minors in Rio de Janeiro were victims of homicide in 1995, according to the Rio-based Advanced Institute for Religious Studies. Execution-style killing of street children continued in 1996, but comprehensive statistics were not available. On April 23, two unidentified street youths were shot at point-blank range in the head and neck in Rio de Janeiro's affluent Laranjeiras neighborhood. The use of unprofessional autopsy procedures and inexplicable delays in the investigation led human rights groups to suspect that the murders were the work of police officers. No suspects have been identified.
In early March, three street children--Gilmar Ferreira de Franca, 14, Jamil Martins Murilo, 15, and Junior Santos Marques Lelo, 17--were found dead in the Taquaril neighborhood of Belo Horizonte. Their hands were tied, and they had been shot in the
back. A group calling itself "Reaction" claimed responsibility,
writing in a note that the minors had been killed to protest the low salaries paid to civil police. According to human rights groups in Belo Horizonte, there is significant evidence that Reaction is composed of active duty and former police officers. A police investigator charged one police officer in the slaying and said that several others are under investigation.
The number of citizens killed in conflicts with Rio police rose significantly. According to the daily newspaper Jornal do Brasil, prior to June 1995, an average of 3.2 persons per month were killed by police, while that figure rose to 20.5 per month in the first 6 months of 1996. Human rights groups blame financial awards and promotions for police "bravery," instituted in November 1995 by Nilton Cerqueira, the Rio state secretary for public security, for encouraging police to use excessive force. When the Brazil-based representative of Human Rights Watch/Americas privately urged Cerqueira to announce that he would give the awards only to police officers who brought in suspects alive, Cerqueira reportedly replied that the important point was that criminals should be stopped, dead or alive.
In June the President of the Federal Chamber of Deputies human rights committee visited Manaus, the capital of Amazonas state, to urge state officials to investigate the activities of a death squad known as "the firm." According to the state bar association, local human rights organizations, and a state prosecutor, current and former police officers comprise this group, which is involved in summary executions, illegal arrest, torture, and drug trafficking. The death squad is suspected, among other crimes, of executing 20 people and torturing 8 adolescents in the first 6 months of 1996.
A deputy prosecutor general in Brasilia recommended that the President order federal intervention in the western state of Acre to prevent the systematic violation of human rights there. Federal prosecutors in Acre reported that there had been a "dizzying increase in urban violence" during the previous 2 years, due almost exclusively to widespread human rights violations committed by the state's uniformed police. The situation worsened dramatically on June 30, when convicted drug trafficker Jorge Hugo shot and killed Itamar Pascoal, a police officer and brother of a state deputy (and retired policeman) Hidelbrando Pascoal. Hugo went into hiding, while the police, under the personal command of Hidelbrando Pascoal (according to the prosecutors' report), went on a rampage of kidnaping, torture, and murder. The federal prosecutors' report quoted Hidelbrando Pascoal as saying he would kill Hugo and anyone who had helped him to escape. The state governor was unwilling or unable to exercise any control over the military police.
The Permanent Forum Against Violence, a human rights organization in the northeastern state of Alagoas, condemned what it called an "uncontrollable rise in criminality and brutal disrespect for human rights" in the state and involvement by elements of the public security apparatus. The Forum reported that 192 murders were committed in the state in the first 3 months of 1996, a 21 percent increase over the same period in 1995. Suspects were identified in only 47 cases, 25 percent of whom were military or civil policemen.
The state police killing of 19 landless workers on April 17 in El Dorado de Carajas, in the northern state of Para, illustrates the tensions created by land invasions and the excessive violence often used by policemen in dealing with squatters. Several hundred landless workers blocked a highway to focus attention on the group's demand to be resettled, and to have state officials provide food and buses to take the marchers to Belem, the state capital. The state authorities sent 157 policemen to clear the highway. After erecting barricades on either side of the protestors, the police launched canisters of tear gas into the crowd and fired machine guns into the air to disperse it. It is unclear who began firing first--each side accused the other--but the police opened fire with machine guns from both sides of the crowd. Autopsy reports subsequently revealed that 10 of the victims had been summarily executed; 3 had been shot at point-blank range, and 7 had been killed with knives or sickles. The authorities charged all 157 policemen involved in the massacre with intentional homicide and will try them in a civil court.
Human rights groups cite the high level of crime and the failings of the judicial system as contributing factors to public tolerance of vigilante lynchings of suspected criminals. According to the daily newspaper Correio Braziliense, citizens lynched 22 people in the northeastern state of Bahia, usually the leader among states in this category, through mid-December. In an incident on September 3, 15 bus passengers in the city of Salvador beat to death a man who had tried to rob 2 couples riding on the bus.
In rural areas, new conflicts between rural landowners and the landless intensified in 1996, in part due to land invasions organized by the rural Landless Workers' Movement (MST) to pressure the federal Government to speed up settlement of landless families. The MST illegally occupied hundreds of plots of land identified as unproductive, blocked highways, and occupied government buildings, raising tensions and increasing confrontations with landowners, their gunmen, and, in many cases, policemen. Forty-five people died in land disputes in the first 8 months of 1996. Such killings usually go unpunished, because the landowners thought to be responsible for many of them often control the police in isolated areas, and intimidate local judges and lawyers with violence and threats of violence.
After significant pressure from human rights groups, the governor of the northeastern state of Rio Grande do Norte suspended his assistant secretary for public security, Maurilio Pinto de Medeiros, pending clarification of his involvement in serious human rights abuses. The most serious allegation against Medeiros is that he is suspected of heading a death squad composed of uniformed and investigative policemen, according to a report by a special commission of prosecutors formed in May 1995 to investigate the many allegations against Medeiros. As a result of the commission's investigation, the authorities filed a number of criminal complaints against Medeiros in a local court, but no trial date has been set. Francisco Gilson Nogueira, a prominent local human rights attorney and public critic of Medeiros, was fatally shot on October 20. The federal police are investigating the case but had not arrested any suspects at year's end.
The authorities charged the commander and 19 other police officers involved in the August 1995 massacre of 9 squatters in Corumbiara, Rondonia, with intentional homicide, meaning the accused will be tried in regular courts rather than a special police tribunal. They also charged four squatter leaders with intentional homicide for the deaths of two policemen, as well as for the deaths of the nine squatters. The authorities justified the latter charges by declaring that the leaders were responsible for the land invasion that sparked the confrontation. The medical examiner reported that most of the squatters killed had been shot in the back at short range and that many of the bullets had traveled from the top of the body downward, indicating that the victims had been killed from behind while kneeling.
In April a court convicted Rio de Janeiro police officer Marcos Vinicius Emmanuel for his involvement in the 1993 massacre of eight street children in downtown Candelaria square after he confessed to the crime, and sentenced him to 309 years in prison (reduced to 89 years on appeal). The courts convicted another policeman, Nelson Cunha, on similar charges in November and sentenced him to 261 years in prison. Cunha has the right to a retrial, but no date has been set. The trial of a third policeman, Marcos Aurelio Alcantara, who also confessed his involvement in the Candelaria killings, is set for May 1997. Candelaria survivor and key witness Wagner dos Santos identified policeman Carlos Jorge Liaffa Coelho as one of those who shot him. Although the authorities briefly detained Liaffa after they found a gun reportedly used in the massacre in his father's home, they subsequently released him for lack of evidence. A jury acquitted three of the original suspects in the case on December 10, at the request of both the prosecution and the defense, even though Dos Santos had consistently maintained that one of them was involved in the killings.
The investigation of police gang members accused of murdering 21 Vigario Geral residents in 1993 continues to progress slowly.
In March the Sao Paulo civil police's Department of Homicides and Personal Protection (DHPP) took over the investigation from the local police in the case of Franco da Rocha, one of Sao Paulo state's poorest communities, and location of a clandestine dumping site for the victims of death squads. Since 1993 at least 212 bodies have been found there, 50 victims killed with bullets to the head, while the arms and heads of some of the bodies had been removed in an apparent attempt to conceal the victims' identities. Investigators succeeded in identifying most of the victims, and linking them to previously unexplained disappearances. By year's end, the DHPP had not arrested or charged any suspects, but both human rights groups and Franco da Rocha police agreed that a thorough investigation was being conducted.
Progress in the investigation of the 121 Sao Paulo police accused of the 1992 Carandiru prison massacre was effectively stalled by disagreement over which court had jurisdiction--the special police courts or a civil court. The legislation signed in August by President Cardoso transferring all trials of uniformed police charged with intentional homicide to regular courts is likely to apply to the defendants in the Carandiru case. The Inter-American Commission on Human Rights (IACHR) began censure proceedings against the Government in October for its failure to punish those responsible for the Carandiru killings. However, the expected transfer of the case to ordinary courts, and the human rights reforms being implemented by the state government, led the IACHR to suspend consideration of censure.
In a high profile Sao Paulo case--the "42nd Delegacia"--uniformed and civil police were accused of the 1989 murder of 18 prisoners asphyxiated when police crammed 51 prisoners into a tiny, unventilated cell as punishment. Although the civil police defendants have been tried and sentenced in civil court, the 7-year-old case against the uniformed police officers continues to languish in the special police tribunal. In March the IACHR censured the Government for the lack of progress in bringing to justice those responsible for the 42nd Delegacia massacre.
In the Chico Mendes murder case, almost 3 1/2 years after his convicted killers escaped through the front door of a penitentiary in the western state of Acre, where they had been serving a 19-year sentence for the 1988 murder of the renowned rubber tapper and rural union leader, federal police agents recaptured Darly Alves da Silva in southern Para on June 30 and his son Darci on November 25. Both men were returned to prison.
The case of the 1985 murder of Joao Canuto, the first president of the rural workers union in Rio Maria, Para, has been in the state prosecutor's office awaiting a trial date since August 1993, 8 years after the beginning of the investigation. No one has been charged in the case.
There were no reports of politically motivated abductions. However, human rights groups often blamed the police or vigilante groups for the disappearance of street children or persons believed to be criminals.
On January 10, an eyewitness in a rape case against a Sao Paulo police officer disappeared. Shortly after she and the victim reported the December 1995 rape, the witness began receiving threats. By midyear the rape investigation was in progress, and both the civil police and police ombudsman were investigating the disappearance.
In 1995 Congress passed legislation recognizing and assuming government responsibility for the deaths of 136 political activists who "disappeared" during the military regime while in the custody of public officials, and obligating the Government to pay indemnities of between $100,000 and $150,000 to each of the families. The law created a commission to determine the amount of each indemnity and to evaluate additional requests from families who believed that they might qualify as well. By mid-December, the commission had approved 108 additional indemnity requests and rejected 43, with 84 cases still pending.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution prohibits torture and contains severe legal penalties for torture or acquiescence in it. The Penal Code fails to define torture, however, and there are frequent credible reports that police beat and torture criminal suspects to extract information, confessions, or money. Such torture can result in death (see Section 1.a.) The Government estimated in its 1994 report on the internal human rights situation that fewer than 10 percent of cases of mistreatment by police are reported. Victims are generally poor, uneducated about their rights, and--most of all--afraid to come forward for fear of reprisals.
Fabio Luciano dos Reis, age 20, and Emerson Moreira da Silva, age 21, accused Sao Paulo policemen of beating them in March. Reis further alleged that police had held him down and "scalped" him; he was later treated at a Sao Paulo hospital for knife wounds to the skin covering the cranium. Three officers were charged with the crime. In a case that received widespread media attention, the authorities charged 11 Sao Paulo policemen with causing bodily injury and abuse of authority in the alleged torture of a couple in October 1995. The police officers raided the house of Messias Francisco de Souza, age 63, and his wife, Dirce Maria Anacleto, age 52, in the mistaken belief that the couple had been involved in the recent murder of a policeman. They subjected De Souza and Anacleto to kicks, electric shocks, and beatings with pistols, sticks, and fists. At year's end, the 11 policemen were awaiting trial, and the authorities were protecting the couple, who complained of receiving threats.
Mario Cesar Machado Monteiro, a military court judge in Rio de Janeiro, acquitted two army captains accused of torturing an army corporal who had deserted during "Operation Rio," the 1995 joint army-police operation against crime and drug trafficking in Rio, despite evidence suggesting that the captains had used smothering and other forms of torture on the corporal. The judge, however, justified his decision by ruling that "the necessary rigor was used to intimidate the corporal into admitting his involvement in drug trafficking." Human rights groups widely criticized the ruling.
Prison conditions range from poor to harsh. According to the Government's 1995 penitentiary census, the overcrowded prisons held 129,169 inmates in space designed for 59,954. There are often six to eight prisoners in a cell meant for three; some prisoners force others to pay for the use of a bed. Due to the severe overcrowding in prisons, police stations are often used as prisons, where sentenced criminals share cells with detainees.
Sao Paulo's prison system in particular suffers from chronic overcrowding, corrupt and abusive local prison management, and prisoner access to weapons and drugs. The police precincts and state's 43 penitentiaries--the majority of them dilapidated and dirty--house 68,500 prisoners in facilities designed to hold less than 32,000. Discipline is difficult to maintain under such conditions, and prison officials often resort to inhuman treatment to maintain order. A report issued in April by the Sao Paulo state assembly revealed extremely harsh prison conditions, including rat- and mosquito-infested cells, lack of sanitary facilities, and kitchens that served raw or spoiled food. Scabies and tuberculosis, diseases not common in the general population, are endemic in Sao Paulo prisons. The report indicated that denial of first aid and other medical care is sometimes used as a form of punishment.
In the second half of the year, the severe overcrowding in Sao Paul prisons led to an increase in the number of prisoner revolts and the violence associated with them. An October riot at Carandiru prison left four prisoners and one guard dead, while in November, police killed four prisoners when they quelled an uprising at a prison in Praia Grande. A total of 1,442 prisoners escaped from Sao Paulo's prisons through the end of June. A surge in crime rates among minors has overwhelmed juvenile detention facilities, where conditions are no better than in regular prisons.
The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
The Constitution limits arrests to those caught in the act of committing a crime or those arrested by order of a judicial authority. The authorities usually respect the constitutional provision for a judicial determination of the legality of detention, although some convicted inmates are held beyond their sentences due to poor record keeping. The law permits provisional detention for up to 5 days under specified conditions during a police investigation, but a judge may extend this period. According to groups that work with street children, however, the police sometimes detain street youths illegally without a judicial order or hold them incommunicado.
The Constitution prohibits forced exile, and it is not practiced.
e. Denial of Fair Public Trial
The judiciary is an independent branch of government, but in many instances it is unable to ensure the right to fair trial.
The judicial system, with the federal Supreme Court at its apex, includes courts of first instance and appeals courts. States organize their own judicial systems but must adhere to the basic principles in the federal Constitution. There is also a system of specialized courts dealing with police, labor, elections, juveniles, and family matters.
Special police courts have jurisdiction over state uniformed police; the record of these courts shows that punishment is the exception rather than the rule. A human rights group in the northeast, studying police crimes against civilians tried in police courts from 1970 to 1991, found that only 8 percent of the cases resulted in convictions. In Sao Paulo, another study found that only 5 percent of cases resulted in convictions. The courts (which are separate from the courts-martial of the armed forces, except for the final appeals court) are composed of four ranking state uniformed police officials and one civilian judge. With too few judges for the caseload there are backlogs, and human rights groups note a lack of zeal among police charged with investigating fellow officers.
In August the President signed legislation giving ordinary courts jurisdiction over cases in which uniformed police officers are accused of intentional homicide against civilians. Human rights groups are dubious about the new law's likely impact on impunity, since it is the internal police investigation that determines whether the homicide was intentional or not, and the police tribunal that decides whether to forward a case to civil court for trial.
Defendants are entitled to counsel and must be made fully aware of the charges against them. According to the Ministry of Justice, approximately 85 percent of prisoners cannot afford an attorney. In cases in which a defendant cannot afford an attorney, the court must provide one at public expense; courts are supposed to appoint private attorneys to represent poor defendants when public defenders are unavailable, but often no effective defense is provided. Juries try only cases of willful crimes against life; judges try all others.
The right to a fair public trial as provided by law is generally respected in practice, although in rural areas the judiciary is generally less capable and more subject to the influence of local landowners, particularly in cases related to indigenous people and rural union activists. Similarly, local police are often less zealous in investigating, prosecutors are reluctant to initiate proceedings, and judges find reasons to delay when cases involve gunmen contracted by landowners to eliminate squatters or rural union activists.
The need for judicial reform is widely recognized because the current system is inefficient, with backlogs of cases and shortages of judges. Lawyers often drag out cases as long as possible in the hope that an appeals court might render a favorable opinion and because they are paid according to the amount of time they spend on a case. According to the Institute of Economic, Social, and Political Studies of Sao Paulo, however, 90 percent of appeals court decisions confirm decisions made in lower courts. Low pay, combined with exacting competitive examinations that in some years eliminate 90 percent of the applicants, make it difficult to fill vacancies on the bench. The system requires that a trial be held within a certain period of time from the date of the crime (similar to a statute of limitations). However, due to the backlog of cases, old cases are frequently dismissed. According to a former judge, this encourages corrupt judges purposely to delay certain cases, so that they can be dismissed.
A federal law approved in September 1995 created small claims courts to handle, and resolve quickly, less serious criminal and civil cases. In Sao Paulo, the new courts resolved 80 percent of their cases within 60 days, and cleared from the state docket some 45,000 backlogged cases.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides for freedom from arbitrary intrusion into the home, although wiretaps authorized by judicial authority are permitted. There were no reports of illegal entry for political reasons, but illegal entry into homes without a warrant occurs in searches for criminal suspects. The inviolability of private correspondence is respected. The law regulating the conditions under which wiretaps may be used appears to strike a fair balance between giving the police an effective law enforcement tool and protecting the civil liberties of citizens. Several test cases are required, however, to determine whether that balance is maintained in practice.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The 1988 Constitution abolished all forms of censorship and provides for freedom of speech and a free press. The authorities respect these rights in practice. Newspapers and magazines, which are privately owned, vigorously report and comment on government performance. Both the press and broadcast media routinely discuss controversial social and political issues and engage in investigative reporting.
Most radio and television stations are privately owned; but the Government has licensing authority, and politicians frequently obtain the licenses. Many television and radio stations are owned by current or former congressmen, some of whom are or were members of the committee overseeing communications. It is difficult to determine how many media outlets are indirectly controlled by politicians since concessions are often registered in the names of family members or friends linked to them. In addition, concessions are regularly transferred to other names, with little oversight by the Government.
The penalty for libel under the 1967 press law--a prison term--is considered extreme by judges. Press criticism has described it as an archaic and authoritarian law inherited from the military regime. Congress has considered, but has not yet eliminated, the press law's provisions for prison terms.
There were reports of harassment against journalists. According to the Inter-American Press Association, radio commentator Carlos Alberto Salvador received death threats from the mayor of Boa Viagem, in the northeastern state of Ceara, after denouncing a number of irregularities in the mayor's administration. Salvador filed a criminal complaint with the state secretary of public security in January. On January 24, a police officer, Major Adalberto Carvalho de Souza, tried to prevent the Recife-based newspaper, Jornal do Comercio, from reporting the arrest of a sergeant from his battalion, who was accused of stealing 10 cases of beer from a supermarket. Late on the night of February 19, two shots were fired through the windows of the central office of the national daily newspaper Jornal do Brasil, based in Rio de Janeiro. Only six journalists were in the building at the time, and none was injured. The police are investigating but have identified no suspects. On May 15, reporters Warner Filho and Tina Coelho, of the Brasilia daily Correio Braziliense, were covering police carrying out an eviction order of squatters in Cristalina, Goias. When the reporters tried to photograph police destroying six temporary shelters erected by the squatters, the police handcuffed and beat them and arrested them for obstruction of justice and disrespect for authority.
Foreign publications are widely distributed in Brazil; prior review of films, plays, and radio and television programming is practiced only to determine a suitable viewing age.
Academic freedom is respected.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right to assemble peacefully, and the Government respects this right in practice. Permits are not required for outdoor political or labor meetings, and such meetings occur frequently.
The Constitution also provides for the right of freedom of association, and the Government respects this right in practice.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice. There is no favored or state religion. All faiths are free to establish places of worship, train clergy, and proselytize, although the Government controls entry into Indian lands.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
There are no restrictions on movement within Brazil, except for the protected Indian areas, nor are there any restrictions on emigration or return. A parent, however, is not allowed to leave the country with children without the permission of the other parent.
The Government cooperates with the office of the United Nations High Commissioner for Refugees (UNHCR) in assisting refugees. The Government does not provide first asylum; rather, those physically present in the country whom the UNHCR determines to be refugees are accepted for resettlement. In 1996, 375 people applied for refugee status. The Government approved 115 applications, denied 167, and decisions were pending on the others at year's end. There were no reports of forced repatriation of persons to countries in which they feared persecution.
Section 3 Respect for Political Rights: The Right of Citizens to Change their Government
The Constitution provides for the right of citizens to change their government through free elections, and citizens most recently exercised this right in 1994, filling executive and legislative offices throughout the country. Voting is secret and mandatory for all literate Brazilian citizens age 18 to 70, except military conscripts who may not vote. It is voluntary for minors age 16 to 18, for the illiterate, and for those age 70 and over.
Women have full political rights under the Constitution and are becoming active in politics and government. However, they comprise only 6.5 percent of the national Congress; 34 women serve in the Chamber of Deputies (out of 513 seats), and 6 serve in the Senate (out of 81 members). In the 1994 elections, voters elected one female governor. To boost the participation of women in government, Congress passed legislation requiring that 20 percent of each party's candidates in the 1996 municipal elections be women. In November voters in Sao Paulo elected the city's first black mayor. The 1988 Constitution gave Indians the franchise, but their ability to protect their own interests is severely limited (see Section 5).
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Nongovernmental organizations (NGO's) actively investigate allegations of human rights violations and often initiate legal proceedings. Government officials are generally cooperative with them. Several international NGO's either maintain offices in Brazil or visit periodically. In a 10-day visit to Brazil in August, the executive director of Human Rights Watch/Americas
identified a number of areas of concern but found the federal officials open in discussing human rights problems. Government offices such as the Ministry of Justice's secretaries for citizenship and human rights and the federal prosecutor's office respond readily to inquiries about human rights cases and launch their own investigations.
Both the federal and some state governments formed partnerships with NGO's in a number of significant initiatives. For example, the Ministry of Justice asked the University of Sao Paulo-based Nucleus for the Study of Violence to draft the national human rights action plan. In addition, in a series of seminars around the country, the Government solicited the input of a broad range of human rights groups for the final version of the plan, announced by President Cardoso in May. The northeastern state of Pernambuco created a witness protection program, the first in Brazil, to protect witnesses or victims of violent crimes. Development and administration of the nascent program was the result of a unique partnership between the state government and GAJOP, a human rights NGO.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
Discrimination on the basis of sex, race, religion, and nationality is unconstitutional, yet women, blacks, and indigenous people continued to experience discrimination. The International Labor Organization (ILO) notes that important differences in wages continue to exist to the detriment of women and blacks, particularly in rural areas.
There continued to be reports of violence against homosexuals, although it was not always clear that the victims' sexual orientation was the reason. The Grupo Gay da Bahia, Brazil's best known homosexual rights organization, reported that 65 homosexuals were killed in the first 7 months of 1996, but the group's report did not specify whether all the victims were specifically targeted because they were homosexual or were killed for other motives. Ten homosexuals were murdered, and 3 disappeared, in Brasilia in the first 7 months of 1996. Most were apparently the victims of male prostitutes, some of whom reportedly were low-ranking soldiers trying to earn extra money.
There were several attacks by neo-Nazi skinhead groups in cities in southern Brazil. In March neo-Nazi skinheads murdered Carlos Adilson de Siqueira, a 23-year-old gay black man, in the southern city of Curitiba. The confessed killer, a 17-year-old office boy, was a member of "Carecas do Brasil," a skinhead gang composed of adolescents from well-off families. The group denied that it targets blacks but admitted to persecuting homosexuals and drug addicts. According to the Curitiba police, at least three neo-Nazi groups, totalling about 30 members, were active in Curitiba. In June a gang of some 30 neo-Nazis stormed into two gay bars in Sao Paulo, assaulted many customers, and killed a gay artist, Nilton Verdini Silva. No one has been charged for Silva's murder.
There is a high incidence of physical abuse of women. Most major cities and towns have established special police offices to deal with crimes against women, including 124 cities in Sao Paulo state, 54 in Minas Gerais, and 5 in the state of Rio de Janeiro. The special police office in Brasilia has seen a steady increase in reports of crimes against women during the last 6 years, from 1,003 in 1992 to 3,818 in 1995, and 2,404 in the first 7 months of 1996. Police and social workers attribute the increase in reported complaints not to a rising level of violence against women, but to greater awareness by women of their rights and less willingness to tolerate abuse than in the past. The Brasilia office produced and distributed widely a pamphlet containing tips for women on how to avoid being raped, which played an integral role in making women throughout the Federal District aware of the special office's services. The office for protection of human rights in the Belo Horizonte mayor's office noted a "frightening escalation of violence against women" in that city. In the first 5 months of 1996, 90 rapes, 68 murders of women, and 1,237 cases of bodily harm were reported to Belo Horizonte police stations.
In rural areas, abused women have little recourse since there are no specialized police offices available to them. Men who commit crimes against women, including sexual assault and murder, are unlikely to be brought to trial. Although the Supreme Court in 1991 struck down the archaic concept of "defense of honor" as a justification for wife murder, courts are still reluctant to prosecute and convict men who attack their wives. In April the Supreme Court voted to absolve a man convicted by a lower court of rape for having sexual intercourse with a 12-year-old girl. Even though the age of consent is 14, the court stated in its ruling that the man had not committed a crime because the girl had given her permission. One federal deputy praised the "courage" of the court's decision and introduced a bill to lower the age of consent from 14 to 12.
The Constitution prohibits discrimination based on sex in employment or pay and provides for 120 days of paid maternity leave. However, the provision against wage discrimination is rarely enforced. According to the most recent official statistics, women earn, on average, 54 percent of the salaries earned by men. A recent study by a sociologist showed that women who started working in positions in which they earned twice the minimum wage advanced in pay after 10 years to a wage of seven times the minimum wage. Men starting in the same positions earned 2.6 times the minimum wage and advanced to a wage of 10.9 times the minimum wage after 10 years. A Ministry of Labor survey revealed that the average starting salary for high school-educated women in Sao Paulo hired between January and May was about $850, fully one-third less than the $1,300 average starting salary for high school-educated men during the same period.
In Sao Paulo in early September, several thousand students took the entrance exam to become judges. According to the daily newspaper Folha de Sao Paulo, women wearing pants were not allowed to take the exam, as test administrators told them that they were not dressed in accordance with the "tradition of the judiciary."
In response to the maternity leave law, some employers seek sterilization certificates from female job applicants or try to avoid hiring women of childbearing age. Hoping to clamp down on such practices, President Cardoso signed a law in April 1995 prohibiting employers from requiring applicants or employees to take pregnancy tests or present sterilization certificates. Employers who violate the law are subject to a jail term ranging from 1 to 2 years, while the company must pay a fine equal to 10 times the salary of its highest paid employee.
Despite progressive laws to protect children and a growing awareness of their plight through media and NGO campaigns, millions of children continue to fail to get an education, must work to survive, and suffer from the poverty afflicting their families. In a positive development, a report issued by the Brazilian Institute for Geography and Statistics (IBGE) stated that the number of children between the ages of 10 and 14 who were employed decreased by 163,000 from 1993 to 1995. However, more than 3 million children in the same age range continue to work, many of them together with their parents, under conditions approximating forced labor or debt bondage (see Section 6.d.). Many other children beg on the streets of cities.
There are no reliable figures on the number of street children, some of whom are homeless, but the majority of whom return home at night. In Rio de Janeiro, an organization aiding street children estimated recently that 30,000 frequent the streets by day but probably less than 1,000 sleep there. NGO's have made enough shelters available for homeless children, but some children prefer the freedom and drugs that street life offers. In Sao Paulo, NGO's aiding street children estimated that some 12,000 children roam the streets by day and that from 3,000 to 5,000 of them live permanently on the streets. The NGO's report that extreme poverty at home or sexual abuse by fathers and stepfathers are the principal reasons so many children choose to live on the streets. An IBGE study reported that 47 percent of Sao Paulo children come from families that earn less than $200 per month.
Because street children have a high rate of drug use and have been involved in assaults and robberies, a significant portion of the public supports harsh police measures against them, viewing the issue as one of crime and security, not human rights. Of the 562 reported homicides in the northeastern state of Pernambuco in the first 8 months of 1995, 10 percent of the victims were under 18 years of age. A local human rights group suspects that many of these minors are killed by off-duty policemen and private security guards hired by area businessmen to rid their areas of street children. Rio de Janeiro's Advanced Institute for Religious Studies reported that 596 minors were murdered in Rio in 1995, a significant increase from the 513 killed the previous year. Federal, state, and local governments devote insufficient resources to street children. NGO's sponsor relief efforts, but demand far outstrips available resources.
In January Embratur, the national tourist agency, embarked on a national campaign against sex tourism and child prostitution, a significant problem throughout Brazil, but particularly prevalent in the major tourist cities in the northeast. The agency banned the use of images of scantily clad women in its promotional materials, and launched a nationwide program, in conjunction with private travel agencies and NGO's, to warn hotel guests of the prohibition on sex with minors by placing posters inside their rooms. Through a series of workshops, Embratur also attempted to educate travel agents and state tourism agencies about existing legislation on child prostitution. The government of the Federal District launched a comprehensive program, "Brasilia Crianca," aimed at combating the sexual exploitation of children. The program involves a broad range of concrete actions, including creating a 24-hour number for reporting cases of sexual abuse; creating a special police office to investigate sexual crimes against children; requiring schools to discuss violence against children; requiring the formation of teams within each clinic and hospital trained to treat child victims of violence or sexual abuse; and developing formal education classes and professional training for adolescents from low-income families who have had little education.
People with Disabilities
The 1988 Constitution contains several provisions for the disabled, stipulating a minimum wage, educational opportunities, and access to public buildings and public transportation. Groups that work with the disabled, however, report that state governments completely failed to meet the legally mandated targets for educational opportunities and work placement.
There was little progress in the elimination of architectural barriers to the disabled. However, the Federal District government made some efforts to eliminate architectural barriers by building access ramps and enlarging restrooms at Brasilia's central bus station, the zoo, the city park, and the southern commercial area. In addition, the city opened bidding for the acquisition of five access lifts to be installed in buses by year's end. Federal District legislation requires public buses to reserve four seats for the disabled, but other riders normally do not respect the rule, and drivers rarely enforce it. The Federal District government offered 22 professional training courses to 750 disabled people, and was negotiating with private companies to find positions for course graduates. Through the end of August, 12 people with disabilities had begun working for the city after receiving training.
Brazil's approximately 320,000 Indians, who speak 170 different languages, have a constitutional right to their traditional lands. Indigenous rights groups, however, expressed concern that in practice the authorities allow most indigenous people only limited participation in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. The 1988 Constitution charged the federal Government with demarcating 519 indigenous areas within 5 years, but the authorities have yet to complete more than half the demarcations and entitling decrees. In January the Government issued decree 1775, altering the demarcation process to permit challenges to proposed demarcations from nonindigenous interested parties, despite the fact that the Constitution allows the federal Government to expropriate land with just compensation.
A total of 419 separate challenges, covering 34 Indian areas, were filed. FUNAI, the National Indian Foundation, rejected all of the claims, and forwarded them to Justice Minister Nelson Jobim, who made the final decision. Jobim rejected all but 33 challenges, covering 8 different areas. He returned these to Funai asking for clarification of what he called technical errors in the anthropological reports, the basis for each demarcation.
The concerns of Indian rights groups and the federal prosecutor's office that the change in the demarcation process would reopen land claims in previously demarcated Indian reserves, and encourage land invasions by non-Indians hoping to stake new claims, resulting in increased violence, seem to be well-founded. According to COIAB, an umbrella group of indigenous rights organizations in the Amazon region, lumberjacks, fishermen, agricultural workers, and miners intensified invasions of at least 18 indigenous lands in Amazonas, Para, Parana, Rondonia and Roraima within 2 weeks after the new demarcation decree took effect. Lumberjacks invaded the Mamia reservation in Amazonas, home to 150 Munduruku Indians, where they cut down dozens of trees, and beat an Indian resident. Some 100 miners invaded the Munduruku reservation of Jacareacanga in southern Para, raising tensions with the Indians, who threatened to attack the miners if they were not removed.
The challenge to the Raposa-Serra do Sol reserve in Roraima, inhabited by some 12,000 Macuxi, Wapixana, Ingariko, and Taurepang Indians, was among the 8 that Justice Minister Jobim did not reject. The area was identified as traditional Indian land by Funai anthropologists in 1993, but the demarcation order awaited the Justice Minister's approval for 3 years. The area has been torn by constant conflict between Indians and nonindigenous occupants. Jobim had asked for further information on Raposa-Serra do Sol, citing the existence of a recently created municipality near the boundaries of the area. On December 20, Jobim ordered a reduction in the boundaries of the reservation and determined that several settlements by non-Indians would be allowed to remain within the area.
The Constitution provides Indians with the exclusive use of the soil, waters, and minerals found in their lands, subject to congressional authorization. The regulations necessary for economic exploitation, however, are still pending before the Congress as part of the bill known as the statute of indigenous societies. Illegal mining, logging, and ranching are a constant problem on Indian lands, as a majority of these lands have been occupied by non-Indians.
Several thousand gold miners invaded the Yanomami reserve in the state of Roraima, after the Government, citing a lack of resources, suspended its efforts to expel miners from the area. The influx of miners caused a surge in the number of Indians dying from malaria. At least 36 Yanomami died from malaria, and 136 from other diseases, including pneumonia and tuberculosis, in part due to the federal Government's failure to provide adequate medical care for indigenous people. The Catholic Church-affiliated Indigenist Missionary Council (CIMI) was alarmed at the lack of access to health care of the Deni Indians, who live in groups of some 60 Indians each along the Xerua river in the Amazon region. According to CIMI, a measles epidemic in 1991 killed 60 of 500 Deni Indians, and approximately 25 percent of the Deni population has died since then of preventable diseases such as tuberculosis and malaria. Since the Deni live in extremely isolated areas, sick Indians must travel 10 days by boat to get to the nearest Funai health clinic in Manaus. According to a report by the Manaus-based Institute of Tropical Medicine, the average life expectancy of Brazilian Indians dropped from 48.2 years in 1993 to 42.6 years in 1995.
The 1993 case against the Brazilian gold miners who were accused of killing 16 Yanomami on the Venezuelan side of the border remains mired in legal problems. None of the accused miners is in custody. Yanomami witnesses failed to recognize two of the accused, and other witnesses have disappeared. Indigenous rights groups expressed concern that the process was completely paralyzed and that those responsible for the massacre may never be brought to justice.
CIMI reported that more than 7,000 Indians were trapped into forced labor (see Section 6.c.). The majority were Guarani Indians in the state of Mato Grosso do Sul, where a high rate of suicide (11 among the Guarani through July) was reported.
Although racial discrimination has been illegal since 1951, darker skinned citizens say they frequently encounter discrimination. Most blacks are found among the poorer sectors of society. Even though nearly half of the population has some African ancestry, very few senior officials in government, the armed forces, or the private sector are black. Black consciousness organizations challenge the view that Brazil is a racial democracy with equality for all regardless of skin color. They assert that racial discrimination becomes most evident when blacks seek employment, housing, or educational opportunities.
According to government statistics, the monthly per capita income for white males is 6.3 times the minimum wage; for white women, 3.6 times the minimum wage; for black men, 2.9; and for black women, 1.7.
A 1995 survey conducted by a prominent polling service provided insight into the perceptions of different segments of the population about the problem of racism. The survey showed that 89 percent of the population believes that whites are prejudiced against blacks. Ten percent of nonblacks admitted that they were prejudiced against blacks, and, according to the pollsters, 87 percent of whites displayed signs of racism in their answers to at least 1 of 12 questions asked in the poll. A 1996 survey (by a different polling group) of people in 11 state capitals revealed that 83 percent of those interviewed believe that blacks suffer from discrimination. In Sao Paulo 58.9 percent of respondents and in Belo Horizonte 68.1 percent of respondents believed that measures should be taken to discourage natives of the northeast, many of whom are black, from migrating to those cities.
Blacks are often the victims of violence at a level disproportionate to their percentage in the population. For instance, a well-respected human rights NGO active in the northeast, the Luiz Freire Cultural Center, reported that, of the 1,378 murder victims in Recife in 1994, 87 percent were black. The weekly newsmagazine, Isto E, reported that, on June 17, Luciano Soares Ribeiro, a black data entry operator, was riding his bicycle in the town of Canoas, near Porto Alegre, the capital of Rio Grande do Sul, when he was hit by a white man driving a car. The driver, Rogerio Ferreira Pansera, later told the police that he had not stopped to help Ribeiro because he assumed that Ribeiro was a bike thief. Two passers-by took Ribeiro to a nearby hospital. When his mother arrived 4 hours later, she learned that the neurologist, Antonio Carlos Marrone, had refused to treat her son because he assumed that he was a common criminal and would not be able to pay his medical bill. Ribeiro died 2 days later from cranial trauma.
Racism as a crime is difficult to prove, although both Sao Paulo and Rio de Janeiro have designated special police units to investigate it. In a positive development, however, the daily newspaper, Folha de Sao Paulo, reported that, in January, a Rio de Janeiro court ordered Pires security services to pay an indemnity of $1 million for moral damages to the family of a black bookseller, Valdemir Damiao da Purificacao. In February 1995, a security guard shot and killed Purificacao as he entered a Bank of Brazil office in the Tijuca district of Rio de Janeiro where he went regularly to sell books. In his statement to police afterward, the security guard said he thought Purificacao was a thief, "because he was black and was carrying a large vinyl bag."
In a case that generated considerable media attention, a well-known entertainer named "Tiririca" released a record called "look at her hair," whose lyrics many criticized as racist. The lyrics describe his wife, who is black, as a "stinking beast whose odor is worse than a skunk." Tiririca himself is the son of an Afro-Brazilian mother and is considered a mixed-race mulatto by Brazilian standards. The Ministry of Justice filed racism charges against Tiririca in Rio de Janeiro, where the judge ordered Sony records to withdraw all copies of the compact disc and cassettes. Subsequently, a federal prosecutor told Sony's president that producing or making the song public would be considered a criminal act, and recommended that he withdraw all copies from the national market. He told Sony that it would be allowed to re-release it only after the song is removed.
A much higher percentage of blacks are convicted by Brazilian courts than whites, according to professor Sergio Adorno, of the University of Sao Paulo's Nucleus for the Study of Violence. Adorno analyzed 500 criminal cases judged in Sao Paulo courts in 1990 and found that 60 percent of whites able to afford their own lawyers were acquitted, while only 27 percent of blacks who hired lawyers were found not guilty.
President Cardoso created in November 1995 an interministerial working group to fight what he acknowledged as Brazil's serious problem with racism and discrimination. The group was charged with proposing public policies to increase the participation and access of Afro-Brazilians in society. The President's public acknowledgment that racism and discrimination existed in Brazil was unprecedented for Brazilian presidents, who have maintained in the past that people were discriminated against because they were poor, not because of their skin color. The interministerial group's subgroup on health launched a national campaign to educate health workers and others about sickle cell anemia, and began requiring that race be indicated on all birth and death certificates, intending to use the information gathered to build a comprehensive database of statistics on race. Another subgroup is studying the possibility of implementing affirmative action programs in three principal areas: Education, the labor market, and government-sponsored radio and television advertising.
Section 6 Worker Rights
a. The Right of Association
The Labor Code provides for union representation of all workers (except for military, police, and firemen) but imposes a hierarchical, unitary system, funded by a mandatory "union tax" on workers and employers. Under a restriction known as "unicidade" (one per city), the code prohibits multiple unions of the same professional category in a given geographical area. The 1988 Constitution freed workers to organize new unions out of old ones without prior authorization by the Government but retained other provisions of the old labor code. Elements of the labor movement and the International Confederation of Free Trade Unions (ICFTU) criticize the retention of unicidade and the union tax.
In practice, unicidade has proven less restrictive in recent years, as more liberal interpretations of its restrictions permitted new unions to form and--in many cases--to compete with unions and federations that had already enjoyed official recognition. The sole bureaucratic requirement for new unions is to register with the Ministry of Labor which, by judicial decision, is bound to receive and record their registration. The primary source of continuing restriction is the system of labor courts, which retain the right to review the registration of new unions and to adjudicate conflicts over their formation. The power of the labor courts to define jurisdictions came to the fore again during 1996 when the Sole Workers Central (CUT--the largest and most activist of the three labor confederations) ABC metalworkers' federation was riven by a group of dissidents who attempted to establish their own local union in one of the suburban Sao Paulo municipalities that the federation comprises. Although a majority of federation members clearly appeared to favor the unified structure, the dissidents sought redress by filing suit with the labor court.
Otherwise, unions are independent of the Government and of political parties. Approximately 20 to 30 percent of the work force is organized, with well over half of this number affiliated with an independent labor central. Intimidation of rural labor union organizers by landowners and their agents continues to be a problem (see Section 1.a.).
The Constitution provides workers with the right to strike, including civil servants (except again, for military, police, and firemen). Enabling legislation passed in 1989 stipulates that essential services must remain in operation during a strike and that workers must notify employers at least 48 hours before beginning a walkout. The Constitution prohibits government interference in labor unions but provides that "abuse" of the right to strike (such as not maintaining essential services or failure to end a strike after a labor court decision) is punishable by law.
The Constitution specifies the right of public employees to strike, subject to conditions enacted by the Congress. Since the Congress has yet to pass the complementary legislation, labor law attorneys continue to debate the limits on the right to strike of public employees. In practice, the Government has not interfered with their right to strike, though a month-long strike by Petrobras (the public oil monopoly) employees in May 1995, which greatly inconvenienced the public, was judged abusive by the Supreme Labor Court, and led many--including some labor leaders--to call for limits on public employees' right to strike.
CUT, the parent central to the petroleum workers, submitted a complaint to the International Labor Organization (ILO) Committee on Freedom of Association in May 1995 arguing that the firing of 59 union members for their involvement in the strike violated their right to strike. In November 1995, the ILO body found that the nature of the labor court's procedures, which allow either party to submit a dispute for what amounts to binding arbitration, "may effectively undermine the right of workers to strike and does not promote effective collective bargaining." The ILO suggested that the legislation be amended to permit submission of disputes to judicial authorities only with the permission of both parties or in case of the interruption of essential services. The ILO also suggested that the 59 workers be rehired.
Train and municipal transit workers, autoworkers, metalworkers, university professors, electrical generating authority employees, and dockworkers all went on strike. In addition, the three trade union confederations called a 1-day general strike in June, in which nearly all organized sectors of the economy participated to some degree. Formerly, the courts ruled almost automatically that strikes were abusive; in recent years, however, the courts have applied the law with more discretion. The 1989 strike law prohibits dismissals or the hiring of substitute workers during a strike, with certain exceptions, provided the strike is not ruled abusive.
Although the law makes no provision for a central labor organization, three major groups have emerged: The Sole Workers Central, the General Workers Confederation, and Forca Sindical. The centrals do not have legal standing to represent professional categories of workers, but all three centrals can effectively acquire such standing by affiliating with existing statewide federations or nationwide confederations or by forming new federations and confederations.
Unions and centrals freely affiliate with international trade union organizations. All three major confederations are affiliated with the ICFTU.
b. The Right to Organize and Bargain Collectively
The Constitution provides for the right to organize. With government assistance, businesses and unions are working to expand and improve mechanisms of collective bargaining. The scope of issues legally susceptible to collective bargaining is narrow, however, and the labor court system exercises normative powers with regard to the settlement of labor disputes, thus discouraging direct negotiation. The Cardoso Government made expansion of collective bargaining one of its major objectives in the labor sector. In mid-1995, the Government promulgated a provisional measure that ended the indexing of wages to inflation, reduced the role of labor courts in wage negotiations, allowed for mediation if the parties involved requested it, and provided greater latitude for collective bargaining. Unions welcomed these changes, since previously labor courts and the Labor Ministry had mediation responsibility in the preliminary stages of dispute settlement. In many cases, free negotiations set wages; labor court decisions set them in others. Under the terms of the provisional measure, parties may now freely choose mediation. The ILO notes that important differences in wages continue to exist to the detriment of women and blacks, particularly in the rural sectors (see Section 5).
The Constitution incorporates a provision from the Labor Code that prohibits the dismissal of employees who are candidates for or holders of union leadership positions. Nonetheless, dismissals take place, with those dismissed required to resort to a usually lengthy court process for relief. In general, the authorities do not effectively enforce laws protecting union members from discrimination. Union officials estimate that only 5 percent of such cases reaching the labor court system are resolved within days through a preliminary judicial order. The other 95 percent generally take 5 to 10 years (and sometimes more) to resolve.
Labor law applies equally in the free trade zones. However, unions in the Manaus Free Trade Zone, like rural unions and many unions in smaller cities, are relatively weaker vis-a-vis industry compared with unions in the major industrial centers.
c. Prohibition of Forced or Compulsory Labor
Although the Constitution prohibits forced labor, there were credible reports of forced labor in many parts of Brazil. In 1996 the Catholic Church-affiliated Pastoral Land Commission (CPT) reported 21 cases of forced labor, involving a total of 26,047 workers in 8 states. The number of workers involved
represents a small increase over the 25,193 reported the previous year and a large increase over the 19,940 reported in 1994. Forced labor is common on farms producing charcoal for use in the iron foundries and steel industries and in the sugar industry (see also Section 6.d.).
Local police admitted that overseers or owners of many farms withhold pay from migrant laborers and use force to retain and intimidate them, but such violations fall within the jurisdiction of the Federal Ministry of Labor. The Ministry of Labor increased the number of roving inspectors from 2,300 in 1995 to some 3,000 in 1996, but admits that its enforcement mechanisms are still inadequate. Labor organizations allege that in mining and the rural economy thousands of workers, including minors, are hired on the basis of false promises, subjected to debt bondage and forced prostitution, with violence used to retain or punish workers who attempt to escape. The people responsible for exploiting forced labor usually go unpunished because freed workers are often afraid to testify against those who recruited and oversaw them, and because the authorities have found it difficult to identify and locate the owners of farms or businesses that exploit forced labor.
The CPT reported that local authorities varied in their responses to allegations that forced labor existed in their jurisdictions. The governor of Minas Gerais denied that forced labor existed in his state even though, according to the CPT, inspections found some 8,000 people who were being forced to work on charcoal farms without payment and under subhuman conditions. In the western state of Acre, however, the state prosecutor general for labor appointed two special prosecutors to investigate allegations of forced labor there.
In mid-1995 the largest trade union confederation, CUT, initiated a 24-hour hot line with a toll-free number for reporting instances of forced labor. CUT president Vicente Paulo da Silva inaugurated the campaign by personally inspecting charcoal refineries in the state of Mato Grosso do Sul. Shortly after the CUT initiative, President Cardoso announced the formation of a task force to combat forced labor. Cardoso said that the Government would no longer provide loans, subsidies, or rollover of outstanding debt to farms or companies found to employ forced labor and that they would be ineligible to bid on public contracts. One important practice instituted by the task force was the use of federal law enforcement officers from other states for inspections, so that enterprises using forced labor cannot rely on friendly local authorities to avoid detection and punishment. The CPT noted that the effectiveness of surprise inspections was often hampered by the inability of inspection teams to arrive in an area without advance warning and by often spotty collaboration from the federal police. The Minister of Labor issued a decree in late 1995 providing that farms caught a second time using forced labor would be seized, and used to settle landless families as part of the federal Government's agrarian reform program.
d. Minimum Age for Employment of Children
The minimum working age under the Constitution is 14 years, except for apprentices. Judges can authorize employment for children under 14 years of age when they feel it appropriate. However, in October the Cardoso administration introduced a proposed constitutional amendment that would prohibit all child labor under the age of 14. The authorities rarely enforce legal restrictions intended to protect working minors under the age of 18, however, and the problem is widespread. The law requires permission of the parents or guardians for minors to work, and they must attend school through the primary grades. The law bars all minors from night work, work that constitutes a physical strain, and employment in unhealthful, dangerous, or morally harmful conditions. The Ministry of Labor is responsible for enforcement of child labor laws, but it has too few inspectors to do so effectively. The widely held view that it is better for minors to work than to be involved in street crime also hampers enforcement efforts.
Despite legal restrictions, however, official figures state that more than 3 million 10- to 14-year-old children (or 4.6 percent of the work force) were employed. Many children work alongside their parents in cane fields, cutting hemp, or feeding wood into charcoal ovens; accidents, unhealthy working conditions, and squalor are common in these workplaces. According to a comprehensive 1995 report in the weekly magazine Veja on the problem of child labor, it is common to find children in the interior of Bahia who have lost fingers and forearms feeding sisal into grinding machines. Carlos Silva de Jesus, age 14, for instance, has been blind since the age of 8 when, while working in a sisal field in Retirolandia, Bahia, he stabbed his left eye with a sisal leaf and shortly afterward punctured his right eye with a knife because he could not see very well.
In a public ceremony in the Presidential Palace on September 6, President Cardoso, accompanied by eight state governors and much of his cabinet, signed three protocols with state governors and NGO's expressing the commitment of the signatories to eradicate child labor in Brazil. In remarks at the signing ceremony, Cardoso said that child labor was "unacceptable" because it involved the degradation of human beings, which reflected badly on all Brazilians. Cardoso acknowledged that child labor has long existed in Brazil, but he insisted that the situation was different now because the federal Government, in cooperation with state governments, businesses, and NGO's, was taking concrete steps to combat it.
Cottage industry subcontractors for independent shoe manufacturers in Franca (Sao Paulo) have, in the past, employed thousands of children under the age of 14, in violation of the law. Public prosecutors, however, brought several suits in late 1994 and 1995 against Franca manufacturers for illegally subcontracting work that led to the exploitation of child labor. The labor court fined the manufacturers and ordered the practice stopped. Subsequently, the Franca shoe manufacturers' association signed an agreement with ABRINQ (the Brazilian toy manufacturers' foundation for children's rights) agreeing to end the use of child labor by its subcontractors.
According to a recent 2-year study carried out by an NGO based in Pernambuco, the Centro Josue de Castro, the use of child labor is common on sugar cane plantations. The study estimated that 54,000 minors work on sugar cane plantations in Pernambuco, and 40,000 in Sao Paulo. In 40 percent of the families the researchers interviewed, children contributed 30 to 50 percent of the family income. In the sugar cane industry in Pernambuco, 25 percent of the workers are younger than 18 years, 90 percent of whom began working on the plantations between the ages of 7 and 13. CUT, the nationwide labor confederation, reported that child labor is common among orange pickers in Sao Paulo. The CPT received reports of child labor in the charcoal production industry in Minas Gerais, Mato Grosso, Mato Grosso do Sul, and Para; on sisal plantations in Bahia and Paraiba; on cotton plantations in Parana; and in the area of reforestation, where children are used principally to put toxic chemicals on trees and anthills, in Minas Gerais, Bahia, and Espirito Santo.
ABRINQ has been active in trying to remedy many of these abuses. It convinced the state's sugar producers and Abecitrus, the association of state citrus exporters, to sign accords agreeing to remove child labor from their operations. At ABRINQ's encouragement, Volkswagen, General Motors, and other auto manufacturers are investigating the role of child labor in operations related to their plants (children are involved in producing charcoal, which is used to produce the cast iron and steel used in cars).
In its efforts to convince state governments to crack down on child labor, ABRINQ has emphasized the need to provide educational opportunities for the children involved. The state government of Mato Grosso do Sul, in conjunction with the federal Government, implemented a pilot project intended to take children from charcoal farms and place them in classrooms. The parents are paid a salary slightly higher than the child's monthly earnings on the charcoal farm so long as the child remains in school. If the program is successful, the state government plans to expand it from the initial group of 1,000 children.
e. Acceptable Conditions of Work
Prior to July 1994, the Government adjusted the national minimum wage every month. Upon introduction of the economic stabilization plan in 1995, it set the minimum wage at $83 (70 reais) per month. In May 1995, President Cardoso raised the minimum wage to $111 dollars (100 reais) per month, and, in May 1996, raised it again to $115 (112 reais). The minimum wage is not sufficient to provide a decent standard of living for a worker and family. The Interunion Department for Socioeconomic Studies and Statistics estimated that the minimum wage is slightly more than one-fourth that necessary to support a family of four (the standard set by the 1988 Constitution). The most recent national survey (for 1990) showed that 35 percent of economically active individuals, including minors from 10 to 14 years of age, earned no more than the minimum wage. Many workers, particularly outside the regulated economy and in the northeast, reportedly earned less than the minimum wage.
The 1988 Constitution limits the workweek to 44 hours and specifies a weekly rest period of 24 consecutive hours, preferably on Sundays. The Constitution expanded pay and fringe benefits and established new protections for agricultural and domestic workers, although not all of these provisions are enforced.
Unsafe working conditions are prevalent throughout the country. Incomplete figures from the Ministry of Social Welfare on workplace accidents and fatalities in 1995 showed 424,137 reported accidents, of which 3,967 were fatal and 15,156 caused permanent disabilities. Fundacentro, part of the Ministry of Labor, sets occupational health and safety standards. However, the Ministry has insufficient resources for adequate inspection and enforcement of these standards. There were also credible allegations of corruption within the enforcement system. If a worker has a problem in the workplace and has trouble getting relief directly from his employer, he or his union can file a claim with the regional labor court, although in practice this is frequently a cumbersome, protracted process.
The law requires employers to establish internal commissions for accident prevention in workplaces. The law protects employee members of these commissions from being fired for their activities. Such firings, however, do occur, and legal recourse usually requires years for resolution. While an individual worker does not have the legal right to remove himself from workplaces with hazardous conditions, workers may express such concerns to the internal commission, which would conduct an immediate investigation.
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