BRAZIL: National Laws

Summary: General overview of Brazil's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Brazil incorporated the Convention on the Rights of the Child through Decree No. 99,710, under which the Convention became a full part of national law. As such, the Convention is fully applicable in national courts, and can and has been cited in court proceedings.

Constitution: The Brazilian Constitution contains a large number of rights provisions, a substantial number of which specifically address the rights of the child. Chapter VII contains a large proportion of the child-specific provisions, but they are also found throughout the Constitution:

• Art. 5(XXXI): provides that succession to foreigners' estates located in Brazil shall be regulated by Brazilian law in favour of the Brazilian spouse or children wherever the personal law of the deceased in not more favourable to them
• Art. 5(L): provides for female prisoners to be ensured of adequate conditions to stay with their children during the nursing period.
• Art. 6: provides that education and childhood are social rights
• Art. 7(XXV): provides for free assistance for children and dependants from birth to six years of age in day-care centres and pre-school facilities
• Art. 24: in laying out the powers of the organs of State, allows the Union, States and the Federal District to legislate concurrently on the protection of childhood and youth
• Art. 203(I) and (II): provide for a right to social assistance, regardless of contribution, with the objectives of protecting the family, maternity, childhood and adolescence, and for assisting needy children and adolescents
• Art. 208(IV): provides that it is the duty of the State to ensure assistance to children of zero to six years of age in day-care centres and pre-schools
• Art. 208(VII), para. 3: permits the Government the power to take a census of elementary school students, call them for enrolment and ensure that parents or guardians see to their children's attendance at school
• Art. 211, para. 2: requires the Union, States, Federal District and the municipalities to cooperate in the organisation of their educational systems, and municipalities to act on a priority basis in elementary education and the education of children
• Ch. VII (arts. 226-230): contains a wide range of protections for children, including setting the age of criminal responsibility at 18 years, providing for specialised health care and setting a constitutional basis for adoption law

Legislation: Much of Brazilian law in relation to children has been consolidated in the Statute of the Child and Adolescent, though relevant legislation can be found in a number of legislative Acts including, but not limited to:

• The Statute of the Child and Adolescent, Law No. 8.069 of 13 July 1990
• The Code of Minors, Law No. 6.697 of 10 October 1979
• The Penal Code, Decree-Law No. 2,848/40 of 7 December 1940
• The Civil Code Law 10.406/02 of 10 January 2002
• The Law on Torture, No. 455 of 7 April 1997
• The Law on Civil Registration of Births, Law No. 9.534, of December 1987
• The Law of National Education Guidelines and Bases, Law No. 9.394 of 20 December 1996
• The National Policy for Child Welfare (provided for in Law No. 4.513)

Legal Research
The National Congress of Brazil (Câmara dos Deputados) maintains an official website offering a database of national legislation in Portuguese (http://www2.camara.gov.br/atividade-legislativa/legislacao), while the Infolegis project provides access to selected Brazilian legislation in English, French and Spanish (http://www.infolegis.com.br/legbratraduzida-sumario.htm). The University of Richmond website provides access to the Brazilian Constitution in English and Portuguese (http://confinder.richmond.edu/) and is available in fully amended form on the website of the National Congress (http://www2.camara.gov.br/atividade-legislativa/legislacao/Constituicoes_Brasileiras/constituicao1988.html) in Portuguese. In addition, the GlobaLex project at New York University has published a guide to legal research in Brazil (http://www.nyulawglobal.org/Globalex/Brazil1.htm), and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/brazil.php) and World Legal Information Institute (http://www.worldlii.org/br/) provide links to a selection of legal and governmental resources.

Case Law
CRC Jurisprudence
The Federal Supreme Court (Supremo Tribunal Federal) (http://www.stf.jus.br/portal/jurisprudencia/pesquisarJurisprudencia.asp), the Superior Court of Justice (Superior Tribunal Justiça) (http://www.stj.jus.br/SCON/), the Federal Council of Justice (Conselho da Justiça Federal) (http://columbo2.cjf.jus.br/juris/unificada/) and the Superior Labour Court (Tribunal Superior do Trabalho) (http://www.tst.gov.br/web/guest/jurisprudencia) all maintain databases of their own case law in Portuguese.

Case Law Research
Please contact CRIN if you are aware of any cases in national law that references the Convention on the Rights of the Child.

Compliance with the CRC
In its 2004 Concluding Observations, the Committee on the Rights of the Child welcomed the adoption of the 1988 Constitution of Brazil including its extensive children's rights provisions and granting of absolute priority to children's rights in article 227. The Committee expressed concern, however, at the division of powers between the Union, Federal States and municipalities, particularly insofar as this division may lead to instances in which minimum Convention standards are not applied to all children within the authority of certain legal authorities.

In depth analysis
A common feature of the Committee's 2004 Observations was that while legislation may have incorporated the provisions of the Convention relatively well, there was a gap between the legislation and practice. Specifically, the Committee noted that the Statute of the Child and Adolescent contained strong prohibitions on torture and ill-treatment, but that there had been a significant number of cases of torture and degrading treatment reported, and a failure to investigate these cases or to prosecute those responsible. Similarly, the Committee noted the Constitutional provisions on discrimination and racism, but expressed concern at the persistence of discrimination against members of certain ethnic groups, and the unequal social development in Northern North-Eastern regions.

The Committee also expressed concern that in certain areas the law itself fell short of the standards set by the Convention. In particular, the Committee noted the wide spread practice of corporal punishment of children and that no legislation exists to prohibit such ill-treatment. The Committee recommended that the State amend its laws so as to institute an explicit prohibition on such violence, including in the home, penal institutions and schools.

With regards to juvenile justice, the Committee expressed concern at the lack of clear guarantees for a fair and speedy trial, and noted that the rules on pre-trial detention were not adequately enforced. The Concluding Observations also highlighted numerous reports of ill-treatment of young inmates and the infrequent use of socio-educative measures which had inflated the number of children in detention. Accordingly, the Committee recommended that the State ensure that deprivation of liberty is only used as a measure of last resort for the shortest period possible and that children under the age of 18 are provided with access to legal assistance.

Current legal reform projects
The Brazilian President submitted a Bill aimed at prohibiting corporal punishment of children in July 2010, but as of June 2012, the prohibition of corporal punishment had not been enacted.