United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1998 - Brazil, 26 February 1999, available at: http://www.refworld.org/docid/3ae6aa7f20.html [accessed 5 May 2016]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Brazil is a constitutional federal republic composed of 26 states and the federal district. The federal legislative branch exercises authority independent of the executive branch. On October 4, voters reelected President Fernando Henrique Cardoso to a second 4-year term. Citizens also cast votes for all 513 federal deputies, one-third of the Senate, and for governors and state assemblies. This marked the third 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. All parties are able to compete on the basis of fair and equal procedures. The judiciary is independent but inefficient and subject to influence. 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 officially as the "military police," who are responsible for maintaining public order. Although the individual state governments control the uniformed police, the Constitution provides that they can be called into active military service in the event of an emergency, and they maintain some military characteristics and privileges, including a separate judicial system. In September 1997, the Justice Ministry created a public security secretariat to coordinate efforts to reorganize and modernize the police forces. The federal police force is very small, primarily investigative, and plays little role in maintaining internal security. The state police forces committed numerous serious human rights abuses. Brazil has a market-based, diversified economy. The Government, which traditionally played a dominant role in shaping economic development, 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. Per capita GDP was about $5,000 in 1998 and the economy grew at a rate of 0.5 percent. Although income distribution improved slightly in 1998, it remained highly skewed, and the poorest half of the population received only 10 percent of national income while the richest tenth received 48 percent. The Government generally respected the human rights of its citizens, but there continued to be numerous serious abuses. State police forces (both civil and uniformed police) committed many extrajudicial killings, and the police also tortured suspects under interrogation, arbitrarily detained persons, and conducted illegal searches. Off-duty police were implicated in killings for hire, kidnapings for ransom, and other abuses. Prison officials often beat inmates to maintain order. The state governments concerned did not punish most perpetrators of these abuses effectively. While state police forces dismissed increasing numbers of police officers for improper or criminal behavior, police tribunals (special courts for the uniformed police) remained overloaded, rarely investigated cases thoroughly, and seldom convicted abusers. The separate system of uniformed police tribunals contributes to a climate of impunity for police officers involved in extrajudicial killings or abuse of prisoners. Legislation enacted in 1996 gave civil courts jurisdiction over intentional homicide committed by uniformed police officers but left control of the initial inquiry in the hands of the police, which can preempt investigation and prosecution of cases. The poor bear the brunt of most violence. Prison conditions range from poor to harsh. The judiciary has a large case backlog and often is unable to ensure the right to a fair and speedy trial. Justice is slow and often unreliable, especially in rural areas where some powerful landowners use violence to settle land disputes and influence the local judiciary. Violence against women, racial minorities, and homosexuals is a problem. Discrimination against women and religious and racial minorities is also a problem. Child prostitution and abuse are problems. Despite constitutional provisions safeguarding the rights of indigenous people, government authorities fail to protect them adequately from outsiders who encroach on their lands and fail to provide them with adequate health care and other basic services in many areas. However, the Government has demarcated 115,000 square miles of indigenous lands in the past 4 years, and about 11 percent of the country is identified for the roughly 330,000 indigenous people. The authorities do not adequately enforce laws against forced labor, including that by children. Illegal child labor is a serious problem. Established in April 1997, the National Secretariat of Human Rights in the Justice Ministry oversees the implementation of a 1996 Action Plan to address human rights abuses. The Government continued its inter-ministerial campaigns against child labor and expanded its scholarship program to keep primary and secondary students in school. However, because of jurisdictional and resource limitations, the efforts of the Federal Government had an uneven and limited 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, high crime rates, a low standard of police training, failure to apprehend most criminals, and an inept and inefficient criminal justice system all contribute to police brutality and killings of criminal suspects. Human rights groups report that the uniformed police often summarily execute suspected criminals rather than apprehend them and then file false reports describing the executions as shootouts. The Permanent Forum against Violence in Alagoas stated that the practice of executing young petty criminals is widely referred to in police circles as "social surgery." A 1997 Human Rights Watch report described the unjustified use of deadly force in police raids in urban shantytowns; extrajudicial killings, justified in official reports as "resisting arrest;" and use of executions by off-duty officers to respond to minor provocations or to resolve personal vendettas. The Government's failure to investigate, prosecute, and punish police who commit such acts creates a sense of impunity that continues to encourage human rights abuses. All crimes less serious than murder committed by uniformed police officers against civilians remain in the military justice system. Of 2,359 cases against police officers that were sent to police tribunals in Sao Paulo state between January and October, 64 percent were retired without a court hearing. Cases were retired for insufficient evidence and lack of knowledge of the author of the crime. According to a study released in November by the Institute for Religious Studies (ISER), 98 percent of the 301 cases of police homicides the Institute examined from 1993 to 1996 were determined to be "legitimate self-defense" and not brought to trial. ISER's medical researcher noted that in 245 cases there were signs of execution, including 13 cases with gunshot wounds made at point blank range. In 64 percent of the cases examined, the victims were shot in the back. The number of citizens killed in conflicts with police in Sao Paulo rose 17 percent over 1997, according to the state government. According to the Sao Paulo police ombudsman, 60 percent of the victims had no prior police records, a fact that he believes casts doubt on police claims that 80 percent of shooting victims were resisting arrest. Off-duty police officers committed 31 percent of police homicides during this period. This is the first year state police provided statistics on homicides committed by off-duty officers, a measure long called for by human rights organizations. Sao Paulo state's civil (investigative) police killed 45 persons during the first 9 months, a 309 percent increase over the same period in 1997. The Sao Paulo state Secretary for Public Security ordered investigations of all homicides committed by police in the line of duty in response to public questioning of police practices. Police homicides roughly doubled in Rio de Janeiro from 1997 to 1998, where police killed 511 persons through October. According to another ISER study, Rio de Janeiro police officers rarely fired to immobilize rather than kill; half of the victims were killed with four or more bullets, and the majority of victims were shot in either the shoulders or the head. Forty cases clearly demonstrated execution-style deaths, where victims were first immobilized and then shot at close range. Victims were often young, black, and without criminal records. The shooting of two suspected bank robbers by a police officer in Rio de Janeiro, recorded on video tape and broadcast in its entirety on the national evening news, graphically illustrated the commonplace use of lethal force by the police and the public's tolerant attitude toward such practices. On August 5, a uniformed police officer on duty in a busy public square in the Ipanema neighborhood of Rio de Janeiro, alerted by a bystander, approached two men on a parked motorcycle who were suspected of just having robbed a local bank. The uniformed policeman drew his gun and approached the two men. As he came close enough to question them, he also attempted to take a gun from one suspect who then attempted to draw the gun himself. Without further warning, the policeman shot both suspects in the head at point blank range in succession and fired four more times as the suspects lay on the ground. The initial intense media coverage of the incident focused mostly on the positive public response to the policeman's actions. His superiors decorated him for bravery. Some media and human rights observers questioned the appropriateness of the officer's action, his lack of training and preparation to deal with such an incident, and his use of lethal force in a crowded public area. The state assembly of Rio de Janeiro in June suspended the controversial bravery awards for police that are linked by human rights observers to increased fatalities. The state assembly overturned Governor Marcelo Alencar's veto and enacted a law that requests the executive to submit to the assembly legislation specifying criteria for the awards. The Governor appealed the assembly's action in the courts, arguing that the law is unconstitutional. In September the state Minister of Public Security appealed to the assembly for reinstatement of the bravery awards, arguing that they were needed to maintain adequate salaries for the uniformed police. However, the Governor-elect of Rio de Janeiro state, who is to take office in January 1999, announced that he would not seek to reinstate the bravery awards. Police involvement in criminal activities often produces killings. Throughout the country, off-duty police were implicated in killings for hire, kidnapings for ransom, and instances of "social cleansing," or the killings of persons considered undesirable such as criminals, street children, and homosexuals. For example, in September 1997 off-duty Sao Paulo police officers were implicated in the kidnaping and murder of an 8-year-old boy. In 1996 in Belo Horizonte a group calling itself "Reacion" and reportedly composed of active duty and former police officers killed three street children. No new information was available on either investigation. Some incidents were widely publicized and drew attention to the need for better training and more pay for the police. The Inter-American Commission on Human Rights (IACHR) stated in a December 1997 report that the police forces require widespread reform to curb repeated instances of violence and other abuses. The report stated that the number of deaths in Rio de Janeiro attributed to state police officers averaged 20 a month in 1996, which it termed an "alarming phenomenon." It stated that one battalion covering slum areas was responsible for one third of the deaths. The IACHR also stated that the state police killed three times as many persons as those they injured in civilian confrontations, a reversal of normal patterns. The IACHR noted that "this is evidence of the use of excessive force and even shows a pattern of extrajudicial executions by the Rio de Janeiro police." On the night of August 3, four uniformed policemen in the city of Salvador abducted two transvestite prostitutes, took them to a nearby beach, and ordered them at gunpoint to enter the rough surf and to swim as far as they could. One victim drowned. The other survived and later identified his four assailants, who subsequently were arrested. The four policemen claimed they were acting under orders from superiors and implicated one of their commanding lieutenants. The lieutenant was not charged. On December 16, gunmen murdered Ceci Cunha, a federal deputy in the northeastern state of Alagoas, her husband, her brother-in-law, and his mother. They were shot and killed shortly after an investiture ceremony for new Alagoas members of the federal Chamber of Deputies. The police arrested two suspects, one of them an employee of Cunha's elected alternate, who stands to inherit her seat in the Chamber. The investigation continued at year's end. Harsh prison conditions, official negligence, poor sanitary conditions, lack of medical care, and dangerous conditions led to a number of deaths in prisons (see Section 1.c.). In December 1997, unknown assailants shot and killed four street residents who were sleeping outdoors in the Madurerira neighborhood in Rio de Janeiro. No suspects have been arrested, and there was no information available as to progress in an investigation, if any, of the killings. A 1996 law giving civil courts jurisdiction over intentional homicide committed by uniformed police officers was used in some high-profile cases. In the first such case, a civilian court in Sao Paulo convicted Otavio Gamba, the leader of a uniformed police squad caught torturing and murdering civilians on video in a roadblock in the Sao Paulo neighborhood of Diadema in March 1997 and sentenced him to 65 years' imprisonment. Although Gambra received sentences totaling 65 years in jail for fatally shooting Mario Josino, as well as attempted homicide and abuse of authority, he will serve the maximum sentence permitted under the law, which is 30 years. Civil courts also gave three other officers sentences ranging from 4 to 26 years; four other officers involved in the widely publicized roadblock incident awaited trial at year's end. Police tribunals in August already had sentenced the eight policemen to jail terms ranging from 18 months to 4 years for their involvement in the case. These sentences largely conform to the maximum permitted by the tribunals, but all but one of the defendants is to serve the police tribunal's sentence under house arrest. The Sao Paulo uniformed police expelled two other officers for their involvement in the incident, but have not punished the officers responsible for supervising the group. The commander of the police battalion in the neighborhood, after initially being relieved of duty, was reinstated and suffered only administrative punishment. In most less prominent cases, the decision whether a policeman acted in self-defense or committed an intentional homicide is based on an investigation performed by the police force itself; almost without exception, the police investigators conclude that suspects were "resisting arrest." Federal authorities in the state of Mato Grosso do Sul are investigating 5 uniformed policemen regarding 11 death-squad style killings committed in 1997. A state legislator monitoring the investigation believes that these policemen committed at least 40 such homicides. In a separate incident, the authorities charged one of the five with killing for hire. Human rights monitors visiting the morgue in Maceio, Alagoas state, found that the bodies of 12 persons, who allegedly were the victims of a death squad that included members of the police, were missing. The authorities had been investigating the group, known as the Uniformed Gang, because most of its members reportedly were police officers. They arrested more than 60 police officers, and the courts sentenced 3 of them to 6-year prison terms for illegal possession of machine guns. The president of the state Supreme Court of Acre, with the assistance of federal authorities, reopened 110 murder and torture cases previously suspended by state authorities for lack of evidence. He claimed that at least 30 of the cases involve death squads with police participation. His investigation led to charges against one uniformed policeman and a civilian, who are being held in the Federal District because of threats made against them. Five policemen charged in December 1997 with the February 1997 murder of Osvaldo Manoel da Silva await trail. The policemen claimed that da Silva died as a result of wounds suffered while resisting arrest, but a reconstruction of the events by a credible university forensic team indicated that he was shot three times while in the ambulance on the way to the hospital. Sao Paulo civil authorities continue to investigate five Sao Paulo policemen in connection with the May 1997 killing of three homeless persons during a riot that erupted at a low-income housing project in greater Sao Paulo. The police were carrying out a court order to remove over 400 families that had occupied the "Fazenda da Juta" housing complex illegally on May 3. The police operation was broadcast on television and criticized as an excessive use of force. The authorities have not yet indicted the officers under investigation. The authorities continue to investigate the May 1996 death-squad killings in the Franco da Rocha neighborhood of Sao Paulo. Witnesses identified five uniformed police officers as having arrested four men who were found dead a few hours later. Franco da Rocha is one of Sao Paulo state's poorest communities and the location of a clandestine dumping site for the victims of death squads. Since 1993 at least 212 bodies have been found there, including 50 victims killed by bullets to the head. The arms and heads of some of the bodies were removed in an apparent attempt to conceal the victims' identities. A Rio de Janeiro court sentenced Marco Aurelio Dias, the final defendant in the case of the massacre of eight street children near the Candelaria church in downtown Rio de Janeiro in 1993, to 204 years in prison (18 years for each homicide and 12 years for each attempted homicide). The penultimate defendant, Marcos Vinicius Manuel, had been sentenced to 89 years in prison in late 1997. In November a jury acquitted 10 officers accused of participating in the 1993 killing of 21 residents of the Vigario Geral neighborhood of Rio de Janeiro. Human rights groups had monitored the case closely and strongly criticized the verdict. The Public Ministry planned to contest the decision. Two of the original 33 defendants have died, 2 are in prison, and no trial date has been set for another group of 19 police officers in the case. State authorities in Para have asked for a change in venue from the city of Maraba to the state capital of Belem in the case of 153 police officers charged in 1997 with intentional murder in the November 1996 massacre of 19 landless workers in Eldorado de Carajas. State prosecutors charge that the majority of jury members selected in Maraba are prejudiced because of their ties to land-owning interests. Federal government agents are protecting journalist Mariza Romao, who received a series of death threats after testifying against the police officers charged in the case. In 1997 state authorities charged the commander and 19 other police officers involved in the August 1995 massacre of 9 squatters in Corumbiara, Rondonia, with intentional homicide, which meant that those accused are to be tried in regular courts rather than by 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. At year's end, a Rondonia state court was reviewing the appeals filed after the local judge decided which cases would go to a jury. Retired military police Colonel Ubiratan Guimaraes appealed a judge's September decision to try him in civil court for his role in the deaths of 111 inmates during the October 1992 Carandiru prison riot in Sao Paulo. If tried, Guimaraes would be the first policeman of the rank of colonel to face a civilian jury under the 1996 law. In October Guimaraes lost his reelection to the Sao Paulo state assembly, which previously had provided him with parliamentary immunity and shielded him from prosecution. Civilian prosecutors continue to investigate charges against 121 other Sao Paulo police officers accused of crimes ranging from homicide to use of excessive force while quelling the riot. In March civil prosecutors filed charges against 85 of those police officers, including 43 senior officers. As of year's end, no trial date had been set. Human rights activists have brought the case before the IACHR as an example of impunity in human rights cases. There were no developments in the 1997 killing of radio show host Edgar Lopes de Faria (see Section 2.a.). The rural Landless Workers' Movement (MST) continued its campaign of illegally occupying land identified as unproductive, blocking highways, and occupying government buildings, leading to continued confrontations with landowners, their gunmen, and policemen. MST activists destroyed private property during some occupations. A group of MST activists kidnaped three employees of the federal land reform agency in the state of Para in September and held them for over 36 hours until the government agreed to provide the group with food staples. In April an employee of a local landowner reportedly shot and killed MST leader Sadi Padillo in Abelardo Luz, Santa Catarina. The local Labor Party president charged that an armed militia paid by local landowners had targeted MST leaders for murder. Padilla had led a group of 300 families who occupied a local holding but who had left peacefully after reaching an agreement with the Government's land reform agency. The Pastoral Land Commission (CPT) reported that 26 landless activists were murdered through November. In December Sao Paulo state police reported finding the bodies of two MST members with bullet wounds in their heads and signs of torture. They had been leaders of a group of 180 peasant families who occupied land in September near Sao Jose dos Campos in northeastern Sao Paulo state. Such killings usually go unpunished, because the landowners thought to be responsible for many of them reportedly control the police in isolated areas and intimidate local judges and lawyers with violence and threats of violence. In March an appellate court upheld the August 1997 court decision to prosecute four suspects accused of killing Pataxo Indian leader Galdino Jesus dos Santos for manslaughter rather than murder. The authorities appealed this ruling and still seek to prosecute them on homicide charges. Dos Santos died in April 1997 after five youths set him on fire while he was asleep on a small bench. In August a federal appeals court upheld the decision of the state Supreme Court of Espirito Santo to move the retrial of MST leader Jose Rainha to the state capital of Vitoria. Rainha's attorneys convinced the state court that he faced a biased jury in Pedro Canario. No trial date had been set by year's end. A jury in the small, rural town of Pedro Canario, Espirito Santo, sentenced Rainha to 261/2 years for the 1989 murders of landowner Jose Machado Neto and police officer Sergio Narciso da Silva. The jury convicted Rainha even though the prosecution presented no material evidence and witnesses testified to Rainha's presence 1,500 miles away from the scene of the crime. Since Rainha's sentence exceeded 20 years, he was automatically entitled to a retrial. In December a Sao Paulo jury found former Sao Paulo precinct chief Carlos Vasconcelos innocent in a retrial for his participation in the deaths of 18 inmates in 1989 in a jail administered by the civil police's 42nd Delegation. A jury previously had acquitted Vasconcelos on the same chargers in 1996, but state prosecutors appealed the decision. A 1997 court decision sentenced police investigator Celso Jose da Cruz to a 516-year jail term for involvement in the same killing; Cruz appealed the verdict and awaited a retrial at year's end. Twenty-nine other policemen charged as codefendants in the case still were awaiting trial. According to human rights activists monitoring the case, proceedings have stalled against the former mayor of Rio Maria, in the state of Para, who was charged with the 1985 murder of Joao Canuto, the first president of the rural workers union in Rio Maria. Canuto's daughter, Luzia Canuto, received death threats as a result of the case. In June the IACHR criticized the Government for failing to prosecute the crime. In coordination with the National Secretariat of Human Rights or on their own, several states, including Sao Paulo, Rio Grande do Sul, Minas Gerais, Espirito Santo, Ceara, Sergipe, and Bahia have implemented some form of human rights awareness training for the uniformed police. In many cases, including that of Bahia, the police authorities invited local nongovernmental organizations (NGO's) to conduct or assist in the training. The secretariat expanded an ongoing human rights training program for policemen coordinated with Amnesty International to 10 states. The International Committee of the Red Cross (ICRC) in October completed its first course of human rights training for high-ranking military police officers from 21 states at the federal police academy in Brasilia. The program is scheduled to run for 2 years and train over 300 police officers. The course is designed to have these officers pass the training on to junior ranking officers and police recruits at the state level. The ICRC is implementing the program under the auspices of the Justice Ministry's police coordination secretariat. In December 1997, the military police in Sao Paulo initiated a community-policing program that is expected to take 10 years to implement fully. The police formed a committee composed of over 20 human rights groups, judges, and community leaders to assist and assess the project. They also instituted a policy of "recycling" policemen involved in shootings, removing them from patrols for 6 months and offering them counseling. As of November, one-fifth of the Sao Paulo state military police force (16,000 of 80,000 policemen) have received training under the program, and 4,300 policemen participate in community policing patrols. Additionally, the police have increased the acquisition of and training in the use of nonlethal arms such as tear gas, rubber bullets, and electric stun devices. Human rights groups maintain that the effect of these programs has been limited, at best. However, human rights activists in many states reported increased willingness of police authorities to address their concerns and to deal with problems brought to their attention.
There were no reports of politically motivated disappearances. However, off-duty police reportedly were involved in several abductions for ransom. In 1997 the human rights division of the public prosecutor's office in Belo Horizonte reported that, in the previous 7 years, it had received nearly 100 complaints of "disappearances" of persons from Belo Horizonte in which the police allegedly were involved. In the majority of cases, the alleged victims were criminal suspects. In 1995 Congress passed legislation recognizing and assuming government responsibility for the deaths of 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. In September 1997, President Cardoso signed a decree awarding reparations to the families of 43 such persons. A commission created by the law continued to evaluate requests for, and authorize payment of, indemnities. MST activists kidnaped three government employees for 36 hours in September (see Section 1.a.).
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution and a 1997 law prohibit torture and provide for severe legal penalties for its use. However, there are frequent credible reports that police torture and beat criminal suspects to extract information, confessions, or money. In a highly publicized case in May, police in Rio de Janeiro tortured Deilson Santana, a suspect in the brutal killing of an 18-year-old student in an affluent Rio de Janeiro neighborhood. After a separate investigation into the murder cleared Santana of any responsibility, the officers responsible for the torture unsuccessfully tried to implicate him in an unrelated crime in an effort to discredit him. 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 generally are poor, uneducated about their rights, and afraid to come forward for fear of reprisals. Human rights activists claim that beatings in Sao Paulo prisons led to the deaths of Carlos Alberto Moura in February and Otovio dos Santos Filho in October 1997. The Sao Paulo state police ombudsman received 696 complaints through September alleging torture, abuse, or mistreatment. These represented 24 percent of all complaints received, compared with 11 percent of all complaints received in 1997. The ombudsman's office attributed this rise to a growing public awareness of its work and willingness to report cases of abuse. Nonetheless, the ombudsman's office believes that the number of cases reported represents only a fraction of those that take place. In June the civil police in Sao Paulo opened an inquiry into the systematic torture of prisoners occurring in January and February. Of the 350 prisoners held in a detention facility during this period, 107 showed evidence of a similar pattern of beating that included broken fingers, arms, legs, and jaws, according to state medical authorities. The civil police dismissed four officers as a result of the investigation. In another case, prison authorities dismissed a prison guard who reportedly beat prisoners with a baseball bat. In testimony before the federal Chamber of Deputies' human rights committee in April, a member of the National Conference of Catholic Bishops prison pastoral commission criticized the abusive practices of two special units of the Sao Paulo civil police, the Special Operations Group and the armed unit for the prevention of robberies and assaults. Local chapters of the Center for Human Rights in the state of Tocantins submitted evidence of over 30 cases of torture committed by the police in the state to the federal Chamber of Deputies' human rights committee in December. State prosecutors removed the director of the state's provisional prison from her post and indicted her after two inmates were tortured in February. On June 15, the Federal District civil police dismissed police officer Jorge Tadeu dos Santos and charged him with torture for beating a prisoner who had been detained for a traffic violation. This was the first case brought under the 1997 torture legislation in the Federal District. The state of Santa Catarina created a panel to award citizens imprisoned or tortured for political motives between 1961 and 1979 compensation in amounts ranging from the equivalent of $4,400 to $26,500. Prison conditions range from poor to harsh. Severe overcrowding is prevalent, especially in larger cities. According to Ministry of Justice figures for 1997, prisons nationwide held 101,482 prisoners although the total designed inmate capacity was 74,592. In the states with the largest prison populations, including Sao Paulo, Rio de Janeiro, Bahia, Rio Grande do Sul, and Pernambuco, overcrowding is significantly worse. In the state of Sao Paulo, which holds 40 percent of the national prison population, 52 percent of inmates were serving their sentences in police stations or local jails, according to state statistics from 1997. Most penal authorities do not have the resources to separate minor offenders from adults and petty offenders from violent criminals. Sao Paulo's prison system, in particular, suffers from chronic overcrowding, corrupt and abusive local prison management, and prisoner access to weapons and drugs. In February prisoner Elcio Oliveira Lima died of heat prostration in an overcrowded local jail in the Santa Cruz neighborhood of Rio de Janeiro. A police officer on duty told the press that the temperature in the jail cells routinely reached 115 degrees. Another officer stated that there was a constant shortage of water in the jail. Lima was detained with 13 other prisoners in a 4.5-foot by 9.5-foot cell with an official capacity of 7 persons. Prison riots were frequent occurrences. Sao Paulo state officials reported a 147 percent increase in prison revolts from 1996 to 1997 (from 72 to 178 incidents). On December 28, 1997, inmates took over the prison in Sorocaba, Sao Paulo state, in an effort to cover up an escape attempt. They took visitors and prison officials hostage; one inmate and a visitor were killed. After 3 days of negotiations, 400 special police stormed the prison and freed the hostages. The authorities subsequently transferred 20 inmates to other prisons. In the first 7 months of 1998, 103 prison riots occurred in Sao Paulo state. On November 27, prisoners in the police station holding facility in Sao Paulo's Diadema neighborhood took a guard prisoner, demanding to be transferred from the overcrowded facility. They proceeded to kill three prisoners, two in front of television cameras. The authorities agreed to transfer 23 inmates, and the prisoners released the guard. On the same day, 5 armed men freed 109 detainees from a police station in Campinas; the facility was designed to hold 40 persons but held 179 at the time. Discipline is difficult to maintain under such conditions, and prison officials often resort to inhuman treatment to maintain order. According to the Catholic Church's prison ministry, guards beat all 24 prisoners in the "dungeon" section of Sao Paulo's notorious Carandiru prison on January 24 after discovering one knife. Similar beatings occurred on March 24 at Sao Paulo's 42nd precinct after guards discovered an escape tunnel. Prisons do not provide adequate protection against violence inflicted by inmates on each other. On November 27, inmates burned two prisoners to death in a jail in Orlandia. In the Barreto Campelo maximum-security penitentiary in the state of Pernambuco, 22 prisoners died in a period of 1 week in violence attributed to battles between drug gangs in which prison guards also were involved, according to press accounts. The prison held roughly twice as many prisoners as its designed capacity. Prisoners are subject to extremely poor health conditions as well. Scabies and tuberculosis, diseases not common in the general population, are widespread in Sao Paulo prisons. The Ministry of Justice estimates that 10 to 20 percent of the national prison population is HIV positive. Denial of first aid and other medical care is sometimes used as a form of punishment. In November President Cardoso approved a law authorizing alternative sentencing, aimed in part at easing prison overcrowding. A Ministry of Justice plan to construct 52 new prisons and renovate and enlarge existing prisons was delayed and construction contracts had not been awarded by year's end. The program is designed to add capacity to the prison system for 24,465 inmates, according to the Ministry. Twelve of the new prisons are to be constructed in Sao Paulo. Sao Paulo prison authorities transferred 3,773 inmates from the most overcrowded urban jails to prisons in the interior of the state, but the authorities did not meet their goal of transferring 12,000 prisoners during the year. In December Human Rights Watch issued a comprehensive report on prisons entitled "Behind Bars in Brazil." The report is based on an intensive review of prison conditions in 8 of the 27 states and meticulously documents inhuman conditions and a range of human rights abuses throughout the prison system. Although it is government policy to permit prison visits by independent human rights monitors, state authorities frequently denied such access. The Human Rights Watch report noted that gaining access to prisons was "surprisingly difficult," and that barriers ranged from outright denial of access to the use of procedural delays. Only three states of the eight investigated-- Amazonas, the Federal District, and Rio Grande do Norte--made their prisons completely accessible. The authorities in Rio de Janeiro state completely denied access. The authorities in Paraiba state denied Human Rights Watch investigators unmonitored access to the inmates at the Roger penitentiary in December 1997, despite a judicial order allowing for the possibility, only months after the deaths of 11 prisoners within the facility. Also in December 1997, the governor of Ceara issued a decree barring members of the Catholic Church's prison ministry from entering prisons in that state, citing the mission's presence as a factor causing a prison riot in Fortaleza earlier that month. The Church's prison ministry strongly denied the charge.
d. Arbitrary Arrest, Detention, or Exile
The law prohibits arbitrary arrest and detention, and the Government generally observes this prohibition; however, police continued at times to detain persons arbitrarily. 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. However, groups that work with street children claim that the police sometimes detain street youths illegally without a judicial order or hold them incommunicado. The Government does not use forced exile.
e. Denial of Fair Public Trial
The judiciary is an independent branch of government, but it is inefficient and subject to political and economic influence. In many instances, lower-income, less-educated citizens make limited use of the appeals process that otherwise might 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 Constitution. There is also a system of specialized courts that deal with police, labor, elections, juveniles, and family matters. Special police courts have jurisdiction over state uniformed police (except when charged with intentional homicide); the record of these courts shows that conviction is the exception rather than the rule. A human rights group in the northeast that studied alleged 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. A study of police homicides in Rio de Janeiro state in 1993-96 found no instance of a conviction in 301 cases (see Section 1.a.). These 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 1996 the President signed legislation giving ordinary courts jurisdiction over cases in which uniformed police officers are accused of intentional homicide against civilians. However, the internal police investigation determines if the homicide was intentional, and the police tribunal decides whether to forward a case to a civil court for trial. As a result, cases almost never come to trial. The first known case was the Gamba conviction in Sao Paulo (see Section 1.a.). In a speech before the Order of Brazilian Attorneys in July, President Cardoso criticized the slowness and poor administration of the justice system and said that reform was imperative. The President noted that the Supreme Court had ruled on over 40,000 cases in 1997 and, citing a figure provided by the Institute of Economic, Social, and Political Studies of Sao Paulo, said that 90 percent of cases ruled on by appellate courts were redundant. The president of the federal Supreme Court complained in a 1997 press interview about the volume of appeals that by law the Supreme Court must review. It takes 8 years to reach a definitive decision in the average case, a delay the Supreme Court president considered unjust. At the appellate court level, a large backlog of cases hinders the courts' ability to ensure fair and expeditious trials. 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 such cases, 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 decide only cases of willful crimes against life, including crimes by police; judges try all others. The right to a fair public trial as provided by law generally is respected in practice, although in rural areas the judiciary generally is 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. 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 set period of time from the date of the crime. Due to the backlog, old cases frequently are dismissed. According to a former judge, this encourages corrupt judges to delay certain cases purposely, so that they can be dismissed. 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 that they spend on a case. The president of the state Supreme Court in Acre reported that state police told him explicitly that they would not investigate police involvement in death squads for fear of reprisal when he attempted to reopen cases suspended for lack of evidence (see Section 1.a.). 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. 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. 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.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution prohibits all forms of censorship and provides for freedom of speech and a free press, and 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; however, the Government has licensing authority, and politicians frequently obtain the licenses. Current or former congressmen, some of whom are or were members of the committee that oversees communications, own many television and radio stations. 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, the Government regularly approves transfers of concessions already granted to other individuals with little oversight. The penalty for libel under the 1967 press law--a prison term--is considered extreme by judges and rarely is imposed. Press criticism has described it as an archaic and authoritarian law inherited from the military regime. In a report issued in October, the National Association of Journalists (ANJ), which represents 115 separate press organizations, claimed that the threat of prohibitive fines and jail sentences discouraged freedom of the press. The ANJ cited two judgments made during the year against publishers that amounted to hundreds of thousands of dollars and included jail terms of several months. Complex electoral campaign laws regulate the broadcast media and prescribe complicated arrangements to apportion the free use of commercial radio and television time granted to political parties during an election campaign. The short periods for rulings and nonappeal provisions of the regulations are designed to enforce discipline and to ensure that remedies are applied in a timely matter. A Sao Paulo electoral court levied stiff sanctions on two television stations for violations during the election campaign, in one case for comments made by a sensationalist talk show host that were deemed to favor one candidate. Although the rulings provoked controversy, in general media and free speech advocates accept the manner in which the campaign laws are enforced. Foreign publications are widely distributed; prior review of films, plays, and radio and television programming is practiced only to determine a suitable viewing age. The October ANJ report documented a number of violent threats and physical attacks, including killings, against the press since 1995. These include 12 murders of journalists in retaliation for investigative reporting on organized crime, police corruption, government fraud, and human rights abuses. In October 1997, unknown assailants killed Edgar Lopes de Faria, the host of a radio show in the state capital of Mato Grosso do Sul, who had announced that he would disclose the names of the region's organized crime leaders. No arrests have been made in any of these cases. In addition to killings, the ANJ report cites numerous cases of intimidation and death threats made against journalists during the same period. 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 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, except entry into protected Indian areas, nor are there any restrictions on emigration or return. However, a parent is not allowed to leave the country with children without the permission of the other parent. In July 1997, the Government passed legislation with provisions for asylum and refugee status intended to conform with the principles of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. The Government provides first asylum and cooperates with the office of the U.N. High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees. There were 800 requests for refugee status during the year; 480 cases were granted and 320 cases were denied. According to the UNHCR, there were 2,350 refugees in the country at year's end. There were no reports of the forced return of persons to a country where they feared persecution.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides citizens with the right to change their government peacefully, and citizens exercise this right in practice through periodic, free, and fair elections held on the basis of universal suffrage. Voting is secret and mandatory for all literate citizens age 18 to 70, except for 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 increasingly active in politics and government. However, cultural, institutional, and financial barriers continue to limit women's participation in political life. The number of female candidates for office in the national elections roughly doubled from the number in 1994, according to statistics released by the Supreme Electoral Court. Women constituted 12.3 percent of the total candidates. However, their representation in the national Congress decreased from 7.6 percent to 5.7 percent after the elections; 29 women were elected to the 513-seat Chamber of Deputies, and 5 to the 81-seat Senate. There were 2 women in the 29-member Cabinet. Brazil's diverse ethnic and racial groups, while free to participate politically, are not represented in government and politics in proportion to their numbers in the general population.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of local and national human rights groups operate without government restriction, investigating and publishing their findings on human rights cases. Federal officials generally are cooperative and responsive to their views. Established in April 1997, the Justice Ministry's National Secretariat of Human Rights oversees implementation of a 1996 action plan to address human rights abuses. The secretariat administered or sponsored programs to reduce violence among the poor, to train police officials in human rights practices, and to combat discrimination against blacks, women, children, indigenous people, the elderly, and the handicapped. In December the National Human Rights Secretary, Dr. Jose Gregori, received the United Nations Human Rights Prize for his role in implementing the plan and his accomplishments on behalf of human rights, dating back to his cooperation with groups trying to restore democracy during the period of military rule. The IACHR's December 1997 report noted President Cardoso's "objective treatment" of human rights problems and the positive thrust of the national human rights action plan, adopted in 1996. The report also strongly criticized Brazil for violating a broad range of human rights, including police violence and involvement in extrajudicial killing, violence against and exploitation of minors, and general impunity for human rights violators. President Cardoso publicly accepted the findings of serious human rights abuses in the IACHR report, acknowledging in a speech that the nation could not, "as in the past, pretend these things do not exist." In 1998 Dr. Gregori and other government officials cooperated with IACHR inquiries into several specific cases. In December the Senate ratified legislation accepting the binding jurisdiction of the Inter-American Court of Human Rights. When the Government deposited its acceptance, it stated that the action applies on a nonretroactive basis.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
Discrimination on the basis of sex, race, religion, or nationality is against the law, yet women, blacks, and indigenous people continued to experience discrimination. The International Labor Organization (ILO) notes that important differences in wages exist to the detriment of women and blacks, particularly in rural areas. The Government passed a law in May 1997 that provides prison penalties and fines for racist acts, including promulgation of pejorative terms for ethnic or racial groups, use of the swastika, or acts of discrimination based on sex, religion, age, or ethnic origin. There continued to be reports of violence against homosexuals, although it was not always clear that the victims' sexual orientation was the reason. The Gay Group of Bahia (GGB), Brazil's best known homosexual rights organization, other human rights organizations, and Amnesty International have in the past 5 years documented the existence of skinhead, neo-Nazi, and "machista" gangs that attacked suspected homosexuals in cities including Rio de Janeiro, Salvador, Belo Horizonte, and Brasilia. In some cases these gangs included police officers. The GGB maintains that increasing numbers of homosexuals are being killed because of their sexual orientation in Salvador, citing as an example the murder on August 28 of Roberto Jorge Franco, a well-known proprietor of a gay nightclub in Salvador with close ties to the GGB. Information from the GGB and other homosexual rights groups clearly indicates that transvestite prostitutes, the most visible homosexual group, are at a greater risk of violence than other homosexuals. Police routinely extort money from transvestites and often beat or kill those who fail to cooperate. A board member of the Permanent Forum against Violence in Alagoas, Pedro Montenegro, and the president of the Gay Group of Alagoas, Marcelo Nasciemento, received death threats after denouncing the involvement of the civil police in a series of murders of transvestites in the city of Maceio in 1997. In August in the city of Salvador, four military policemen beat and then forced two transvestite prostitutes to enter the ocean in a particularly dangerous area. One of the victims drowned (see Section 1.a.). Women There is a high incidence of physical abuse of women. Most major cities and towns have established special police offices to deal with crimes of domestic or sexual violence against women; such offices total over 200. Rapes reported to the police in the state of Rio de Janeiro increased 34 percent in the period between 1994 and 1997, according to the state Ministry for Public Security. Both state authorities and women's rights activists agree that a large number of rapes go unreported. The Sao Paulo Center for Assistance to Female Victims of Sexual Violence reported that 400 women sought the center's intervention in rape cases after receiving no help from the police. 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 murder of a wife, courts are still reluctant to prosecute and convict men who claim that they attacked their wives for infidelity. In June the National Movement for Human Rights reported that female murder victims were 30 times more likely to be killed by current or former husbands or lovers than by others. The federal police in Rio de Janeiro state created a specialized unit to deal with crimes of trafficking in women and children. The unit reported 15 active investigations into trafficking; 12 for trafficking to Spain, 2 to Israel and 1 to Japan. In the past, they also have handled cases involving traffic to Italy and Portugal. 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 rarely is enforced. According to official statistics released in August, women with a high school education or less earn, on average, 63 percent of the salaries earned by men with the same level of education. Black women earn on average 26 percent of a white male's salary. 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 reported that the average starting salary for high school educated women in Sao Paulo was one-third less than the average starting salary for high school educated men. 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. In an effort to end such practices, President Cardoso signed a law in 1995 that prohibited 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. Children Despite progressive laws to protect children and a growing awareness of their plight through media and NGO campaigns, millions of children continue to suffer from the poverty afflicting their families, must work to survive, and fail to get an education. 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 3.8 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 Sections 6.c. and 6.d.). Many other children beg on the streets of cities. Schooling is free and compulsory for the first six grades and is available in all parts of the country. The education system does not exclude any groups. 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. Disparities in the numbers of children living in the street reported by children's rights activists indicate the difficulty of arriving at accurate estimates. 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. 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. In Salvador, Bahia, NGO's estimate the number of children who sleep in the streets to be less than 1,000, although this number fluctuates widely during the weeks between Christmas and Carnival, when children from the region are attracted to the city by the large number of tourists and festivals. NGO's in Rio de Janeiro have made enough shelters available for homeless children, but some children prefer the freedom and drugs that street life offers. 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 in the streets. A national study of rape cases carried out by a group of Sao Paulo academics indicated that family members committed roughly 70 percent of rapes within their own homes. An IBGE study reported that 47 percent of Sao Paulo children come from families that earn less than $200 per month. Nationwide, the Inter-American Development Bank estimates that some 30 million children live below the poverty line and increasingly come from households headed by women. 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. According to the Children and Adolescents Defense Center (CEDECA) in Bahia, 207 children were killed in the city of Salvador in 1997, an increase of 39 percent over 1996. Through August 53 children under the age of 17 were killed in Salvador. CEDECA attributes the vast majority of these homicides to the action of police and death squads. Government and NGO resources for street children have not been able to keep up with the high demand. Homicide has become the leading cause of death among 15- to 17-year-olds, with its rate more than tripling since 1980, according to a survey published in November 1997. The survey, conducted by IBGE and the United Nations Children's Fund, found that 23.5 percent of deaths in that age group were homicides, compared with 7.8 percent in 1980. Among children between the ages of 10 and 14, homicide accounted for 5.1 percent of all deaths. In Rio de Janeiro, according to the Division for the Protection of Children and Adolescents and the Court of Infancy and Youth, approximately 659 minors were shot to death in 1996, up from 596 in 1995. The Government continued its campaign against sex tourism and child prostitution, a significant problem throughout the country, but particularly prevalent in the major coastal tourist cities in the northeast. The media reported on the spread of child prostitution from coastal cities to the rural interior of the northeast, particularly in towns located on well-traveled highways. Children's rights advocates in the northeastern states of Bahia, Alagoas, and Ceara warned that the importance of sex tourism in encouraging child prostitution has been overstated and that local social conditions have fueled demand for child prostitutes. The Federal District has a 24-hour number for reporting cases of sexual abuse, a special police unit to investigate sexual crimes against children, and special teams at all clinics and hospitals to treat child victims of violence or sexual abuse. One NGO, the SOS Children Center, in operation about 18 months, operates a toll-free hot line for reporting sexual exploitation of minors. It has received 1,000 credible reports from throughout the country, of which 20 involved trafficking to foreign countries. People With Disabilities The Constitution contains several provisions for the disabled, stipulating a minimum wage, educational opportunities, and access to public buildings and public transportation. However, groups that work with the disabled report that state governments 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. According to the Federal Ministry of Education, in 1997 only 5 percent of the estimated 6 million school age children with disabilities had access to specialized instruction. Throughout the country, only 43 percent of school districts offer special instruction for disabled children. In the nine states in the northeast, only 24 percent offer special instruction. Indigenous People Brazil's approximately 330,000 Indians, who speak 170 different languages, have a constitutional right to their traditional lands. The Constitution also recognizes the social organizations, customs, languages, and beliefs of indigenous people. However, indigenous rights groups expressed concern that in practice the authorities allow indigenous peoples only limited participation in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. They also criticized the Government for devoting insufficient resources to provide health care and other basic services and to protect indigenous reserves from non-Indians. Illegal mining, logging, and ranching are serious problems on Indian lands, leading to degradation of the land and violent disputes with non-Indians who have occupied a majority of these lands. On May 20, Francisco de Assis Araujo of the Xucuru tribe, a prominent campaigner for the indigenous population, was killed in Pesqueira, Pernambuco. He had defended the land claims of his tribe, whose lands are being encroached upon by ranchers. The 1988 Constitution charged the Federal Government with demarcating indigenous areas within 5 years. As of year's end, the Government had completed the demarcation process of roughly 115,000 square miles, bringing the total proportion of identified indigenous lands that have been demarcated legally from 16 percent to 55 percent. This included demarcation of the 20.7- million-acre Vale do Javari reserve in the state of Amazonas, the largest in the country. The Government has identified 11 percent of the national territory for indigenous people. In January 1996, the Government issued decree 1775, which allows nonindigenous parties to challenge demarcations based on property claims. The Government argued that the decree was necessary in order to balance its constitutional obligations both to demarcate indigenous lands and to protect the rights of property owners. Although indigenous rights activists severely criticized the decree at the time of its promulgation, it has accelerated the demarcation process rapidly by transferring the adjudication of property claims from the extremely slow and inefficient civil courts to an administrative process overseen by the Ministry of Justice. Within the procedures set forth in the decree, the National Indian Foundation (FUNAI) rejected within 7 months all 419 of the challenges made in 1996. In 1997 then-Justice Minister Nelson Jobim overturned decisions made by FUNAI and upheld claims brought against the demarcation of nine indigenous areas, including the Raposa Serra do Sol, by the Macuxi, Taurepang, Ingariko, and Wapixana tribes. In December the Federal Government issued a decree recognizing the original boundaries of the Raposa Serra do Sol indigenous area, effectively overturning Minister Jobim's decisions. FUNAI may now complete the demarcation process of Raposa Serra do Sol as it was originally identified. The court of justice in Ilheus, southern Bahia, ruled that the Pataxo tribe was the legitimate heir to some 133,000 acres of land in Bahia. However, the chances of recovering any of this land from the 280 large landowners who occupy the territory appear slim. The Constitution provides Indians with the exclusive use of the soil, waters, and minerals on indigenous lands, subject to congressional authorization. In granting authorization, the Constitution stipulates that the views of the affected communities must be considered and that the communities also must "participate" in the benefits gained from such use. However, legislation regulating mining on indigenous lands is pending before the Congress. The Catholic Church-affiliated Indigenous Missionary Council (CIMI) criticized the regulations within the legislation that would provide for indigenous groups' approval of mining concessions and their participation in the profits from mining on the grounds that they do not sufficiently address the constitutional rights of indigenous people. Due partly to the Government's failure to provide adequate medical care, as required by law, indigenous people have suffered epidemics of malaria, measles, and tuberculosis. The National Health Foundation reported that 40 percent of the Yanomami tribe suffered from malaria. The infant mortality rate among the Yanomami in 1997 was 13 percent, while infant mortality among non-Indian residents was only 1.5 percent. According to health workers' unions, poor working conditions and lack of resources from the Government make it very difficult for health workers to travel into indigenous areas to provide sufficient medical care. Members of the Pataxo community in the state of Bahia in June accused federal deputy and medical doctor Roland Lavigne of initiating a program of mass sterilization among Pataxo women in exchange for votes during his 1994 electoral campaign. Pataxo women were reluctant to have children because of the general level of poverty in their community, and campaign workers reportedly convinced them that sterilization was the only effective form of birth control. CIMI claims to have independently confirmed that Lavigne sterilized at least 56 Pataxo women over the last 4 years. In the small settlement of Itaju do Colonia, all 10 of the women of childbearing age of the Pataxo Ha-ha-hae tribe were sterilized. CIMI reported that Lavigne paid campaign workers according to the number of Pataxo women brought to area hospitals. Pataxo leaders claimed that the sterilizations were a deliberate program of genocide intended to eliminate their tribe and free their land for farmers who illegally occupy the Pataxo reserve. Pataxo leaders requested federal police protection in August after receiving threats from farmers who are settled on their land. The Government is investigating Lavigne for illegally offering services in exchange for votes, providing medical services to Indians without FUNAI approval, misuse of public health funds, and performing illegal sterilization operations on women under the age of 25. CIMI accused FUNAI of failing to meet its constitutional requirement to protect the Pataxo. Religious Minorities Human rights activists continued to express concern because of discrimination against Jews by neo-Nazi groups in the south. According to a staff member of the Sao Paulo state assembly's Human Rights Committee, over 300 incidents of neo-Nazi inspired violence have occurred since 1992; 204 of those incidents occurred in Sao Paulo state. National/Racial/Ethnic Minorities Although racial discrimination has been illegal since 1951, darker skinned citizens say that they frequently encounter discrimination. Legislation in force since 1989 specifically prohibits, among other practices, denial of public or private facilities, employment, or housing to anyone based on race. A 1997 amendment to this law added prohibitions against and jail terms for the incitement of racial discrimination or prejudice and the dissemination of racially offensive symbols and epithets. In July researchers from the Folha de Sao Paulo newspaper reported knowledge of only three convictions handed out since the law's passage in 1989. No appeals court has ever considered a case under the law, confirming a lack of convictions. The Folha report quoted a knowledgeable federal official as saying that the three levels of the justice system responsible for implementing the law (police, prosecutors, and judges) are incapable of recognizing racism against blacks. Police and prosecutors often do not consider cases of discrimination brought to them by blacks to be serious matters. In Sao Paulo human rights activists continued to express concern because of discrimination against blacks and poor persons from the northeast by neo-Nazi groups in the south. A group of human rights activists led by the chairman of the Sao Paulo state assembly's Human Rights Committee called for investigation into the use of the Internet by racist organizations to disseminate illegal propaganda. The chairman identified the National Socialist Union for Sao Paulo and the National Front for Order and Progress as two of the groups. In August a university student in Sao Paulo was charged under the antidiscrimination law with disseminating racially offensive materials on the Internet. Most blacks are found among the poorer sectors of society. According to government statistics released in August, a male head of household with black or mixed African ancestry, with a high school education or less, earns on average 48 percent as much as his white counterpart. Women in the same category earn an average of 46 percent as much as white females. Other government statistics show that 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. Illiteracy is also a problem: 32 percent of blacks are illiterate, compared with 14 percent of whites. Of 30,000 students at the University of Sao Paulo in 1997, only about 1,000 were black. 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. Blacks are often the victims of violence at a level disproportionate to their percentage in the population. For instance, a human rights NGO active in the northeast, the Luiz Freire Cultural Center, has reported that of the 1,378 murder victims in Recife in 1994, 87 percent were black. A much higher percentage of blacks are convicted by 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. In September 1997, the Federal Government's Interministerial Working Group for the Valorization of the Black Population issued 29 recommendations, including the creation of affirmative action programs for university admissions and government hiring. The group is charged with proposing public policies to increase the participation and access of Afro-Brazilians in society. The President's public acknowledgement in November 1995 that racism and discrimination exist was unprecedented, for presidents had maintained in the past that persons were discriminated against because they were poor, not because of their skin color.
Section 6 Worker Rights
a. The Right of Association
The Labor Code provides for representation of all workers (except members of the military, the uniformed police, and firemen) but imposes a hierarchical, unitary system funded by a mandatory union tax on workers and employers. The Cardoso Government, with support from the unions, proposed abolishing the tax. The measure awaited approval by the Congress at year's end. The sole bureaucratic requirement for new unions is to register with the Ministry of Labor, which by court decision must accept the registration and record it. 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 of the Government, but retained other provisions of the old Labor Code. All elements of the labor movement as well as the International Confederation of Free Trade Unions (ICFTU) criticize the retention of unicidade. The Government promised to end unicidade but has not yet proposed legislation to do so. Unicidade has proven less restrictive in recent years, as more liberal interpretations permitted new unions to form and, in many cases, to compete with unions and federations that had already enjoyed official recognition. In practice, unicidade is enforced by the system of labor courts, which retain the right to review the registration of new unions and to adjudicate conflicts over their formation. This often can result in complicated jurisdictional quarrels. A splinter group used the principle of unicidade to resist a consolidation movement by the Workers' Unitary Central (CUT) and formed its own metalworkers' local in the ABC industrial suburbs of Sao Paulo in 1995. The dispute took 3 years and numerous court appearances by all concerned before reaching a settlement. The settlement, approved by a majority of the members of the unions involved, provided for the reincorporation of the dissident union into the Sao Paulo ABC's metalworkers' union. Otherwise, unions are independent of the Government and, at least nominally, of political parties. Approximately 20 to 30 percent of the work force is organized, with well over half this number affiliated with an independent labor central. Intimidation of rural labor union organizers and their agents continues to be a problem. The Constitution provides workers the right to strike (except for the 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. In the case of public employees, the Constitution specifies their right to strike, subject to conditions enacted by the Congress. Since the Congress has yet to pass the complementary legislation, labor and legal experts debate the limits of the right to strike for public employees. In practice, the Government has not interfered with their right to strike. However, in May 1995, a month-long strike by Petrobras (the public oil monopoly) employees greatly inconvenienced the public and was judged abusive by the Supreme Labor Court. Petrobras subsequently dismissed 59 union members. The strike caused many--including labor leaders--to call for limits on public employees' right to strike. CUT, the parent central of the petroleum workers' unions, submitted a complaint to the International Labor Organization (ILO) Committee on Freedom of Association, arguing that the firing of 59 union members as a result of the strike was in effect a violation of the 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 recommended that the legislation be amended so that disputes can be submitted to judicial authorities only with the permission of both parties or in a case of interruption of essential services. The ILO also recommended that the workers be rehired. The ILO further argued that the high fines levied on the local unions for defiance of a court order to return to work amounted to a serious limitation of the right to strike. In July President Cardoso signed into law an amnesty for the fines that the courts had levied on the petroleum workers' unions, and Petrobras rehired the 59 workers, effectively ending the dispute. Teachers, autoworkers, municipal transit workers, metalworkers, and dock and port workers all went on strike during the year. In addition, in August federal customs officers conducted a work-to-rule slowdown that had the same impact as a strike in delaying the processing of both imports and exports. Formerly, the courts almost automatically ruled strikes abusive; in recent years 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 that the strike is not ruled abusive. Although the law makes no provision for a central labor organization, three major groups have emerged: the Workers' Unitary Central, the Workers' General Confederation (CGT), and the Forca Sindical (FS). A fourth central, the Social Democratic Union (SDS), emerged in September 1997. The centrals do not have legal standing to represent professional categories of workers, but all three centrals effectively can 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 centrals 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. However, the scope of issues legally susceptible to collective bargaining is narrow. The labor court system exercises normative power with regard to the settlement of labor disputes, discouraging direct negotiation. The Cardoso Government made expansion of collective bargaining one of its major objectives in the labor sector. The Minister of Labor who took office in April reemphasized this point. In mid-1995 the Cardoso administration promulgated a provisional measure that simultaneously ended inflation indexing of wages, allowed for mediation of wage settlements if the parties involved so desired, and provided greater latitude for collective bargaining. Unions have welcomed these changes, since previously the Labor Court and the Labor Ministry had responsibility for mediation in the preliminary stages of dispute settlement. In many cases free negotiations set wages; labor court decisions set them in others. Under the provisional measure, parties now may choose mediation freely. 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 old 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 longer) to resolve. Labor law applies equally in the free trade zones. The unions in the Manaus Free Trade Zone, like rural unions and many unions in smaller cities, are relatively weaker vis-a-vis industry than 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 the country. The Catholic Church's Pastoral Land Commission continued to report on cases of forced labor in some states. Forced labor is common on farms that produce charcoal for use in the iron foundries and the steel industry, and in the sugar industry (see also Section 6.d.). Federal authorities admit that enforcement resources are inadequate and, as a result, state and federal officers have been unable generally to conduct timely investigations of compulsory labor, although their record is improving. The Government passed legislation in December further defining forced labor and prescribing specific penalties for those convicted under the law. Local police acknowledge 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, which has 3,000 inspectors for the entire country. Because of its limited resources, the Ministry generally investigates only those cases for which it has received a complaint. The Federal Government has a task force to combat forced labor. The task force includes representatives from five different ministries and uses federal law enforcement officers across the borders of the various states, so that enterprises cannot rely on friendly local authorities to escape punishment. To support task force activities, the Ministry of Labor created mobile inspection teams directed by regional centers throughout the country. During 1995-97, the teams carried out more than 400 raids, which uncovered more than 130,000 persons working under conditions of forced labor. The CPT has noted that the task force's effectiveness sometimes is hampered by its inability to arrive in an area without advance warning and by the often minimal collaboration of the federal police. In an effort to combat forced labor, in 1997 the CUT initiated a 24-hour hot line with a toll free number for reporting instances of forced labor. However, the persons responsible for exploiting forced labor usually go unpunished because freed workers are often afraid to testify against those who recruited and supervised them, and because the authorities have found it difficult to identify and locate the owners of farms or businesses that exploit forced labor. The law prohibits forced and bonded labor by children, but it is not enforced adequately. Labor organizations continue to allege that in mining and the rural economy thousands of workers, including minors, are hired on the basis of false promises, and subjected to debt bondage and to violence if they try to escape.
d. Status of Child Labor Practices and Minimum Age for Employment
The Government amended the Constitution in December to raise the minimum working age from 14 to 16 years. Under the amendment, apprenticeships may only begin at age 14; previously, judges could authorize apprenticeships for children beginning at 12 years of age. However, the authorities rarely enforce additional legal restrictions intended to protect working minors under age 18, and the problem is widespread. In recognition of this, the Ministry of Labor has initiated a special effort to protect working adolescents, with pilot programs underway in a number of states. The Congress is considering a government proposal to amend the Constitution to prohibit all labor by children under the age of 14. The law requires permission of the parents for minors to work, and working minors must attend school through the primary grades. Schooling is free and compulsory for the first six grades, and available in all parts of the country. The majority of children remain in school until age 14. The law bars all minors from night work, work that constitutes a physical strain, and employment in unhealthful, dangerous or morally harmful conditions. However, the Government estimates that 60,000 children work in unhealthful conditions. The law prohibits forced and bonded labor for all workers, including children. However, enforcement varies considerably depending on the location (see Section 6.c.). Despite legal restrictions, official figures state that nearly 3 million 10-to-14-year-old children were employed, accounting for 4.6 percent of the work force. Many children are forced by economic necessity to work alongside their parents in cane fields, cutting hemp, or feeding wood into charcoal ovens; frequent accidents, unhealthy working conditions, and squalor are common in these cases. The authorities rarely enforce legal restrictions intended to protect working minors under the age of 18, and the problem of child labor is serious. Enforcement of restrictions is limited by the small number of inspectors available. Inspection suffers from a lack of resources and, as with forced labor, inspectors generally act on the basis of complaints and tips concerning the use of child labor. However, when inspections do take place, they are effective. Employers illegally using child labor have been fined heavily for their offenses. A report published by the Sergipe state government in 1997 stated that 10,000 children and adolescents between the ages of 6 and 18 were part of the labor force in the orange growing region, with 54 percent between the ages of 7 and 14. Sergipe has acknowledged that the problem of child labor is widespread, and the state launched a federally funded program in May aimed at encouraging families to keep children in school rather than at work in the orange groves. Sugar cane growers illegally employ children and adolescents ranging from 7 to 17 years of age, many cutting cane with machetes. The charcoal industry, hemp cultivators in the northeast, and orange growers all have used illegal child labor. Children also perform various tasks in the mining and logging industries in the Amazon region. In addition, although both the Government and the industry have made strong efforts to eliminate it, there is still some child labor in the shoe industry. The private sector and particularly the Toy Manufacturers' Foundation for Children's Rights (Abrinq) have been active in trying to remedy many of these abuses. Abrinq reached an agreement with the Sao Paulo state sugar producers to remove child labor from that industry. In addition, Abrinq persuaded Abecitrus, the citrus export organization, to agree to remove child labor from its operations. Because of Abrinq's efforts, Volkswagen and General Motors, as well as other automakers, are studying the role of child labor in charcoal production, which is used to produce the cast iron and steel used in cars. Both manufacturers agreed to cease using products in which child labor is an element. Abrinq has emphasized not just ending child labor but also putting children into good-quality schools. The shoe manufacturers in the city of Franca, with the help of Abrinq, virtually eliminated child labor there and enhanced the educational opportunities of children whom they formerly employed. A similar project with Ministry of Labor direction has been successful in removing child labor from the shoe industry in Rio Grande do Sul. In Mato Grosso do Sul, a government-sponsored project has taken children from the charcoal industry there to the classroom, with parents receiving roughly the equivalent of the child's monthly earnings as long as the child attends school. The project, which began with 1,000 children, has been expanded to involve nearly 2,500 children. Because of the success of the program in Mato Grosso do Sul, the Ministry of Labor expanded the program to the sugar producing regions of Pernambuco, where 20,000 children participate, and to the hemp-growing area of Bahia, which has a program for more than 8,000 children. In addition, the Ministry has begun a program to raise public consciousness concerning child labor, which Ministry officials consider the key to eradication of the problem. In October 1997, the Sao Paulo state government promulgated a law that prohibits the state from using contractors who exploit child labor.
e. Acceptable Conditions of Work
The minimum wage is approximately $111 (130 reals) a month, which is not sufficient to provide a decent standard of living for a worker and family. A recent survey by the Getulio Vargas Foundation determined that the poverty level is 45 reals a month per person. However, a 1997 study by the Interunion Department of Socioeconomic Studies and Statistics concluded that the minimum wage was only slightly more than one-fourth that necessary to support a family of four. The Interunion study weighed urban data more heavily than did the Vargas Foundation, accounting for some of the disparity of these conclusions. Many workers, particularly outside the regulated economy and in the rural northeast, reportedly earn less than the minimum wage. The Constitution limits the workweek to 44 hours and specifies a weekly rest period of 24 consecutive hours, preferably on Sundays. The Constitution provides for pay and fringe benefits and establishes new protection for agricultural and domestic workers, although not all provisions are enforced. All workers in the formal sector receive overtime pay for work beyond 44 hours, and there are prohibitions against excessive use of overtime. Unsafe working conditions are prevalent throughout the country. Fundacentro, part of the Ministry of Labor, sets occupational, health, and safety standards, which are consistent with internationally recognized norms. However, the Ministry has insufficient resources for adequate inspection and enforcement of these standards. There are 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 an employer, the worker or 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 committees for accident prevention in workplaces. It also protects employee members of these committees from being fired for their committee 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 depart a workplace when faced with hazardous conditions, workers may express such concerns to the internal committee, which would conduct an immediate investigation.