Eduardo Rezende Melo, President of The Brazilian Association of Child Protection and Juvenile Judges, District Attorneys and Public Defenders since 2002. His main activities areas are: protection of children and adolescent´s rights; training of juvenile judges, public prosecutors./district attorneys and public defenders; advocacy. He’s been trained on the Specialization in criminal law and criminology at the São Paulo State University and has got the Graduation in philosophy. Furthermore he is coordinator of one the two pioneer juvenile restorative justice program in Brazil, supported by United Nations Development Program (UNDP) and Brazilian Ministry of Justice, in São Caetano do Sul, SP-Brazil. coordinator of the Restorative Justice Training Center of the Judicial School of São Paulo State Tribunal.

QUESTION.- Can you please provide us a short description of the main activities and objectives of The Brazilian Association of Child Protection and Juvenile Judges District Attorneys and Public Defendants and what are your main functions?

ANSWER.- The Brazilian Association of Child Protection and Juvenile Judges, District Attorneys and Public Defenders is a national based association, with representatives in all federal States. Its aim is to improve the defence of children´s rights and, for this purpose, the work conditions of the judicial system. We do training (almost 4500 people/year) of all actors involved in the defence of children´s rights. Our advocacy strategies gear toward the Judicial System but also the National and Provincial Governments. We also propose to parliamentarians modifications in the legal system when necessary and foment the production of theoretical discussion on children´s rights with the presentation of thesis and experiences in our national congress. We have several publications as books on the right of education, sexual rights; rights of adolescents in conflict with the law; right to familial convivence among others; a review on children´s rights. We have a fortnightly newsletter and a quarterly newspaper. We are also developing pedagogical material to facilitate the defence of rights in all fields related to children´s rights.

Q.- What are the main characteristics and prerrogatives concerning the situation of children in conflict with the law in Brazil at both levels: federal and state?

A.- According to Brazilian legislation, a child is every person below 12 years old and an adolescent everyone between 12 and below 18.
In case of commitment of any conduct described as a crime, a child can only receive, by Guardianship Councils (Conselhos Tutelares), a protective measure. Guardianship Councils function as on-the-ground advocates for children. Each municipality is required to establish a five-member guardianship committee. These committees are responsible for monitoring compliance with the Statute, and intervening on behalf of vulnerable children.
The Protective measures regulated in art. 101 of the Statute of the Child and Adolescent (Estatuto da Criança e do Adolescente), passed in 1990 by the Brazilian National Congress are:

• Handing the child over to the responsibility of their parents by the Guardianship Counselor, with a formal record of the act.
• Inclusion in a temporary orientation, support or follow-up programme.
• Compulsory school enrolment and attendance.
• InclusIon in a communitarian or official support programme for the family, the child or the adolescent.
• Medical, psychological or psychiatric treatment, in a hospital or out-patient clinic.
• Inclusion in a communitarian or official treatment for drug addiction or alcoholism.
• Inclusion in a shelter.
• Placing in a substitutive family.

All protective measures can also be imposed to an adolescent if he/she commits a crime as the main State response to the crime or as a complementary provision in order to promote the adolescent’s social inclusion.

Legal procedures

All adolescents that have committed a crime are presented in a police station to make a brief register of the occurrence and are referred to a district attorney specialized in children’s rights.

It is important to mention that all decisions related to the socio-educational and protective measures that shall be imposed must consider an interdisciplinary study with the adolescent and his/her family (art. 186, paragraph 4, of the Statute).

Due process of law must be observed to the imposition of any measure (either protective or socio educational) if there is no consent by the adolescent and his/her family.
It is also important to note that no adolescent can be deprived of liberty more than 45 days during the legal procedure (art. 183 of the Statute).

Due process of law is established for all stages of the process, including during the execution of the measures.

Possibility of remission before the legal procedure

According to article 126 of the Statute, before the beginning of the legal procedure, the district attorney can give remission of any measure to the adolescent as a way of exclusion of the legal procedure. The adolescent and his/her family shall be heard informally by the district attorney, with legal assistance by a defender. If remission is accepted, the agreement is presented to the judge for the formal remission.

Remission can be given with protective measures, as listed above, and with socio-educational measures, except those that implicate deprivation of liberty.

Possibility of remission during the legal procedure

Remission can be given as well during the legal procedures, normally after the adolescent inquiry, by proposition of the judge and with consultation of the district attorney and the defender. In this case, remission implicates the extinction of the legal procedure. It can also include a protective or socio educational measure, except those that implicate deprivation of liberty (art. 126, paragraph one, of the Statute).

Due to the legal possibility of remission, restorative justice processes have been introduced in practice, involving victims and community support to empower all the stakeholders to deal with the crime in a more participative way.

If remission is not proposed or accepted, than the legal procedure is observed and a final decision is given, granting the right of legal defense to the adolescent.

Alternative Sanctions to deprivation of liberty

(Socio educational measures and the type of restrictions that can be imposed in each of them)

General comments

According to the Statute, socio educational measures have a double meaning and goal. They act as a sanction, to delimit an error committed according to the law and the responsibility to respond for it, but, at the same time, they promote conditions for the fulfillment of the adolescent’s necessities and for granting all his/her social rights.

Therefore, the 15 principles established by the National System for Socio educational services (SINASE – Sistema nacional de atendimento socioeducativo) are:

• Respect to human rights
• Co-responsibility of family, society and the State to promote and defend children’s and adolescent’s rights
• Recognition of the adolescent as a person in a particular situation of development and a subject of rights and responsibilities
• Absolute priority to all measures related to children and adolescents
• Legality
• Respect to due process of law
• Exceptionality, brevity and respect of the adolescent’s particular condition as a person in development (related to deprivation of liberty)
• Respect to the physical integrity and security of all adolescents;
• Respect to the adolescent’s capacity of accomplishment of the measure; observation of the circumstances, of the gravity of the infraction and the pedagogical necessities of the adolescent for the choice of each measure, with a preference for those that promote the strengthening of familial and communitarian bonds
• Institutional incompleteness, using communitarian services as much as possible and promoting responsibility of all specific public and general policies due to the adolescent
• Granting special services for disabled adolescents
• Local based services
• Political-administrative descentralization
• Democratic and participative management of all policies and programmes
• Co-responsibility by the federal, the provincial and local governments in funding the programs
• Mobilization of public opinion for the participation of all sectors in the society for granting adolescent's rights

SINASE has been established by the National Children's Rights Councils. There are also provincial and local councils that are responsible for the implementation of the Statute at the policymaking and juridical level. These councils are made up of an equal number of representatives from civil society (NGOs) and from relevant government institutions. Provincial and local councils are supposed to establish their own socio-educational plan, involving all actors with responsibilities towards adolescents that have committed crimes.

Alternative Sanctions to Deprivation to Liberty

The socio educational measures - according to Art. 112 of the Statute- are:

• Warning/admonish
• Redress of the harm caused to the victim
• Community service
• Parole
• Semi-liberty
• Deprivation of liberty in a special unit (internação)

During legal procedure, in case of deprivation of liberty, there are separate provisional units (internação provisória).

The State Department responsible for the programmes

Brazil is a federal State. It is established by art. 86 of the Statute that all actions related to children’s rights shall observe a systemic approach and be interconnected. In each State socio-educational programmes are under the control of different departments. In 2006, a national unified social assistance system (SUAS -Sistema Único de Assistência Social) has been created which regulates that socio-educational programmes should be included in this system, including the co-responsibility for funding.

All alternative sanctions are under responsibility of local authorities (or should be). Semi-liberty and deprivation of liberty are under responsibility of provincial authorities. All of them are subjected to judicial control.

Description of each measure (considering what kind of restrictions can be imposed in each of them, for how long, kind of activity expected by children, kind of restrictions imposed to children, timeframe of execution) as follows:

Warnings and admonishment are imposed by the judge, in a formal hearing, with the presence of the adolescent, his/her family, the district attorney and the defender. It is one single act, with no offense to the dignity and respect due to the adolescent.

Redress of the harm caused to the victim
In cases of patrimonial consequences only, the adolescent can be obliged to restitute the victim with the object that he/she has taken, to redress or compensate in anyway the victim’s loss.
In the case that compensating the victim is impossible, the measure can be substituted by any other. Once the obligation is accomplished, the measure is declared finished.

Community service consists of non-paid tasks with general interest for the community for no more than six months and eight hours per week in hospitals, schools, social services institutions or similar institutions, or in communitarian or official programmes.
All tasks are chosen following the capacities of the adolescent and cannot interfere in the adolescent’s school attendance or regular work.

Parole (liberdade assistida)

Purpose: follow up, help and assistance of the adolescent

Obligations of the educator:

• Promote socially the adolescent and his/her family, giving them orientation and including them in social services or communitarian/official programmes
• Follow up school enrolment, attendance and learning
• Grant the adolescent opportunities for learning a profession
• Submit a report to the judge

Activities expected from the adolescent:

• Attendance at least once a week at the programme
• School enrolment, attendance and learning
• Learning for a profession
• Attendance to services related to his/her family relationships, psychological needs
• Non-commitment of further crimes

Time frame of execution: minimum of six months.

The two other measures stated below imply deprivation of liberty.

Semi-liberty (semi-deprivation of liberty)

The adolescent must sleep in an institution but may go during the day to school and regular activities. There is compulsory school attendance and learning for a profession.

It can be imposed as an initial or transitional measure.

Time frame: it is not defined from the beginning and is always related to the adolescent’s performance. But it can last no longer than three years. The judge will establish a regular presentation of an interdisciplinary report to evaluate the possibility of finishing the measure or to allow the progression to a less severe measure.

Deprivation of liberty (internação)

Respect to the principles of brevity, exceptionality and respect of the adolescent’s particular condition of person in his/her developmental condition.

Time frame: not defined from the beginning and is always related to the adolescent’s performance. But it can last no longer than three years. The judge will establish a regular presentation of an interdisciplinary report to evaluate the possibility of finishing the measure or to allow the progression to a less severe measure.

The judge, after listening to interdisciplinary assistants, can allow external activities.

Pedagogical guidelines for every measure, according SINASE:

• Prevalence of pedagogical aspects over the punitive ones
• The Pedagogical project as the guideline of each action and management of the socio-educational services
• Adolescent participation in the construction, monitoring and evaluation of each socio-educational measure
• Respect of the adolescent’s singularities, educational presence and exemplarity as necessary conditions to the socio-educational action
• Adolescent’s comprehensible recognition and understanding of the consequences of his / her offence is required during the socio educational process.
• Directive approach in the socio educational process
• Discipline as a way to the realization of the socio educational action
• Horizontality of all information and knowledge in the institutional dynamic
• Special and functional organization of all socio educational services that may grant possibilities for personal and social development for the adolescent
• Respect to ethnic, gender and sexual orientation, diversity as a guideline in all pedagogical practice
• Familial and communitarian participation in all socio-educational activities
• Continuous formation of all social actors

Q.- The IJJO has recently developed the International Campaign, on legal assistance for children in conflict with the law, taking into account that you are the President of the Brazilian Association of Child Protection and Juvenile Judges, District Attorneys and Public Defendants; what is your perspective and point of view regarding legal assistance situation for children in conflict with the law?

A.- Legal assistance is granted for every adolescent in conflict with the law. Nevertheless, according to Brazilian Constitution there should be public defenders available for every person without conditions to afford a private lawyer. This legal service is not available in the country as much as necessary and is one of the topics in ABMP´s advocacy agenda. We consider that the actual and usual partnership between the Bar Association and provincial governments to grant legal assistance to adolescents is not enough, because in many cases those pro bono lawyers are not specialized in children´s rights.

Q.- What is the current legislation in force for the penal law on minors in conflict with the law in Brasil? Please provide us with the document link.

A.- The current legislation in force for the penal law on adolescents in conflict with the law is the Children and Adolescent Statute

Q.- What is the situation of juvenile in detention in Brazil and what about young adults in custody, are young adults allowed to finish their custodial measure within the juvenile justice system? Approximately how many minors are under custody currently?

A.- The situation of juvenile in detention in Brazil can be checked in the following document, a national research on deprivation of liberty.

Young adults remain in custody within the juvenile system if they have committed the crime before they turn 18, with a limit of permanence till they turn 21.

Q.- According to the child legal system in Brazil, are restorative justice measures foreseen?, in this case, are they implemented? and in which extent?

A.- Although not regulated by Law, restorative justice pilot projects have been implemented in Brazil with the support of the Ministry of Justice and UNDP.

Restorative justice in Brazilian schools (a preventive approach)
In accordance with ECOSOC Resolution, the Brazilian Ministry of Justice, with support of UNDP, has decided to implement in 2005 three restorative justice pilot projects, two of them related to Juvenile Justice (Porto Alegre/RS and São Caetano do Sul/SP).

In São Caetano do Sul/SP, the project aimed at the creation of:

1. Diversionary procedures and spaces for conflict resolution for school conflicts, which represented at that time one fourth of all files at the Court

2. Diversionary procedures and spaces for conflict resolution for community conflicts involving juveniles as well as family related conflicts;

3. Diversionary procedures for crimes committed by juveniles not related to the previous contexts.

The implementation strategy was designed with participation of the Guardianship Council, the Municipal Council for Children’s and Adolescent’s Rights, the Municipal Educational Secretary, the Bar Association, the Civil and Military Police and the Municipal Civil Guard.

All the public schools have been involved in the project, were heads of the schools have been trained to understand the impact of restorative practices in the school pedagogical project as well as the importance of non criminalization of conducts (Riyadh Guidelines, art. 1, “e” and “f”).

At the same time, a neighborhood-to-neighborhood action has been developed in one community which had the worst indicators. The basic perspective is an invitation for reflection on the conditions of local social development of the neighborhood and of other community action roles in the resolution of its problems in partnership with the public powers. It is conceived then, that the communitarian spaces can provide more adequate conditions for the promotion of collective security conditions without creating social exclusion; by contributing to the involvement and empowerment of common citizens in the communitarian problems. This would be based on informal manifestations of social control and act with an approach to conflict and problem resolution confronting its social dimension. As schools are open on the weekends for community activities, facilitators specifically trained stay there on duty to help in the resolution of all conflicts presented to them or referred to them by the Juvenile Court or other public or non-governmental programmes.

Therefore people from the community have been trained as well as teachers, faculty, parents, students and court social workers as restorative and community facilitators in three different spaces: community, schools and at the Court itself.

The project was structured in three axes of action:
I) Restorative circles and practices that count on the participation of the ‘victim’, the ‘offender’, their stakeholders, significant people of the community – often including the Tutelary Council – and normally two facilitators.

II) Transformation of institutional practices (school, Judiciary system and network of public services), empowering all involved in the conflicts and the community itself to allow them, with special support and facilitation, to be; responsible for the conflict resolution, prioritizing non-judicial conflict resolution strategies, while preserving all legal guarantees, including the possibility of judicial revision of all plans of action if any human right is violated.

III) Prevalence of prevention strategies, social inclusion and promotion of social rights, through the avoidance of conduct labeling. As well as the participation in programmes in restorative circles that could help all stakeholders to receive support for treatments or welfare services. If needed, a special system of referral can be implemented in order to provide the city´s attorney general of necessary information to demand, through class actions, the respect of those rights.

In three years of implementation the project has had the following results:

General view:

• Number of restorative circles: 260
• Number of plans of action resulted from restorative circles: 231
• Number of accomplished plans: 223
• Percentage of plans in comparison with the total amount of circles: 88,84%
• Percentage of accomplished plans among the total of plans: 96,53%
• Number of people directly involved in the conflicts: 532
• Number of stakeholders that have participated in the circles: 490
• Total amount of participants: 1022

The project spread to seven different cities in the State of São Paulo (the capital, Guarulhos and Campinas, the major ones; São José dos Campos, Presidente Prudente, Atibaia and Bragança Paulista) and now is reference to its dissemination in the State of São Paulo as a whole.

Q.- What instruments do the Brazilian and Federated State dispose to help to prevent juvenile delinquency? What kind of programs are running currently? What is the juvenile reoffending rate in Brazil?

A.- There is no preventive plan for juvenile delinquency in Brazil. ABMP has two actions on this topic: participation in the elaboration of a new project of law related to execution of measures, where we have inserted an article obliging federal government to prepare a preventive plan; organization of 5 regional seminars on indicators in different areas, aiming to discuss in the State of São Paulo the fifteen Juvenile Justice Indicators defined by UNICEF/UNODC, among which that related to the existence of a national plan for the prevention of child involvment in delinquency.

There isn´t either national data collection on juvenile delinquency. Therefore it is imposible to establish the national reoffending rate in Brazil. There are propositions to create a national data system, with support of ABMP, but it isn´t ready yet.

Q.- What circumstances are meant by 'risk factors' nowadays in Brasil regarding future delinquency? What is the actual juvenile delinquency situation in Brazil?

A.- It is not possible to answer as there is no preventive plan nor national statistics on delinquency.

Q.- Regarding the juvenile justice system across Latin America, what kind of collaboration does exist between Brasil and the other countries? Do exist any agreements? 

A.- Niñosur is part of MERCOSUL, a regional association of countries in South America, relate to children´s rights issues. In this context, there are collaboration between the countries, specially to avoid child trafficking and sexual exploitation. There are some exchange programs between countries in South America regarding juvenile justice and the Judicial System. ABMP has a partnership with the Mercosul Association of Juvenile Judges.

Q.- What psychological, mental help resources are available for youths with such needs in Brasil (meaning minors living with augmented risk factors and actual offenders as well)? Are there officially (i.e. inside Brasilian jurisdiction) any specific units for this target group?

A.- Adolescents who are subjected to alternative sanctions receive special psychological attention by public services.
According to the Guidelines of Health Ministry, there should be Centers to the psychosocial attention to adolescents in every city with more than 20.000 inhabitants. Psychological programs must be integrated to other services, specially those related to the national system on socioeducational attention.

Kind of support (including network)

Eight axes of support have been established in SINASE. Institutional and pedagogical support to the programmes responsible for each socio-educational measure. There are common and specific provisions for each programme/measure

• Respect to ethnic, gender and sexual orientation diversity
• Education
• Sport, culture and leisure
• Health
• Familial and communitarian approach
• Learning, professional schools, work and social security
• Security

Existence of regulations for human and material resources needed for the execution
SINASE has established standards for human resources and architecture for all units that develop socio-educational programs.
For community service, it has established that each program shall have a coordinator, and one educator with special formation of 20 adolescents each, and is responsible for the assistance and orientation of all adolescents. This educator remains in the program and is responsible for the elaboration with the participation of the adolescent and his/her family of a socio educational plan with all the activities that the adolescent must accomplish and the support that must be provided to him/her. This plan is submitted to the judge in a formal hearing with the adolescent, his/her family, the defender and the district attorney. If approved, then the adolescent begins to accomplish it. In each institution where the adolescent should realize the services, there must be a socio-educational reference for each group of 10 adolescents. This is a person of the institution itself that is trained to coordinate all work realized by the adolescents. There must be also someone responsible for the orientation of these adolescents, therefore an advisor who is responsible for 2 adolescents each, is employed in order to respect their singularities.

For parole, there must be technicians from different areas, granting psychosocial attention as well as legal services. Each educator shall take under his/her responsibility at most 20 adolescents.

Q.- What is your analysis of brasilian children’s situation after the III World Congres against Sexual Exploitation of Children and Adolecents?

A.- The propositions made in the 3rd World Congress are related to the improvement of legal system on sexual rights of children, the specialization of child protection and criminal courts to deal with crimes against children, the improvement of child hearing´s, the integration and articulation of public policies.