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TITLE: BRAZIL HUMAN RIGHTS PRACTICES, 1993 DATE: JANUARY 31, 1994 AUTHOR: U.S. DEPARTMENT OF STATE BRAZIL Brazil, with a population of over 150 million, is a constitutional federal republic comprised of 26 states and the federal district. In an April 1993 plebiscite, Brazilian voters endorsed the presidential system and rejected a proposal to adopt a parliamentary form of government. Elections have been free and fair since the transition from military to civilian government was completed during the 1980's. The previous president, Fernando Collor, was impeached and removed from office by Congress in 1992 on charges of corruption, 3 years after his election. His Vice President, Itamar Franco, is serving out the last 2 years of Collor's term. The next elections, to be held in late 1994, will choose a president, two-thirds of the Senate, 503 federal deputies, 27 governors, and members of state legislatures. Security forces in Brazil fall under federal or state control. The state police, the focus of many human rights complaints, are divided into two forces: the civil police, with a largely investigative role, and the uniformed, so-called military police (actually civilians employed by state governments), who are responsible for maintaining public order. Crimes committed on duty by military police come under the jurisdiction of special military police courts, set up by the states, not by the armed forces. Legislation is now before the Senate to change the jurisdiction to civilian courts when military policemen are charged with murder and other capital crimes. Brazil's federal police is a small, specialized force dealing with violations of federal law, tax evasion, narcotics, and transboundary issues. The police, particularly those under state control, were responsible for numerous human rights abuses, including extrajudicial killings and serious physical abuse of detainees. These abuses are seldom punished. Brazil's economy was plagued by one of the highest inflation rates in the world, with an annual rate of over 2,400 percent. Government plans to cut spending and borrowing and to increase tax collections had made little impact by the end of 1993. Large disparities in income distribution characterize Brazilian society, with the poorest 20 percent of the population sharing only 2 percent of the national income. The richest 20 percent have 26 times the income of the bottom fifth, and an estimated 32 million Brazilians every day received a less than adequate diet. Extrajudicial killings continue to be the principal human rights problem in Brazil. Killings of criminal suspects and minors by vigilante groups, often including members of police forces, usually go unpunished. There is also widespread violence against women and the poor, who are predominantly from racial minorities or of mixed race. In rural areas, landowners and their agents frequently resorted to threats and violence, including killings, against activists. A confrontation between invading gold miners and Yanomami Indians, along the Venezuelan- Brazilian border, resulted in 16 deaths. Charges of genocide have been brought against 23 miners. Only 2 were taken into custody; they were released on December 29 when their trial was delayed owing to difficulty in locating witnesses. A special investigating committee of the Congress estimated that as many as 500,000 minors work as prostitutes. Some 16,000 rural workers were rescued from forced labor without pay, but the Labor Ministry says it cannot investigate all reports of forced labor due to lack of resources. Cases of egregious human rights violations were generally not effectively investigated or prosecuted, and a widespread climate of impunity remains the greatest obstacle to improving human rights in Brazil. In two notorious Rio de Janeiro cases in 1993, however, police accused of participating in killings are under arrest, awaiting trial. This represents progress, but the key will be whether the investigations result in credible prosecutions with appropriate punishment of the perpetrators. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom from: a. Political and Other Extrajudicial Killing Extrajudicial killings remained an extremely serious human rights problem in Brazil in 1993. At least several hundred Brazilians die annually as a result of extrajudicial killings committed by various elements, including police, vigilante groups, landowners and their agents, and invaders of indigenous territories. In urban areas, police and vigilante groups, often composed of members of the police force, were responsible for numerous killings of criminal suspects, street children, and slum dwellers. Domestic and international attention paid to some of these killings provoked a public reaction which led to the arrest of several police officers and others suspected of involvement in the killings. However, in most killings of criminal suspects, street children, rural labor leaders, and indigenous peoples, those responsible are not brought to trial or convicted. Obstruction of justice by local elites and widespread public apathy contributes to Brazil's climate of impunity. Rural landowners intimidate local populations and law enforcement authorities in order to impede investigations into killings of rural laborers and landless people's advocates. The high crime rate, the failure to apprehend most criminals, the slowness and alleged corruption of the criminal justice system, and the legal requirement to release those charged pending trial contribute to public acquiescence in police brutality and killings of criminal suspects. Investigations into these incidents are hampered because witnesses hesitate to cooperate with authorities for fear of retribution or because they and the general public often sympathize with the actions of the vigilantes. In Rio de Janeiro, 31 military policemen were accused of murdering 21 residents in the Vigario Geral slum on August 31, in revenge for the earlier killing of 4 policemen in the neighborhood. All but three of those indicted in the Vigario Geral killings are in custody. One of the accused, a former police officer, is serving as a member of the Rio de Janeiro state legislature and can be arrested only if the legislature revokes his parliamentary immunity. Five military policemen were indicted for killing eight street children in Rio's Candelaria Square on July 23. Police statistics released after the Candelaria killings showed 328 minors had been killed between January and June in Rio alone. In recent years, human rights groups credibly claimed that police in Brazil's largest city, Sao Paulo, appear to follow a policy of killing criminal suspects rather than arresting them. Police killed 1,470 individuals in "confrontations" in 1992, compared with 585 deaths in police actions in 1990. The number of killings dropped sharply following the firing of the state Secretary of Security for his role in the 1992 Carandiru Prison massacre and the negative publicity it generated. This strongly suggested that police killings are controllable; and the number of such killings dropped to 409 in 1993. Broad press coverage, both domestic and international, generated by the Candelaria and Vigario Geral killings brought swift investigations and identification of the accused murderers in those cases. However, in most similar killings, no one is charged, and the police fail to carry out effective investigations. The victims in Candelaria and similar cases are poor and mostly black. Human rights organizations credibly charge that most are killed by extermination squads, who employ current or former police officers. Investigation of charges of police abuse is often slow and uncertain, with many witnesses afraid to testify against police for fear of retaliation. For example, Edmeia da Silva Euzebio was shot and killed on January 15, 8 days after testifying against police accused in the disappearance her son and nine other youths in 1990. The accused murderer of Da Silva was acquitted for lack of evidence. It has been estimated that less than 20 percent of the cases against the police brought to trial in police courts ever result in conviction. (Police courts are special courts with jurisdiction over the state police; see Section 1.e.) Human rights groups credibly claimed the police used unnecessary lethal force in storming the Carandiru Prison in 1992. The police involved in the incident are being tried in police court. Only 57 of the 120 accused had been questioned as of the end of 1993. There are only four police court judges to handle 14,000 cases pending against police in Sao Paulo. Given this backlog, state legislators estimate that it may be 10 years before verdicts are reached in the Carandiru case. There continue to be reports of murders of homosexuals. Sao Paulo newspapers reported that 3 transvestites were murdered on March 14; other reports claimed 17 transvestites were killed in the first three months of 1993. One military policeman was charged in the March 14 killings and was awaiting trial at year's end. Homosexual rights groups claim, however, that the vast majority of perpetrators of crimes against homosexuals go unpunished. Police violence also occurred in rural areas. In the northeastern state of Alagoas, police were suspected in 80 percent of the 600 murders committed during 1992. The public demanded federal action after three particularly egregious police crimes: the military police killing of the civil police chief; the assassination of a small town mayor by police working for his rivals; and the murder and dismemberment of a crusading city councilman, also known to be homosexual. Most rural killings involved land disputes. The pastoral land commission of the Catholic Church reported that 46 persons were murdered in 1993 as a result of land disputes, compared to 35 in 1992. The increase in killings was accompanied by families being forced off farms by threats, violent intimidation, and physical expulsion. The body of the vice president of the rural workers' union of Araguaina was found floating in a river a week after he disappeared in March. Two landowners were killed in ambushes in September near Rio Maria, leading to abusive police tactics against squatters and secret arrests without cause, according to the local priest, Father Ricardo Rezende. On September 19, a band of men using military-like uniforms wiped out a squatter settlement near Tucuman, killing at least four persons, with three others reported missing. In the state of Para, where more rural workers and their leaders have been killed than in any other state, only one gunman was convicted of murder in 1993, and no landowner has ever been convicted for paying for the killings. The 1990 case of the murder of rural workers' union leaders Jose and Paulo Canuto was still pending in the courts; the investigative stage in the case of their father, Joao Canuto, who was murdered in 1986, has finally been concluded. The case of the landowner accused of hiring a gunman in 1991 to kill Expedito Ribeiro de Souza, head of Rio Maria's rural union, remained unresolved at year's end after a June 30 trial was postponed. In a rare case where a landowner was convicted and jailed for murder, Darli Alves and his son Darci, the killers of rubber-tapper leader Chico Mendes, escaped from the Acre state prison February 15. Human rights groups charge the escape was aided by state authorities. A federal manhunt failed to find them, and they remained at large. On March 23, the Supreme Court upheld the conviction of Darli Alves, which had been overturned by a state appeals court. Another environmental activist and union organizer, Paulo Vinha, was shot in the state of Espirito Santo on April 28 while investigating a sand mining operation inside an ecological reserve. Two brothers who own the mining company were arrested on charges of murdering Vinha. b. Disappearance There were no reports of politically motivated abductions. The disappearance of street children or persons believed to be criminals is often attributed to police or vigilante groups. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Torture is prohibited by the Constitution, which contains severe legal penalties for torture or acquiescence in torture. Although an Americas Watch report found that the use of torture had declined among Rio de Janeiro and Sao Paulo police, there continued to be frequent credible reports that police beat and torture criminal suspects to extract information, confessions, or money. In the state of Ceara, a bar association team in a surprise visit to a local police station found Antonio Braga bound with instruments of torture around him. He said he had confessed to stealing a television set only after beatings, shock, and near asphyxiation. Ceara's governor fired the Secretary of Public Security, and ordered the suspension, pending an investigation, of a police official and four officers found torturing the suspected thief. The police Inspector General in charge of investigating the torture allegations resigned 3 months later after receiving death threats. A spokeman for the Ceara bar association reported that 17 other cases of torture had been documented through testimony and physical exams. Brazil's overcrowded prisons held 126,152 inmates in space designed for 51,368. A May declaration signed by 39 human rights organizations stated that "abuses, both physical and psychological, and corruption represent the routine reality of the Brazilian prison system." A federal investigation into charges of abuse in Recife's prisons found that prisoners reported electric shocks, near drownings, beatings, withholding of food, and extended solitary confinement. The inspector found prisoners held beyond their sentences, untreated AIDS and tuberculosis, and guards selling their uniforms to prisoners planning to escape. A followup visit by a federal commission was canceled, and human rights monitors have been denied access to the Recife prison since this inspection. Conditions in juvenile detention centers continue in violation of Brazil's statutes regarding juvenile offenders, due to overcrowding and lack of resources. Sao Paulo's main juvenile facility, where rioting broke out twice in 1992, was the scene of another riot in March 1993. Human rights organizations said at least 75 of the 117 inmates in the wing where the revolt took place were beaten by authorities. d. Arbitrary Arrest, Detention, or Exile The Constitution limits arrests to those caught in the act of committing a crime or those arrested by order of a judicial authority. The constitutional provision for a judicial determination of the legality of detention is usually respected, 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. This period may be extended by judicial order. Illegal and incommunicado detention without a judicial order, particularly of street youths and children, remained a problem. A juvenile court judge in Porto Alegre complained that pretrial detention of minors often exceeded the legal limit. A legislative report in Rio Grande do Sul also criticized a judge who ordered an AIDS patient confined to a mental asylum without any legal foundation. e. Denial of Fair Public Trial The judiciary is an independent branch of government. The judicial system, with the Federal Supreme Court at its apex, includes courts of first instance and appeals courts. States organize their own judicial systems but must adhere to the basic principles in the Federal Constitution. Brazil also has a system of specialized courts dealing with police, labor, electoral, juvenile, and family matters. Special police courts have jurisdiction over state police; the record of these courts shows a clear reluctance to punish colleagues for human rights abuses. This has created a climate of impunity that encourages further abuses. Police courts do not have jurisdiction over civilians. Elected officials are immune from arrest and trial until the end of their term in office unless impeached; thus the impunity of the governor of Paraiba, Ronaldo Cunha Lima, who shot his precedessor and political rival at point blank range in a restaurant November 5 and continues to govern. His party controls the state legislature and refuses to impeach him. The right to a fair public trial, as provided for by law, is generally respected in practice, although local judges often demonstrated bias in favor of landowners in cases related to squatters' claims and to the murder of rural activists. The accused in the shooting case of Mariano Domingo Freire, the leader of the Small Farmers' Association in Pernambuco, is still at large because the court in the accused's hometown failed to respond to another court's request that he be turned over for trial. Defendants are entitled to counsel and must be made fully aware of the charges against them. In cases in which a defendant cannot afford an attorney, one must be provided at public expense; private attorneys are appointed to represent poor defendants when public defenders are unavailable. Defendants and their attorneys have the right to be informed of the evidence on which charges are based. Only cases of willful crimes against life are tried by jury; all others are tried by a judge. The judicial system is highly inefficient; many cases continue for years. The need for court reform is widely recognized in the legal and judicial community. In Pernambuco state, 16 judges were under investigation for corruption, and 3 were suspended. Charges against the judges included partiality, nepotism, and extortion. In one case, a military police court judge was charged with deliberately misfiling and thus stopping 1,450 cases against police officers. The Inspector General and human rights lawyers have received death threats as a result of their investigations of the Pernambuco courts. On the other hand, a single judge in Rio de Janeiro, Denise Frossard, was hailed by the press and the public for daring to convict 14 notorious racketeers who control the lucrative numbers games in that city. The racketeers were well known, but had operated with impunity until Judge Frossard sentenced them to 6 years' imprisonment. Appeals were pending at year's end; Judge Frossard's life has been threatened. The high level of crime and the perceived failure of the judicial system to deal with criminals contributed to public tolerance of most police killings and vigilante killings of suspected criminals by irate citizens. Cases were reported in all regions of the country. In Recife, a mob of 100 beat 3 men to death after the men killed a retired nurse. Police have not located any witnesses to testify against anyone in the mob. In Rio de Janeiro, three men were beaten, doused with gasoline, and burned to death after being mistaken for thieves. Drug gangs are known to maintain their own system of order in Rio's slums; in the Borel slum in December 1992, drug lords rounded up and shot through the hand 17 youths who had been mugging the gang's customers, scaring away business. The youths who sought medical treatment were afraid to talk about who wounded them, and the slum residents expressed satisfaction at the gang's action. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence The Constitution provides for freedom from arbitrary intrusion into the home. There were no reports of illegal entry for political reasons, but illegal entry into homes without a warrant occurred in searches for criminal suspects. A report by the state legislature of Rio Grande do Sul found that searches without warrants, theft of property, and threats against the victims were often a police practice. A bar association leader in Rio de Janeiro said police routinely enter slum dwellings on the grounds that such structures do not meet the legal definition of domiciles. Wiretaps are unconstitutional except when authorized by a judicial authority for purposes of criminal investigation and prosecution. The inviolability of private correspondence is respected. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press The right to free speech and to a free press as provided by the Constitution is widely exercised, although government officials are sometimes successful in imposing restraints (see below). The 1988 Constitution abolished all forms of censorship. Foreign publications are widely distributed in Brazil; prior review of films, plays, and radio and television programming is practiced only to determine a suitable viewing age. 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; the Government, through Congress, controls licensing authority. Newspapers, which are privately owned, vigorously report and comment on government performance. Government officials frequently use libel regulations and other laws to respond to critics in the press. In a small town in the state of Santa Catarina, a newspaper publisher was jailed for 3 weeks by a judge on charges of "offending public morals" because his paper criticized local officials. A local judge in the state of Tocantins attempted to censor newspapers and television by prohibiting news of misuse of funds by an ex-governor. By bringing libel charges, former President Collor kept off the air a television drama series based on the events leading up to his impeachment. b. Freedom of Peaceful Assembly and Association The Constitution provides for the right to assemble peacefully, and this right is respected in practice. Permits are not required for outdoor political or labor meetings, and such meetings occur frequently. c. Freedom of Religion There is no favored or state religion. The majority of Brazilians belong to the Roman Catholic church, but Protestant churches have been expanding, and spiritism is widely practiced. All faiths are free to establish places of worship, train clergy, and proselytize, although the Government controls entry into Indian lands. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation There are no restrictions on movement within Brazil, except for the protected Indian areas, nor are there any restrictions on emigration or return. Some towns in the south, however, were reported to be trying to block the entry of poor migrants from the north. Brazil admits few immigrants, does not formally accept refugees for resettlement, and is selective in granting asylum. Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government The Constitution provides for the right of citizens to change their government through free elections. Executive and legislative offices throughout the country at local, state, and national levels are filled through democratic direct elections among candidates representing many political parties. Voting is secret and mandatory for all literate Brazilian citizens aged 18 to 70, except military conscripts who may not vote. It is voluntary for minors aged 16 to 18, for the illiterate, and for those aged 70 and over. Women have full political rights under the Constitution, and they are becoming active in politics and government, but few are in leadership positions. Only 5 percent of the seats in the Federal Congress are held by women. Indians were given the franchise under the 1988 Constitution, but they are essentially marginalized from the political process. A plebiscite on whether to change from the presidential form of government to a parliamentary system, with the possibility of a constitutional monarchy, was held in April 1993. A majority of those voting chose to keep the presidential system; 25 percent favored a parliamentary system; and only 10 percent, a monarchy. Over 40 percent of the electorate, however, declined to make a choice either by casting null or blank votes or by staying away from the polls. Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights Brazilian nongovernmental organizations (NGO's) actively investigate allegations of human rights violations and often initiate legal proceedings. Several international NGO's either maintain offices in Brazil or visit periodically. The Foreign Ministry barred two diplomats from visiting the Yanomami reserve after a massacre (see section 5). By subsequently requiring diplomats to obtain prior permission for visits to Indian reserves through the Foreign Ministry, the Federal Government has significantly increased the possibility of delayed or restricted access. The Foreign Ministry accepts human rights questions from international groups and transmits human rights inquiries to relevant federal and local authorities. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status Discrimination on the basis of sex, race, religion, and nationality is unconstitutional but continued to be a problem. Women The Constitution prohibits discrimination based on sex in employment or salaries and provides for 120 days of paid maternity leave. The provision against wage discrimination is rarely enforced, however, and, as a reaction against the maternity leave law, some employers seek sterilization certificates from prospective employees or try to fire or avoid hiring women of childbearing age. There is a high incidence of physical abuse against women, and 125 cities have established special police offices to deal with crimes against women. A special study by an international human rights group found that over 70 percent of all reported cases of violence against women take place in the home. A Sao Paulo state study concluded that more than 50 percent of rapes are committed by a family member and that investigation and prosecution are rare. In the city of Porto Alegre, police registered 1,500 domestic violence complaints per month, but were not aware of any convictions of husbands for wife beating. Women's rights leaders explain that police prefer to mediate family disputes rather than bring charges, and that women are too often dependent upon men for their livelihood to consider demanding punishment. Although the archaic concept of "defense of honor" as a justification for wife murder was struck down by the Supreme Court in 1991, courts are still reluctant to prosecute and convict men who attack their wives. In one case, a woman from the state of Rondonia was badly burned by a jealous boyfriend; her attacker was acquitted by a state court, even though he had been charged with the lesser charge of committing bodily harm rather than attempted murder. Children Many children suffer physical abuse and deprivation. Of 60 million children and adolescents, an estimated 53 percent are part of families whose per capita income is under half the monthly minimum wage. Consequently many children under 18 are found working on the streets of cities or in the fields beside their parents (see Section 6.d.). There are no reliable figures on the number of street children, some of whom are homeless but most of whom return home at night with whatever money they can contribute to the family. Although Brazil has relatively advanced laws to protect children and adolescents, and federal, state, and local councils have been formed to address their problems, the reality for children is still grim. In addition to the killings of street children (see Section 1.a), an estimated 500,000 minors--some only 9 years of age--are involved in prostitution, according to a Congressional investigation. Although prostitution is widely tolerated, two police raids were organized against houses of prostitution in gold mining camps, where young girls were held forcibly. In November police freed 92 adolescent girls and 30 girls, aged from 8 to 12, from three dozen mining camps in Rondonia state. Ten brothel owners were arrested. Illegal abortions are common in Brazil, and one-fifth of the deaths of adolescent girls are attributed to botched abortions. Indigenous People Brazil's approximately 250,000 Indians, who speak 170 different languages, have a constitutional right to their traditional lands. In practice, however, many indigenous peoples have only a very limited ability to participate in decisions affecting their lands, cultures, traditions, and the allocation of natural resources. The Federal Government was charged with demarcating 519 indigenous areas within 5 years after the 1988 Constitution was enacted. However, legal demarcation and issuance of titles for only half those areas were accomplished by the October 1993 deadline. Congress has not yet passed laws to implement constitutional provisions with respect to Indian rights, and indigenous groups are marginalized from the political process. The Constitution gives Indians the exclusive use of the soil, rivers, and lakes located on their lands, while the Federal Government holds the authority to develop mineral resources found under Indian lands, as long as the Indians receive a share of the proceeds. Legal regulations for development have not been enacted, but illegal mining and timber cutting are a constant problem on Indian lands. In one small victory for Indian rights, a federal judge ordered a timber merchant to compensate the Nhambiquara Indians for wood valued at $40,000 which had been taken from an Indian reserve in the state of Mato Grosso. This sum is dwarfed by the amount of money being taken from economic exploitation of these lands by nonindigenous people. Brazilian gold miners, working illegally on Yanomami Indian lands, killed 16 Indians--including women and children--from the Haximu village on the Brazil-Venezuela border and burned down their village in August 1993. Brazil and Venezuela launched investigations into the massacre, arrested 2 miners, and issued warrants for 21 more. The two taken into custody were released on December 29 when their trial was delayed owing to difficulty in locating witnesses. There have been no convictions, however, in any previous case involving the murder of Indians. Federal police investigations into the killings of 10 other Yanomami since 1987 yielded no results. Ten years after the murder of Guarani leader Marcal Tupa-y, who had represented Brazil's indigenous people in a 1980 meeting with Pope John Paul II, the two accused landowners were acquitted by a jury in Mato Grosso do Sul on March 29, 1993. Two years after two Atikum Indian leaders were gunned down in the state of Pernambuco, their killers are still at large despite warrants for the arrest of four suspects. The Catholic Church's Indigenist Council reported in mid-December that 42 Brazilian Indians had been murdered so far in 1993. Twenty-four Indians were murdered in 1992. Other problems are the high number of suicides among Indians and deaths from diseases such as malaria, measles, and cholera, introduced into Indian areas by outsiders. The Federal Government failed to provide enough funding for adequate health care for Indians. National/Racial/Ethnic Minorities Although racial discrimination has been illegal since 1951, darker-skinned Brazilians frequently encounter de facto discrimination. Most black Brazilians are found among the poorest sectors of society. Even though nearly half of Brazil's population has some African ancestry, very few senior officials in government or the armed forces are black. There are few blacks in senior private sector management positions. Black consciousness organizations challenge the view that Brazil is a racial democracy with equal treatment regardless of skin color. Racial discrimination becomes most evident when blacks seek employment, housing, or educational opportunities. Blacks are more likely to be stopped by police and to bear the brunt of police brutality. Data on the murders of street children in major cities show that the victims are disproportionately black. In March the state of Sao Paulo created a commission on racism and a special police office to handle racially motivated crimes, in response to violent, racist attacks by "skinhead" gangs. The first complaints to the antiracist police office, however, involved racial slurs made by police and employers. In the state of Espirito Santo in June, charges of racism were brought against a businesswoman and her son who told a young black woman she had no right to use the front elevator in their luxury apartment building. The case gained unusual prominence because the young woman was the daughter of the state's governor, and it illustrates a curious ambivalence about race in Brazilian society in which many blacks suffer indignities while a few exceptions are elected to high office. People with Disabilities The 1988 Constitution contains several provisions for the disabled, guaranteeing a minimum salary, educational opportunities, and access to public buildings as well as public transportation. As is the case with many other provisions of the Constitution, no legislation has been enacted to implement these objectives. Section 6 Worker Rights a. The Right of Association The Labor Code has long provided for union representation of all Brazilian workers (excepting military, military police, and firemen), but imposed a hierarchical, unitary system, funded by a mandatory "union tax" on workers and employers. Under a restriction known as "unicidade" (one per city), the Code prohibits multiple unions of the same professional category in a given geographical area. It also stipulates that no union's geographic base can be smaller than a municipality. Workers in a union whose numbers increased (as when an industry grew) could petition the State to split a preexisting union into two or more unions. The 1988 Constitution frees workers to organize new unions out of old ones without prior authorization from the Government but retains other provisions of the old Code. The retention of unicidade and of the union tax continues to draw criticism both from elements of Brazil's labor movement and from the International Confederation of Free Trade Unions (ICFTU). In practice, however, unicidade has proven less restrictive in recent years, as more liberal interpretations of its restrictions permitted new unions to form and--in many cases-- to compete with unions and federations that had already enjoyed official recognition. The sole bureaucratic requirement for new unions is to register with the Ministry of Labor which, by judicial decision, is bound to receive and record their registration. The primary source of continuing restriction is the system of labor courts, which retain the right to review the registration of new unions and to adjudicate conflicts over their formation. Otherwise, unions are independent of the Government and of political parties. Approximately 20 to 30 percent of the Brazilian workforce is organized, with just over half of this number affiliated with an independent labor central. (Mandatory labor organization under the 1943 Labor Code encompassed a larger percentage of the workforce, but many workers are believed to have minimal if any contact with these unions.) Attacks on rural labor organizers continued (see Section 1.a.). The Constitution provides for the right to strike (excepting, again, military, police, and firemen, but including other civil servants). Enabling legislation passed in 1989 stipulates that essential services remain in operation during a strike and that workers 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. Federal and civil police, federal customs inspectors, port crane operators, public and private bus drivers and fare collectors, train and ferry operators, public and private teachers, and federal and state government employees went on strike in 1993. Formerly, the courts ruled virtually automatically that strikes were abusive; over the last several years, however, the courts have applied the law with more discretion. The 1989 strike law prohibits firings or the hiring of substitute workers during a strike, with certain exceptions and provided the strike is not ruled abusive. Nonetheless, some strikers were fired, with relief available only through a usually lengthy court process. The president and a number of directors of the National Aeronautical Workers' Union were fired by Varig and Vasp airlines after a February 1988 strike. Some were subsequently rehired, but the then president and five directors have remained without work, and their labor court cases are still pending. Although Brazilian laws make no provision for a central labor organization, three major groups have emerged: the Sole Workers Central (CUT), the General Workers Confederation (CGT), and Forca Sindical. Although the centrals do not have legal standing to represent professional categories of workers, all three centrals can effectively acquire such standing by affiliating existing statewide federations or nationwide confederations, or by forming new federations and confederations, challenging the old structure. However, the status of the federations and confederations created since 1991 remains in doubt as a result of a challenge in the labor courts by the old organizations. Unions and centrals are free to affiliate internationally. CUT, Forca Sindical, and CGT are affiliated with the ICFTU. A small splinter organization, the General Workers Central, affiliated with the formerly Soviet-controlled World Federation of Trade Unions in March 1993. b. The Right to Organize and Bargain Collectively The right to organize is provided for by the Constitution. With some government assistance, businesses and unions are working to expand and improve mechanisms of collective bargaining. Nevertheless, under current Brazilian law, the scope of issues susceptible to collective bargaining is narrow. Further, the labor court system exercises normative powers with regard to the settlement of labor disputes, thereby discouraging direct negotiation. Existing law charges these same courts, as well as the Labor Ministry, with mediation responsibility in the preliminary stages of dispute settlement. Wages are set by free negotiation in many cases, and in others by labor court decision. Beginning in 1990, the Federal Government attempted to control salary increases in order to limit inflation, but the attempts appeared to have little effect on wage settlements in the private sector. The Constitution incorporates a provision from the Labor Code which 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. For example, in the case of 12 directors of the Metalworkers' Union of Limeira (Sao Paulo state) removed from their jobs by employers in 1989, judicial actions were still under way against the companies. In general, enforcement of laws protecting union members from discrimination lacks effectiveness. Union officials estimate that some 5 percent of such cases reaching the labor court system are resolved within days through a preliminary judicial order. The other 95 percent generally take 5 to 10 years (and sometimes more) to resolve. Labor law applies uniformly throughout Brazil, including the free trade zones. However, the unions in the Manaus free trade zone, like rural unions and many unions in smaller cities, are relatively weaker vis-a-vis industry as compared to unions in the major industrial cities in the southeast. c. Prohibition of Forced or Compulsory Labor Although the Constitution prohibits forced labor, there were repeated credible citations of cases of forced labor in Brazil. The Federal Government asserted it was taking steps to halt the practice and prosecute perpetrators but admitted that existing enforcement resources are inadequate. Reports of forced labor and debt bondage were common in rural areas in particular. In 1993 the Catholic Church's Pastoral Land Commission denounced a notable increase from 1991 to 1992 of persons confined to farms and forced to work without pay (from 4,883 persons to 16,442 persons), and projected a continuation of the problem into 1994. Of these persons, 8,000 were forced to work in a single charcoal production operation in Mato Grosso do Sul. During 1993 cases of forced labor also were reported in the following states: Bahia, Maranhao, Minas Gerais, Mato Grosso, Para, Parana, Rio de Janeiro, Rio Grande do Sul, Santa Catarina, and Sao Paulo. Forced labor was reportedly involved in another case in charcoal for use in producing exported steel and (along with child labor--see below) in production of sugar for export. A provision in the 1993 Agricultural Reform Law provides for the confiscation of property in cases of slave labor, but this law is unlikely to have significant impact without extensive enforcement. State and federal authorities often did not investigate reports of compulsory labor, claiming lack of resources. Local police admitted that overseers or owners of many farms withheld pay from migrant laborers, using force to retain and intimidate them. Jurisdiction for such violations falls to the Ministry of Labor, which has allocated insufficient resources for enforcement. In 1993 the International Labor Organization (ILO), while appreciating "the cooperative attitude now shown by the Government," noted continuing reports of "very serious violations of basic provisions" of ILO Convention No. 29 on forced labor. The ILO recommended that the Government strengthen its system of labor inspection, particularly in rural areas. The ILO cited reports of a decrease in the number of labor inspections, and that successive changes in the Ministry of Labor had resulted in the discontinuation of programs, including the rural labor inspection program. d. Minimum Age for Employment of Children The minimum working age under the Constitution is 14, except for apprentices. Legal restrictions intended to protect working minors under age 18 are often not enforced, however, and the problem is widespread. Judges can authorize employment for children under 14 when they feel it appropriate. (The ILO noted in 1992 that the Constitutional provision for apprenticeships under age 14 is not in accordance with ILO Convention No. 5 on minimum age in industry.) By law, the permission of the parents or guardians is required for minors to work, and provision must be made for them to attend school through the primary grades. All minors are barred from night work and from work that constitutes a physical strain. Minors are also prohibited from employment in unhealthful, dangerous, or morally harmful conditions. Despite these legal restrictions, however, official figures state that nearly 3 million children, 10 to 14 years of age (or 4.6 percent of the work force), were employed. Of these, 46.4 percent worked 8 hours or more per day, while 96.3 percent of this group received not more than the minimum salary. The ILO has received reports alleging that millions of children are subjected to forced labor. In late 1992, the ILO began the "IPEC" project to move children out of the Brazilian workforce. A draft report prepared under this project in 1993 indicated that some 40 percent of the employees of independent shoe manufacturers in Franca (Sao Paulo state) were children under 14, employed in violation of the law. The approximately 1,000 independent contractors employ up to 20 percent of the 35,000 workers in the Franca shoe industry. Among this 20 percent, researchers found some 2,000 children under 14 years of age. Most are exposed at work to poisonous and addictive fumes from shoe glue. From January 1992 through January 1993, a further 397 children from 13 to 14 years of age were authorized by courts to work in Franca shoe factories. According to figures cited in the report, 45 percent of Franca's 1992 cottage industry shoe production was exported to the United States and elsewhere. A June 1993 agreement by manufacturers to eliminate these child workers did not prove effective. A 3-year study of sugar cane production in Pernambuco state found that 30 percent of the work force was made up of children and adolescents from 7 to 17 years of age, many cutting cane with machetes. About 10 percent of the sugar is exported. Specific reports of minors working illegally were also noted from Rio de Janeiro and Sao Paulo (street vendors), Rio de Janeiro (nightclubs), Bahia and Sao Paulo (sugar cane harvesting), and Rio Grande do Sul (tree resin extraction and logging). Although defenders of the current situation asserted that economic conditions often compel children to contribute income to their families, research undertaken for the ILO indicated that the subminimum wages of such children have little if any effect on their economic condition. Further, the employment largely or completely eliminates any chance for education and for subsequent economic improvement. Enforcement of child labor laws is severely limited because the Ministry of Labor, the responsible agency, deploys too few inspectors and is influenced by a widely held view that it is better for minors to work than to be involved in street crime. e. Acceptable Conditions of Work As of July 1993, the national minimum wage was adjusted every month. Based on exchange rates at the end of month, when most workers are paid, the minimum wage was $63.66 in November 1993, and $58.46 in December. The Interunion Department for Socioeconomic Studies and Statistics estimated that the minimum wage is less than one-fifth of the minimum necessary (based on a standard set by the 1988 Constitution) to support a family of four. The most recently available national survey (for 1990) showed that 35 percent of economically active individuals, including minors from 10 to 14 years of age, earned no more than the minimum wage. Many workers, particularly outside the regulated economy and in the northeast, reportedly earned less than the minimum wage. The 1988 Constitution limits the workweek to 44 hours and specifies a weekly rest period, "preferably on Sundays." This rest period is for 24 consecutive hours. The Constitution expanded pay and fringe benefits and established new protections for agricutural and domestic workers; however, not all of its provisions have been enforced. Many Brazilian workers suffer from unsafe working conditions. Occupational health and safety standards are set by the Fundacentro, which is under the Ministry of Labor. Enforcement of these standards is inconsistent because the Ministry deploys insufficient resources for adequate inspection and enforcement. There were also credible allegations of corruption within the enforcement system. If a worker has a problem in the workplace and has trouble getting relief directly from his employer, he or his union can file a claim with the regional labor court, although in practice this is frequently a cumbersome, protracted process. Brazilian law requires the establishment in work places of Internal Commissions for Accident Prevention. Employee members of these commissions are protected under law from being fired for commission activities. Such firings, however, do occur, and legal recourse usually requires years for resolution. Incomplete figures for workplace accidents and fatalities in 1992 (authorities estimate they have 92 percent of the data) showed 512,292 reported accidents, of which 3,390 were fatal and 16,706 caused permanent disabilities. These data undoubtedly understate the problem, because they only measure about one-half the workers in a work force of approximately 64.5 million. (###)
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