4.1.1 Formal Acceptance

Brazil is party to all core UN human rights treaties, except the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw). All ratifications were made after the military dictatorship (1964–1985), except cerd, ratified in 1968, and cedaw, ratified in 1984.

Brazil is the only mercosur country that has not ratified cmw. In 1996, Brazil acknowledged in its National Human Rights Plan the need for ratification, but this has not yet materialised.¹⁵ Brazilian scholarship on the topic points to the difficulty of ratification because the treaty has not been harmonised with the outdated 1980 Foreigner’s Law.¹⁶ Yet, this Law was replaced in 2017 by the Immigrant Law, thus improving the prospect for ratification, despite resistance by former President Bolsonaro with regard to the rights of migrants. After years of processing, ilo Convention 143 and cmw have not yet been ratified as their provisions do not comply with the 1980 Foreigner’s Law. It is expected that with the approval of the Migration Law this reality will be changed. The Migration Law was developed based on a more humanistic view of non-nationals, containing a principled framework that is consistent with the human rights treaties already ratified by Brazil and which expressly contemplates the guarantee of individual rights and freedoms to migrants, not only to regulars, but also to those in an irregular situation in the country, which, as has been seen, may contribute decisively to the ratification of the two analysed conventions.¹⁷

With the 1988 Constitution, human rights language was incorporated into the Brazilian legal system. Most of the treaties were ratified after the promulgation of the Constitution that re-established democracy in the country. Under Amendment 45, treaties adopted since 2005 potentially have constitutional status. Apart from the crpd, Brazil ratified the other human rights treaties before 2005 by ordinary procedure, which means that they have, in the language of Brazil’s Federal Supreme Court, a supra-legal status, that is, a status below the Constitution but above ordinary legislation.

Brazil entered reservations to articles 15(4), and articles 16(1)(a), (c), (g) and (h), and article 29 of cedaw. The reservations to articles 15 and 16, withdrawn in 1994, were made due to the incompatibility between Brazilian legislation, which was then ruled by the asymmetry between the rights of men and women. The reservation to article 29, which does not refer to substantive rights, is related to disputes between state parties regarding the interpretation of the treaty and remains in force.¹⁸

4.1.2 Level of Awareness and Impact

The level of support for and commitment to human rights treaties by Brazilian civil society is high. An example of this is cmw, which since 2005 has been a recurring object of campaigns for ratification. A document entitled Charter of Immigrants on World Day Immigrant: Universal Citizenship and Human Rights was sent to the then and current President Luiz Inácio (Lula), and launched in 16 Brazilian cities on 17 December 2005.¹⁹ Such engagement by civil society in 2017 culminated in the approval and enactment of the new immigration law that aims to protect immigrants in the Brazilian territory. Civil society engaged in international campaigns to account for crimes committed by the military regime, to advocate for the investigation into the disappearance of people, to defend the rights of persons with disabilities, and against practices of torture and police violence. There are countless civil associations and movements for the protection of human rights. Such associations also led to mobilisations for adherence to treaties at municipal and state levels, exemplified by the regional committees created to promote adherence to cedaw in municipalities and states.

Currently, civil society has articulated mobilisations against austerity policies and dismantling of socio-economic rights, such as the national campaigns against austerity measure 95 adopted in 2016, which froze social spending for 20 years (Teto de gastos).²⁰ Additionally, there are campaigns against declarations of former President Bolsonaro’s intention no longer to accept the recommendations by the HRCttee after it ruled in favour of President Lula’s petition, requesting Brazil to ‘take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections’.²¹ Those mobilisations have so far been unsuccessful.

The impacts on judicial decisions are meaningful. Various treaties have different impacts on the Brazilian judiciary. While some have greater adherence (as in the case of crpd), others are virtually forgotten (such as cat, in relation to which society often resorts to the Inter-American Commission on Human Rights for protection). However, in 2019, when the federal judiciary reversed the government’s decision to dismiss experts of the national mechanism against torture, the direct impact of cat and op-cat was at full display.²² Although the Brazilian judiciary often uses human rights language, it does not often directly cite human rights treaties.

Legislative power, in turn, in view of public pressure, is responsible for the creation of federal and state regulations that promote the implementation of UN human rights treaties in Brazil. Since 2005, Brazil has seen an increase in laws dealing with human rights. However, after 2016, some austerity measures have been preventing the realisation of socio-economic rights, due to the spending ceiling imposed by the Proposed Amendment to Constitution 95.

At the federal level, Brazil has adopted Law 7437 of 1985 which included as penal contraventions the practice of race, colour, sex and civil state discrimination; Law 7716 of 1989 which defined racial and discriminations crimes, which was amended by Law 12.288 of 2010²³ which established the Racial Equality Statute; Law 9140 of 1995²⁴ which recognised the death of the people forcibly disappeared for political reasons during the dictatorship; Law 9474 of 1997²⁵ which defined mechanisms for the implementation of the refugee law; Law 9455 of 1997²⁶ which defined torture crimes; Law 12.847 of 2013²⁷ which instituted the National System for Preventing and Combating Torture and created the National Committee for the Prevention and Combating of Torture and the National Mechanism for the Prevention and Combat of Torture in line with the UN treaties. Additionally, several federal decrees deal with human rights standards, such as Decree 6044 of 2007 which approves the National Plan for the Protection of Human Rights Defenders; Decree 7037 of 2009,²⁸ which approves the National Plan for Human Rights; Decree 6872 of 2009,²⁹ which approved the National Plan for Racial Equality and created a Committee for monitoring the implementation of the Plan. This Committee was replaced in 2019 by Decree 10087³⁰ under President Bolsonaro’s administration.

Another important point to note is that the Brazilian state has been creating special bodies to deal with human rights issues, such as national secretariats for the protection of women and the national secretariat for the protection of human rights of the Presidency of the Republic, and the creation of National Plans on Human Rights from 1996 to 2010. Three national human rights plans were carried out to incorporate UN resolutions for the protection of human rights in Brazil. The last plan assigned the Secretariat of State for Human Rights the responsibility for coordinating the implementation, monitoring and updating of the National Human Rights Programme.³¹

However, during Jair Bolsonaro’s government, some changes have been made in Brazilian government ministries. Law 13. 844/2019 transformed the Ministry of Human Rights into the Ministry of Women, Family and Human Rights (mmfdh), and attributed the administrative duties of the Amnesty Law to it.³² The mmfhd is structured in eight final units: the National Secretariat for Global Protection (snpg); the National Secretariat for the Rights of Persons with Disabilities (sndpd); the National Secretariat for Policies for the Promotion of Racial Equality (seppir); the National Secretariat for the Promotion and Defence of the Rights of the Elderly (sndpi); the Secretariat National Child and Adolescent Rights (sndca); the National Secretariat for Policies for Women (snpm); the National Youth Secretariat (snj); and the National Family Secretariat (snf). One of the main changes is the withdrawal of the lgbt community from the Charter of Human Rights guidelines and the extinction of the secretariat for the community. As for the indigenous population, the Ministry of Agriculture is now responsible for the demarcation of land and no longer by the National Foundation of India (funai). It is also important to highlight the extinction of the Ministry of Culture.

The budget of R $ 398 267 203 approved in the Annual Budget Law for 2019 – about R $ 21 million less than that committed in 2018 – is not sufficient for the protection of human rights in the territory, in view of the budgetary decrease.

As far as the level of awareness among civil society organisations is concerned, Brazil counts with strong non-governmental organisations (ngos) constantly monitoring what is happening in Geneva at the UN, including Conectas Human Rights, Justiça Global, Plaforma DhESCA Brasil, and Sexuality Policy Watch. Yet, Conectas Human Rights, in an interview for this research, highlighted some challenges in working with the UN treaty bodies, such as a lack of predictability in the calendar of state reporting, unclear procedures regarding the submission of shadow reports (with the UN Special Procedures the communication is more fluid considering urgent appeals, for instance), language barriers for most of Brazilian ngos, and the existence of the Inter-American system which is perceived as closer to ngos in Brazil. Yet, Brazilian ngos have been actively involved in the strengthening process of the UN treaty body mechanisms as well as voiced against budget cuts for those bodies. A handful of Brazilian journalists cover the UN treaty bodies constantly, in particular Jamil Chade, who lives in Geneva and reports to the main news portal in Brazil.³³

4.1.3 State Reporting

Brazil lags behind in almost all state reporting. The longest delay was about 12 years, in respect of op-crc-sc. In an email interview with the Ministry of Foreign Affairs, Brazilian diplomats highlighted that on 25 February 2019, on the occasion of the High-Level Segment of the 40th session of the hrc, the Minister of Women, Family and Human Rights ‘expressed her public commitment in submitting all Brazil’s reports pending in treaty bodies during her administration’. In fact, a series of reports were subsequently submitted. Researchers have asked the Ministry how the reports due to the UN treaty bodies are prepared. According to the Ministry of Foreign Affairs, ‘the preparation of reports submitted by the Brazilian state to treaty bodies of the international human rights system would be the responsibility of the Ministry of Women, Family and Human Rights’, while it is up to the Division of Human Rights (DDH) of the Ministry of Foreign Affairs ‘to accompany, coordinate and guide the preparation of Brazil’s reports on compliance with the human rights treaties to which it is a party, as well as its respective oral defence’, in accordance with the Ministry’s Internal Regulations of the Secretariat of State for Foreign Relations (rise).³⁴ As far as publication is concerned, Brazil publishes on the website of the Ministry of Human Rights and Citizenship the reports it has submitted to the UN treaty bodies in Portuguese.³⁵ The website of the Ministry often publishes drafts of human rights reports for consultation, in particular in relation to the Universal Periodic Review (upr) mechanism. Finally, some ngos have produced alternative reports for treaty bodies, such as the alternative report regarding social, economic and cultural rights prepared by a group of ngos in 2007.³⁶

4.1.4 Domestic Implementation Mechanisms

In 2014 Brazil developed an online platform called Observatory of International Recommendations on Human Rights,³⁷ aimed at compiling recommendations ‘issued by the UN and oas with a view to progressively integrating them into national rights action plans, policies and work programmes’, as reported by Brazilian diplomats in an interview for this research. Yet, this platform was discontinued by the Brazilian government and is no longer available. At the Inter-American level, there is a similar initiative within the Institute of Public Policies on Human Rights (ippdh), regarding the Recommendation Monitoring System (simore).³⁸ simore is still functioning to monitor recommendations from the Inter-American system. In contrast with the lack of uniform procedure for monitoring of UN treaty bodies recommendations, Brazil has been more transparent regarding the upr procedure.

4.1.5 Treaty Body Membership

A national process for nomination of treaty body members is currently an issue in Brazil. In 2014 a group of ngos called the Brazilian Committee on Human Rights and Foreign Policy presented a document outlining criteria and procedures for the nomination of treaty body members that is transparent and open to different stakeholders. Although Brazil has not formally endorsed the document, it is a clear impact of the UN treaty bodies in fostering advocacy around issues of their members’ nominations.

The criteria outlined in the document include (i) qualification and knowledge of international instruments, standards and principles of human rights or humanitarian law, and fluency in at least one of the official languages of the UN or oas; (ii) knowledge and experience in the mandate field; (iii) independence and impartiality (anyone occupying a government position, in instances closely linked to state functions or in organisations and private companies that may produce potential conflicts of interest in relation to the inherent responsibilities to the mandate, should be excluded from the selection process); (iv) personal integrity and moral integrity (the nominee cannot have contributed to authoritarian or governments, and have expressed public positions contrary to human rights or have had any involvement with public or private organisations known to have violated human rights); (v) availability and flexibility; (vi) gender, race, ethnicity and other expressions of plurality (it is essential that clear parameters for the promotion of equality and equity between genders and with respect to race and ethnicity and other variables are established as criteria for selecting and nominating candidates for vacancies in human rights systems). The process of selection and nomination must also consider other dimensions of socio-cultural plurality, especially in the case of historically discriminated groups. Efforts must also be made to ensure regional diversity.

4.1.6 Overview of Impact

Human rights treaties were incorporated as civil society claims became more prominent. The first decade of 2000 saw the highest volume of public policies in accordance with international recommendations. It was during this period that the National Human Rights Plans were made.

The Brazilian judiciary has to a large extent applied human rights treaties in its decisions. Most treaties are used as a source of interpretation and resource, especially when the parties to the lawsuit invoke the text for the protection of the law in dispute.

The most extensive impacts of human rights treaties were found in decentralised public policies that do not focus on a specific organ or power and are supported by social movements and civil society. An example are the Special Secretariats, such as the Special Secretariat for Women, which was responsible for the implementation of public policies that meet the commitments of cedaw. Also, the role of civil society in the impact of the treaties is remarkable: civil society organizations and ngos mobilize to demand the implementation and enforcement of the treaties. In some cases – as in cedaw and the crpd – this role is even more outstanding. While there is a large social movement (in particular, anti-carceral movements) supporting it, the implementation of the Convention Against Torture (cat) has been less pronounced, especially in companies.

Brazil had an individual communication decided by the cedaw Committee regarding the Maria de Lourdes Pimentel case, in which Brazil was accused of violating the right to health and maternity protection. Brazil, through the Special Secretariat for Women, publicly acknowledged its accountability and paid compensation to the victim, showing the relevance of the decentralised action indicated in the previous paragraphs.

The Subcommittee on Prevention of Torture (spt) conducted visits to Brazil in 2009 and 2015. The spt’s reports pointed out the precarious position of Brazilian prisoners. In its report published in 2016, based on its 2015 visit, the spt issued warnings that could have prevented prison riots. Brazil has recurrently omitted to pay attention to the needs of public security and to reduce the number of prisoners in the country, being the country with the third major highest number in arrests in the world, with 64 per cent of 727 000 prisoners black. The prison system is an urgent problem that is not yet the object of institutional attention, even though there is a great deal of work by ngos to do so.

The Universal Declaration of Human Rights, the American Convention on Human Rights and UN human rights treaties had a direct impact on the drafting of the fc. Article 4 of the Brazilian fc states that Brazil governs its international relations with reference to human rights. Article 5 refers to gender equality and the inviolability of the right to life, liberty, equality to security and property. There is also an express mention of the prohibition of torture and cruel punishment; the prohibition of arbitrary imprisonment and the presumption of innocence.

Another important point is that the fc in article 6 declares that education, health, food, work, housing, transportation, leisure, security, social security, maternity and child protection, assistance to the helpless are social rights and also has a chapter on Social Security. The Constitution also expressly provides for workers’ rights, including vacation and rest (in article 7). Other impacts can be mentioned, as Piovesan (2012) pointed out, namely, (a) the right of every person to an adequate standard of living; (b) the prohibition of any propaganda in favour of war and prohibition of any apology for national, racial or religious hatred; (c) the right of ethnic, religious or linguistic minorities to have their own cultural lives, to profess and practise their own religion and to use their own language; (d) prohibition on the re-establishment of the death penalty in states that have abolished it, in accordance with article 4(3) of the American Convention; (e) the possibility for states to adopt measures in the social, economic and cultural spheres that ensure the protection of certain racial groups; (f) the possibility for states to adopt temporary and special measures aimed at accelerating de facto equality between men and women; (g) prohibition on the use of means to hinder communication and the circulation of ideas and opinions; (h) the right to a double degree of jurisdiction as a minimum judicial guarantee; (i) the right of the accused to be heard; (j) the right of every detained person to be tried within a reasonable time or to be released, without prejudice to the continuation of the process; and (k) the prohibition on extradition or expulsion of a person to another state when there are well-founded reasons that can be subjected to torture or other cruel, inhuman or degrading treatment. ‘It should be noted that this list is not exhaustive, but aimed to exemplify rights that are enshrined in the international agreements ratified by Brazil and incorporated into the Brazilian domestic legal order.’³⁹

In case of conflict between international law and domestic law, the stf has held that the human dignity principle had primacy. Since 2004, human rights norms with constitutional status, as provided for in article 5 of fc and mentioned above, have a prevalence of human rights over domestic law as a constitutional norm. If the human rights treaty did not meet that threshold, it still has prevalence over domestic law but not from constitution norms.

5.1.1 Incorporation and Reliance by Legislature and Executive

Brazil ratified cerd on 27 March 1968 and it was incorporated into domestic law by Decree 65,810 of 8 December 1969, which in its headnote explicitly refers to the promulgation of cerd. In 2002 Brazil accepted cerd’s individual complaints procedure under article 14 of cerd.

There has been significant growth in national legal rules involving the fight against racial discrimination. The first law that sought to combat racial discrimination was Law 1.390 of 1951 known as the Afonso Arinos Act, which typified as racism discrimination by public or private entities against people on grounds of colour or race. However, such behaviour was classified only as a ‘minor offensive potential offence’. Subsequently, in 1989, Law 7716 was promulgated, characterising as a criminal offence the kind of conduct that blocks access to services, positions and jobs on grounds of race or colour prejudice. In 1997 Law 7716/89 was partially modified by Law 9459/97, which includes new categories of criminal offences. The most expressive rule against any kind of discrimination and, consequently, against racial discrimination, in Brazil is the 1988 fc. In article 5, items xli and xlii, the fc establishes that ‘the law shall punish any discriminatory discrimination against the rights and fundamental freedoms’, and that ‘the practice of racism constitutes an unreliable and imprescriptible crime, subject to the penalty of imprisonment under the law’. Thus, racism had its status as a mere ‘criminal misdemeanour’ turned into a serious crime.

The Brazilian legislature has directly relied on cerd in numerous legislative proposals. A search of the database of Brazil’s House of Representatives shows at least 50 explicit mentions of cerd in legislative proposals.⁴⁰ The vast majority of these mentions are from the 2000s onwards despite the fact that Brazil ratified cerd during the military dictatorship in 1969, showing that the impact of UN human rights treaties has occurred primarily after the democratisation from the mid-1980s in Brazil. In order to illustrate this impact, it is possible to cite two concrete examples: (i) in 2003 cerd was cited in a parliamentary inquiry proposing to the executive to establish race-based affirmative action programmes for public service;⁴¹ (ii) in 2004, citing Brazil’s obligations under cerd, the executive branch presented a legislative Bill for racial quotas in federal universities.⁴²

Brazil has several public policies seeking to tackle racial discrimination, such as (i) the enactment of Law 12.711/2012, known as the Quota Law, in an attempt to repair history and to respond to the provisions of article 2(2) of cerd, which established affirmative action programmes at federal universities based on race and ethnicity;⁴³ (ii) the enactment of the Statute of Racial Equality (Law 12.288/2010) which details the rights of black people in Brazil and explicitly mentions cerd in its article 38, as follows: ‘The implementation of policies aimed at the inclusion of the black population in the labour market will be the responsibility of the public power, observing … the commitments assumed by Brazil when ratifying the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.’ At the executive level, Brazil counted with a Special Secretariat for Policies Promoting Racial Equality between 2003 and 2015 at the President’s Office.⁴⁴

5.1.2 Reliance by Judiciary

The most relevant impact of cerd in the Brazilian legal system has been in the paradigmatic case from 2012,⁴⁵ in which Brazil’s Federal Supreme Court (stf) confirmed that affirmative actions involving racial quotas in universities are constitutional. The reference to cerd by the STF was replayed later in another case,⁴⁶ which confirmed the validity of the public university quota system mentioned above. The concept of discrimination outlined in cerd was key to the findings of the Court in favour of affirmative action programmes, and it was cited extensively.

cerd has been very present in Brazilian jurisprudence, especially in the judgments of the Superior Court of Justice (STJ), another higher court in Brazil responsible for the interpretation of federal law (including international treaties). Looking at the jurisprudence of the stj, the Convention was mentioned in 115 individual decisions,⁴⁷ and in eight judgments as a legislative reference.⁴⁸ In these, treaties are always mentioned along with the existing Brazilian legislation on the subject, to emphasise how the domestic norms are in conformity with the international treaties. The substantive issues in respect of which the treaties are mentioned are diverse, ranging from cases of racial injury committed on the internet to cases that question whether the federal court is competent to prosecute racist crimes provided for under cerd.⁴⁹

5.1.3 Impact on and through Independent State Institutions

Regarding the impact of cerd on independent state institutions, the promotion of accessibility policies can be mentioned, such as that carried out by the Secretariat of Higher Education, in 2005, which deals with opening up possibilities for quota holders in the Afro-Attitude Programme.⁵⁰ The programme aims to offer opportunities for black students to participate in research, community initiatives and monitoring projects developed by professors and students from participating universities. In 2014 the Public Defenders’ Office of the State of São Paulo created quotas for black people in the public selection for Defender of the State (public lawyer).⁵¹ In this context, in 2015, quotas for the magistracy vacancies had been created, based on a dossier on the racial inequality in the judiciary power made by the National Council of Justice (cnj).⁵²

5.1.4 Impact on and through Non-state Actors

The impact through non-state actors is focused on projects to fight against racial inequalities. The Black Women Health Project launched a manual about the Convention,⁵³ which underscores the importance of cerd in the action against racism, as well as the rights contained in the text and the duties of the state parties. Specifically, the manual, which was drafted in partnership between Conectas Human Rights and the Geledes Black Women Institute, looks closely at the issue of black women’s health rights in light of the Convention. ngos also conducted campaigns to publicise the Convention.⁵⁴ These campaigns were essential for the promotion of public policies by state institutions.⁵⁵ One of the greatest responses to the adherence by Brazil to cerd has taken the form of dissemination and the promotion of meetings allowing for debates on the themes.

5.1.5 Impact of State Reporting

Brazil has also reacted, directly and indirectly, to cos of the cerd Cttee as shown by a handful of concrete examples. In 2004 the cerd Cttee considered Brazil’s 14th to 17th report. It welcomed the adoption, in 2002, of the National Affirmative Action Programme as an important mechanism to implement the Durban Declaration and Programme of Action, as well as the second National Human Rights Programme and New Civil Code.⁵⁶ It also identified as a positive aspect Brazil’s ratification of ilo Convention 169 and reaffirmed its concern about the persistence of deep structural inequalities affecting black and mestizo communities, as well as indigenous peoples.⁵⁷ Besides that, the Committee demonstrated uneasiness about the increase in the number of racist organisations, such as neo-Nazi groups, and the spread of racist propaganda on the internet. In its cos in 2004 the Committee also recommended that Brazil ‘clarify further the content and application of the relevant provisions of domestic law that address the existence and activity of racist organisations, as well as those that prohibit racist propaganda on the Internet’.⁵⁸ Citing cerd directly, a parliamentary hearing was held in 2018 to tackle the issue,⁵⁹ and ongoing discussions are underway in Brazil’s National Congress regarding hate speech and racism. Also, in 2004 the cerd Cttee requested Brazil to ‘provide statistical information on prosecutions launched, and penalties imposed, in cases of offences which relate to racist crimes, and where the relevant provisions of the existing domestic legislation have been applied’. Brazil provided at least part of the required data to the Committee (as stated in its latest report received by the Committee on 14 July 2020). The Brazilian Congress has amended anti-racism criminal legislation citing cerd as a reference. The last change in 2009 has empowered the prosecutor’s office to initiate criminal proceedings on the crime of racial slur, provided the victim allows it.⁶⁰

5.1.6 Impact of Individual Communications

No cases have been submitted to the cerd Cttee against Brazil.

5.1.7 Impact of cerd Urgent Procedures

An important impact of the Committee is in the situation of the indigenous peoples of Raposa Serra do Sul in the state of Roraima, which was the object of all but one early warning communications concerning Brazil and the cerd Cttee between 2006 and 2011. During this time, civil society activists managed to obtain responses from the Brazilian government, through its Permanent Mission in Geneva, regarding the demarcation of this specific indigenous land. In parallel, Brazil’s Federal Supreme Court finally decided a case in 2009 formally guaranteeing the right to land to indigenous peoples, mentioning several times in particular the UN Declaration on the Rights of Indigenous Peoples. Although the final court decision did not expressly mention the Committee, the repeated access to the early warning mechanism while the case was pending has shown coordinated tactics by civil society organisations and indigenous defenders.

This case involved the demarcation of a territory that lasted 30 years. It started in 1993, when the National Indian Foundation (funai) proposed to the Ministry of Justice the recognition of the extension of 1,67 million hectares of the Raposa Serra do Sol Indigenous Territory. The violence was present throughout the process of demarcation. The year 2006 was destined for the departure of non-indigenous people from the territory, as part of the integration process. April 2006 was the deadline for non-Indians leaving from the Raposa Serra do Sol Reserve. On 25 April 2006 the Federal Police began to enter rice farmers’ farms located in the so-called ‘rice belt’.

Thus, in the same year, 2006, the Indigenous People Council, Indigenous Peoples Law and Policy Programme of the University of Arizona, the Rainforest Foundation and the Forest People Programme asking urgent actions from the Committee regarding the violence against peoples of Raposa do Sol (Ingaricó, Macuxi, Patamona, Taurenge and Wapichana). The Committee requested more information from Brazil about the allegations.⁶¹ In June, Judge Helder Girão Barreto ordered the suspension of any actions promoted by Funai and others aimed at removing rice producers from the areas they occupy in Raposa. It is in this conflicting and institutionally nebulous scenario that the Committee issued an ‘early warning’ to Brazil asking for clarification on the racial attacks and violence experienced by the communities in this process.

In 2009 the Federal Supreme Court finally decreed the demarcation of the land.⁶² In the meantime, cerd issued six early warnings.⁶³ An early warning was issued in 2010,⁶⁴ alerting to the concern with the land of Raposa Serra do Sol, even after the demarcation, requesting up-to-date information and urging action to stop and prevent violence against indigenous people in the territory. Thus, only in 2011⁶⁵ did the Committee issue its last early warming on the Raposa Serra do Sol case, warning Brazil of its withdrawal from the urgent procedures in the Committee.

The only early warning communication that does not deal with Raposa do Sol is the latest one, from May 2019, which is related to the ‘building of highways and railroads in the State of Mato Grosso, in Brazil, and its impact on Xavante and other indigenous peoples’ rights’.⁶⁶ In particular, the Committee requested the suspension of the building of highway br-080. Although the early warning communication is mentioned in Parliament through a request by opposition politicians to the government,⁶⁷ the building of the highway is underway.⁶⁸

5.1.8 Brief Conclusion

The influence of cerd in Brazil can be traced along the axes of the country’s political history. Ratified in 1969, during the military dictatorship, its effect on Brazilian legislation became noticeable only after the promulgation of the 1988 Constitution and the return to democracy. Nevertheless, it is important to point out that the legislation on the subject is punitive and also focused on public policies. Public policies regarding the guarantee of rights have become more common since the 2000s, in particular for affirmative action. The role of civil society and organisations in the dissemination of cerd remains of paramount importance in the Brazilian context. Adherence in civil society was and is very important, acting in protection against racial violence in cases such as that of Raposa Serra do Sol land.

5.2.1 Incorporation and Reliance by Legislature and Executive

The Brazilian Congress approved ccpr by Legislative Decree 226 of 12 December 1991, in which it also approved the cescr. On 6 July 1992, by Decree 592, it published an annex to the decree promulgating ccpr in the country, establishing its execution and fulfillment entirely as contained therein. In 2009, through Decree 311,⁶⁹ Brazil approved op1-ccpr and op2-ccpr, while expressing a reservation to article 2 of the latter. Even though it was approved it has not yet been promulgated.⁷⁰ In 1996 the National Human Rights Programme was launched by Decree 1904. Decree 4229/2012 brought into being National Human Rights Programme ii. These initiatives enabled Brazilian regional governments to develop human rights plans. Many other public policies were created in Brazil, indirectly mentioning ccpr.

The Brazilian legislature has directly relied extensively on ccpr in legislative proposals. A search conduced in September of 2023 in the database of Brazil’s House of Representatives showed at least 169 explicit references⁷¹ to ccpr in legislative proposals, the vast majority of them from the 2000s onwards. Brazil ratified ccpr in 1992, shortly after the promulgation of the fc in 1988, illustrating that the impact of UN human rights treaties has occurred primarily after the democratisation from the mid-1980s onwards. In order to illustrate this impact, two examples are cited: (i) In 2015, ccpr was cited in a legislative Bill to guarantee fundamental rights in the context of sexual health and reproductive rights;⁷² and (ii) in 2015, citing directly Brazil’s obligations under ccpr, the legislative branch presented a Bill to establish the duty to a custody hearing within 24 hours after arrest,⁷³ which was in line with recommendations by the UN Special Rapporteur against Torture.⁷⁴

There were often setbacks or negative impacts, at least indirectly, from the UN Human Rights Committee (HRCttee) cos. In 2015 the HRCttee⁷⁵ concluded that the ‘state party should ensure that the military police are subject to the institutions and procedures of judicial and civilian accountability. The ordinary courts should have criminal jurisdiction over all serious human rights violations committed by the military police, including excessive use of force and manslaughter, as well as intentional murder.’ Previously, in 1996, Law 9299/96 transferred judicial authority over intentional crimes against human life committed by military police officers from military justice to common justice, thereby eliminating the privileged forum that previously shielded military police officers responsible for civilian deaths. In 1997, Law 9455, which defines the crimes of torture, in accordance with ccpr in article 7, was adopted. Yet, in 2017 Brazil enacted Law 13.491/2017 stipulating as follows: ‘The crimes, when committed with intention against life and by military personnel in the Armed Forces against civilians, will be the responsibility of the Military Justice.’⁷⁶ The problem is that in Brazil part of the police belongs to the armed forces, thus there are cases of police misconduct tried by military courts.

5.2.2 Reliance by Judiciary

The stf on 9 September 2015⁷⁷ granted a precautionary measure to determine that judges and courts allow, within 90 days, the holding of custody hearings throughout the country, allowing prisoners to be presented to the judicial authority within 24 hours: ‘Judges and courts, subject to articles 9(3) of ccpr and 7(5) of the American Convention on Human Rights, are required to hold custody hearings within ninety days, enabling the prisoner to appear before the judicial authority within maximum of 24 hours from the time of arrest.’ When it decided that the accused has the right to attend, to assist and to witness, under penalty of absolute nullity, the procedural acts, notably those that take place during the investigation phase of the criminal procedure, in 2012, the stf mentioned article 14(3)(d) of ccpr.⁷⁸

In 2014 the stf awarded compensations for moral damage as a result of torture during the military regime and highlighted that Brazil is a state party to ccpr, ‘incorporated into the legal system by Legislative Decree 226/1991, promulgated by Decree 592/1992, which guarantees that no one will be subjected to torture or cruel, inhuman or degrading treatment or punishment, and provides for judicial protection in cases of human rights violations’. A decision then was issued in accordance with the Covenant.⁷⁹ As a last example, the Federal Supreme Court decided, in 2005, that an accused has the right to be present in criminal hearings concerning his case, based on article 14(3)(d) of ccpr.⁸⁰

5.2.3 Impact on and through Independent State Institutions

A key impact of ccpr in Brazil is the establishment of a Police Ombudsman’s Office in several states in Brazil to act independently and receive complaints involving crimes and misconduct of police officers. In its cos in 2005, the HRCttee recognised the efforts of Brazil in this regard.⁸¹ For instance, the state of Rio de Janeiro, the Police Ombudsman’s Office was established in 1999,⁸² and in Bahia state, the Civil Police Ombudsman’s Office was created in 2018.⁸³

5.2.4 Impact on and through Non-state Actors

As for the adherence by organisations and non-state actors, there is mainly the complaint of non-compliance with the rules stipulated in the Convention: for example, Human Rights Watch in the article ‘Brazil: Mothers arrested despite legal ban’ about the imprisonment of mothers.⁸⁴ In the same way, specialists from the UN and the Inter-American Commission on Human Rights demanded that the São Paulo government review its newly-created legislation that hardens the rules for protests in the state.⁸⁵ Other mentions can be found in legal articles that aim, for the most part, to highlight the context of ccpr and its implications for lawyers’ day-to-day functioning. An interesting analysis is the one presented by Criminal Justice Network,⁸⁶ which launched a note and criticised the processing of a Bill that defines terrorism. There are also guides to practical actions towards the Convention: Guide to Training in Special Testimony of Children and Adolescents;⁸⁷ Guide to Evaluation Impact on Human Rights what Companies should do to Respect the Rights of Children and Adolescents. It is also possible to observe an adherence of the Convention in academic studies.⁸⁸ A search at capes Periodic (Coordination for the Improvement of Higher Education Personnel) in September 2023 by subject search ‘Pacto Internacional de Direitos Civis e Políticos’ (ccpr) found 326 papers. ccpr also had relevance in the complaint⁸⁹ against the prohibition of the candidacy to the presidency of former President Lula, with, for example, reference to article 25 of the Convention. Although the HRCttee has requested Brazil to ‘take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections’,⁹⁰ this did not materialise until after the election of former President Jair Bolsonaro.

5.2.5 Impact of State Reporting

In 2005 the HRCttee examined the second report submitted by Brazil.⁹¹ The Committee noted as positive aspects the campaign for civil registration of births, needed to facilitate and ensure full access to social services. It recommended that Brazil take stringent measures to eradicate extra-judicial killing, torture, and other forms of ill-treatment and abuse committed by law enforcement officials and conduct impartial investigation of human rights violations.

In its cos in 2005 the HRCttee requested the state party to ‘ensure that the constitutional safeguard of federalisation of human rights crimes becomes an efficient and practical mechanism in order to ensure prompt, thorough, independent and impartial investigations and prosecution of serious human rights violations’.⁹² The legal instrument of federalisation of severe cases of human rights violations was established in 2004 through Constitutional Amendment 45. Three cases were federalised so far by decisions of the Superior Court of Justice. The first of these, granted in 2010, refers to the killing of the human rights defender Manoel Mattos in 2009, who fought against death squads in the North-East.⁹³

Brazil has participated in the Follow-Up Procedure of the UN Human Rights Committee. On 18 April 2008 Brazil presented a follow-up report on the 2005 cos of the HRCttee.⁹⁴ Brazil listed developments on demarcation of indigenous lands, on police violence, on the rights of people deprived of liberty and, finally, on the accountability for the crimes committed under the military dictatorship. One example of impact cited by Brazil in the follow-up report mentions increasing the number of vacancies in the prison system and improving state penal establishment facilities as a way to meet the Concluding Observation related to the improvement of prison conditions. Yet, this might be highly problematic to be counted as a human rights development considering the country’s mass incarceration levels. The Committee requested the state party to provide information on the other recommendations made and on the Covenant as a whole in its next report, which was due by 31 October 2009. However, Brazil only submitted its report on 3 June 2020.

5.2.6 Impact of Individual Communications

No complaints under op1-ccpr have been submitted against Brazil.

5.2.7 Brief Conclusion

ccpr is perhaps one of the treaties with the most diffuse implications in the country. It has an important role in promoting various civil rights and on various topics, in particular taking into consideration the massive challenges in Brazil regarding issues such as the demarcation of indigenous lands, access to justice, mass incarceration and police violence. The impact of ccpr in the country is considerable, in particular in terms of legislative and judicial impact. Also, the executive engages with the HRCttee, despite the delays in state reporting.

5.3.1 Incorporation and Reliance by Legislature and Executive

Brazil ratified cescr on 24 January 1992 by means of an accession letter. Its text was approved by the National Congress through Legislative Decree 226 of 12 December 1991. The Covenant entered into force on 24 April 1992. On 6 July 1992 the President, through Decree 591,⁹⁵ published an annex to the Decree promulgating the Covenant in the country. Regarding op-cescr, which came into effect on 5 May 2013, internal procedures are ongoing, the reason why it has neither been signed nor ratified.

In assessing the legislative impact of cescr in Brazil, the Brazilian legislature has directly relied on cescr in various legislative proposals. A search conduced in September of 2023 on the database of Brazil’s House of Representatives reveals at least 110 instances in which cescr is explicitly mentioned in legislative proposals,⁹⁶ the vast majority of these from the 2010s onwards. The following two concrete examples are provided: (i) in 2019 cescr was cited in a constitutional amendment proposal suggesting that access to drinking water should be included as a social right;⁹⁷ (ii) in 2014, citing directly Brazil’s obligations under cescr, the executive branch presented a legislative Bill for free transport to students.⁹⁸

cescr establishes, in articles 6 and 7, the right for just and favourable work. In this sense, regarding the issue of employment, it is important to point out that since 1943 Brazil has had specific legislation in place to protect workers, the clt (Consolidation of Labour Laws). However, in recent years the Brazilian Congress House increased flexibility of labour laws through pension reform and labour law reform.⁹⁹ Shortly after the promulgation of cescr in Brazil, Law 8.900/94 was adopted to ensure the guarantee for unemployment benefits. However, this Law was revoked in 2015 by Law 13.134. The rights of domestic employees were regulated by Law 5.859/1972. In 2001, after cescr, Law 10.208 provided access to the Employee’s Severance Guarantee (fgts) and unemployment insurance. It took until 2015 with Complementary Law 150,¹⁰⁰ known as Domestic Employees Law, to ensure new rights for workers in this category, such as mandatory fgts, night allowance, unemployment insurance and family allowance.

The first decade of 2000 was a decade in which the idea was to foster demand for consumption for the large portions of the population, which until then were excluded from the consumption of goods and services due to insufficient income. A series of legislative and executive initiatives were enacted over the last 20 years in Brazil to foster economic and social rights, such as the Fome Zero (Zero Hunger) Programme, created in 2003, to fight against famine; the Luz para Todos (Light for Everyone) Programme created in November 2003, to bring electricity to 10 million Brazilians living in rural areas by 2008; and Law 10,836, of 2004, which created the famous Bolsa Família (Family Allowance) programme, a cash transfer programme for poor families.¹⁰¹

For education (article 13 of the Convention), it is possible to mention the Brasil Alfabetizado (Literate Brazil) Programme, created in 2003, aimed at the literacy of young people, adults and older persons. The Universidade Para Todos (University for Everyone Programme), created in 2004, aimed at providing low-income youth with access to higher education, through the granting of full or partial scholarships. Finally, Decree 6,096, 2007 institutes the programme to Support Federal University Restructuring and Expansion Plans for Expansion of Federal Universities in the country and the Student Financing Fund Programme, which is a programme of the Ministry of Education aimed at financing undergraduate education for students enrolled in non-free higher education courses at the form of Law 10.260/2001.

Soon after that, from 2015, a series of discussions on the social crisis began, which led to the impeachment of former President Dilma Rousseff. In this scenario labour rights were affected, with an austerity measure for spending ceiling in 2016, by Constitutional Amendment 95.¹⁰² This ceiling limits spending by the federal government on social issues for 20 years, impacting on socio-economic rights. In 2018 a group of UN experts warned that Brazil’s austerity policies are harming social rights as child mortality increased.¹⁰³ Such policies remain in place, although, with the new government, they are linked to the country’s revenue growth - that is, it have been made more flexible through Complementary Law 200/2023.¹⁰⁴

5.3.2 Reliance by Judiciary

The Brazilian Superior Court of Justice referenced cescr in four judgments.¹⁰⁵ To cite an example of positive impact: in a class action,¹⁰⁶ the Public Defender mentioned article 13 of cescr to guarantee the right of a student to university transfer. At the Public Civil Action 1.573.573¹⁰⁷ the plaintiff aimed to oblige the educational institution to allow candidates who did not fulfill the requirements of the quota system to still be part of the selection for general vacancies. The Court maintained the sentence that admitted the claim in order to recognise the right to education by expressly mentioning article 13 of the Covenant.

The stf directly mentioned cescr in Injunction 20–4/1994,¹⁰⁸ guaranteeing the right of public servants to strike. Here, the stf referred to articles 8(c) and (d) of cescr – concerning the right of trade unions and the right to strike – in order to rule that, although striking is a right, exemptions can apply when it comes to public servants such as limitations ‘prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others’ (cescr, article 8(c), cited in the case).

5.3.3 Impact on and through Independent State Institutions

The creation of the Special Secretariat for Policies for the Promotion of Racial Equality, in March 2003, was decisive to speed up the regularisation of quilombola lands, as the issue received specific appropriations in the 2004–2007 Multiannual Plan and became the subject of wide debate with civil society. Also, the three Special Secretariats under the President’s Office, endowed with ministerial status, were created in 2003: the Special Secretariat for Human Rights (sedh); the Special Secretariat of Policies for Women (spm); and the Special Secretariat for Policies for the Promotion of Racial Equality (seppir). The institutionalisation of such official bodies came to the attention of the cescr Cttee several times, in particular in the state reporting process, during which Brazil argued that the institutionalisation of such bodies, which no longer enjoy ministerial status, counted as implementation of the right to equality.¹⁰⁹ These secretariats have the responsibility to coordinate executive and legislative branches in federal, state and municipal levels in matters of gender, race and human rights.

5.3.4 Impact on and through Non-state Actors

The major impact of cescr on and through non-state actors was its use as a pressure mechanism on Brazilian politics. In 2017 civil society organisations pressured the Minister of Human Rights, Luislinda Valois, in order for Brazil to sign and ratify op-cescr.¹¹⁰ Brazil has so far not ratified the individual complaints procedures of op-cescr.

In 2016 United Nations Special Rapporteur on extreme poverty and human rights stated that, if approved, Constitutional Amendment Bill 55, an austerity law that freezes social and economic resources, ‘clearly violates Brazil’s obligations under cescr, which it ratified in 1992, not to take “deliberately retrogressive measures” unless there are no alternative options and full consideration has been given to ensure that the measures are necessary and proportionate’.¹¹¹ Unfortunately, while the impact of cescr as a pressure mechanism can be observed in the legislative discussion of the Constitutional Amendment Bill 55, given the UN Special Rapporteur’s statement, Brazil’s National Congress nevertheless adopted the measure.

As mentioned above, it was only in August of 2023 that the austerity mesure was made more flexible, although is still in place.

5.3.5 Impact of State Reporting

The reporting process to the cescr Cttee is important for civil society organisations in Brazil. In 2000 civil society organisations prepared a comprehensive report on the compliance by Brazil of its obligations under cescr.¹¹³ The document received inputs from over 2 000 entities all over Brazil and was coordinated by the National Human Rights Movement, and the Human Rights Commission of the House of Representatives, among others. The main reason for the shadow report by civil society organisations was the fact that in 2000 Brazil had not submitted an official report to the cescr Cttee, although it was due by 1994. The government submitted its report in August 2001. The last report submitted by Brazil to the cescr Cttee was due in 2014, but was only submitted in June 2020.¹¹⁴

In its cos in respect of Brazil in 2009, the cescr Cttee focused on challenges related to inequalities in the territory, such as imbalances in the distribution of resources and income and access to basic services in Brazil.¹¹⁵ Specifically, in its cos in 2009, the Committee requested Brazil to ‘take all necessary measures to combat the culture of violence and impunity prevalent in the state party and to ensure the protection of human rights defenders against any violence, threats, retaliation, pressure or any arbitrary action as a consequence of their activities’.¹¹⁶ As an example of impact, in 2016 former President Dilma Rousseff enacted Decree 8.724 establishing a national programme for the protection of human rights defenders,¹¹⁷ a programme that continues until today despite concerns about its efficacy and independence.

Also, in its cos from 2009, the cescr Cttee recommended that Brazil take effective measures to end all forms of exploitative labour.¹¹⁸ Two important developments happened after these cos: (i) In 2014, Constitutional Amendment 81 was adopted establishing the expropriation of properties with a situation of slave labour, including in the Constitution the following provision: ‘Art 243. Rural and urban properties in any region of the country where illegal crops of psychotropic plants are located or the exploitation of slave labour in accordance with the law will be expropriated and destined to agrarian reform and popular housing programs, without any compensation to the owner and without prejudice to other sanctions provided for by law’;¹¹⁹ (ii) Brazil created a National Pact for the Eradication of Slavery in 2017, coordinating judiciary, state level governments and the federal government.¹²⁰ However, Brazil still faces several challenges regarding slave labour.

The cescr Cttee urged Brazil to take all effective measures to prohibit discrimination on the basis of race, colour, ethnic origin or sex in all fields of economic, social and cultural life. In its second set of cos,¹²¹ the Committee recommended that Brazil amend article 215 of the Penal Code, dealing with the concept of ‘honest woman’, previously applied in certain cases of sexual violence against women. The Committee stated, in line with what civil society movements were already saying, that the concept was discriminatory and asked Brazil to create coordinated public employment policies for disadvantaged groups, including indigenous peoples, Afro-Brazilians and women. All those suggestions were implemented. In addition, the cescr Cttee requested Brazil to adopt the necessary legislative or other measures to enable the Council on the Defence of the Rights of the Human Person to fully conform to the Paris Principles.¹²² The cescr Cttee recommended that Brazil intensifies its efforts to reduce the persisting inequalities and social injustice between different regions, communities and individuals, and its efforts to advance the rights of children (combat children labour, and ensure that street children have access to education, shelter and health care).

5.3.6 Impact of Individual Communications

Brazil has not accepted op-cescr. Civil society organisations, including Conectas, Articulation for Monitoring Human Rights in Brazil, National Human Rights Movement (mndh), Brazilian Human Rights and Foreign Policy Committee (cbdhpe), Institute for Development and Human Rights (iddh) and fian Brasil, on 18 July 2017 sent a letter sent to the Minister of Human Rights, Luislinda Valois, calling on Brazil to sign and ratify op-cescr.¹²³

5.3.7 Brief Conclusion

The impact of cescr in Brazil has been substantial. This impact has been circumscribed in legal and institutional reforms. Brazil, by cos Committee, promoted some politics to extinguish inequalities in territory on the last years, namely, the Brazil Free of Homophobia Programme; the National Qualification Plan to coordinate public policies on employment for disadvantaged groups, including indigenous peoples, Afro-Brazilians and women; the National School Food Programme; compulsory licensing of hiv/aids anti-retroviral drugs in order to make these affordable and enable the extension of treatment to all patients; and the National Housing of Social Interest System (snhis).

5.4.1 Incorporation and Reliance by Legislature and Executive

Brazil ratified cedaw on 1 February 1984, with reservations to article 15(4), articles 16(1)(a), (c), (g), and (h), and article 29. It was incorporated into domestic law by Decree 89,460 of 20 March 1984, which explicitly refers to the promulgation of cedaw. This Decree was subsequently repealed and replaced by Decree 4,377 of 13 September 2002.

The fc, which was promulgated in 1988, some four year after the ratification of cedaw, represents a national historical landmark regarding the protection of women’s human rights and the recognition of their citizenship in Brazil. The fc emerged after a long process of deliberations in plenary. Demands of social movements made it possible to include the notion of equal rights from an ethnic, racial and gender perspective. Women’s rights in the Constitution was the result of a mobilisation created by the National Women Council campaign, with the Council asking Brazilian women to send articles for the Constitution Assembly. With these proposals, the Letter of Women for the Constitution¹²⁴ was created, and suggestions for the text of the Constitution were collected. Suggestions included equality between men and women (article 5), maternity leave (articles 7(18) and (19)); encouraging the work of women, through protective rules (article 7(20)).

In recent years, Brazilian legislation has undergone some important changes, notably in the new content of the Civil Code of 2002, the changes in the Penal Code of 2005, as well as the advent of Law 11,340 in 2006 (Maria da Penha Law), which deals with domestic and family violence against women.

Brazil ratified two treaties that specifically address the eradication of gender inequalities: cedaw and the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women (Belém de Pará Convention).¹²⁵ Brazil ratified op-cedaw on 28 June 2002, through Decree 4,316, and without reservation.

In assessing the legislative impact of cedaw in Brazil, the Brazilian legislature has directly relied extensively on cedaw in legislative proposals. A search conduced in September 2023 in the database of Brazil’s House of Representatives shows at least 286 explicit mentions of the cedaw in legislative proposals,¹²⁶ the vast majority of them from the 2010s onwards. In order to illustrate this impact, two concrete examples are provided: (i) in 2015 cedaw was cited in a proposed Bill suggesting the ineligibility to any political position of those convicted civilly or criminally in situations of domestic and family violence against women;¹²⁷ (ii) in 2018, citing Brazil’s obligations under cedaw, the legislative branch presented a Bill to make political violence against women an electoral crime.¹²⁸

5.4.2 Reliance by Judiciary

The stf made two direct references to cedaw. The first is found in an inquiry against former President Bolsonaro, who was accused of the crimes of incitement to rape and injury.¹²⁹ The case against Bolsonaro was subsequently opened formally. The second is found in the collective habeas corpus that stipulated the replacement of pre-trial detention by domicile of female prisoners who are pregnant or mothers of children up to 12 years of age, and persons with disabilities.¹³⁰ cedaw was mentioned along with other mechanisms of the legislative network for the protection of women in order to build the argument about the situation of female vulnerability in certain situations. Moreover, in analysing the jurisprudence of the stf, four other references to the Convention were found in judgments, all as a legislative reference.¹³¹

5.4.3 Impact on and through Independent State Institutions

Stimulated by cedaw and as an answer for civil society’s claim, the State of São Paulo created a secretariat for the women of São Paulo. This secretariat stimulated the creation in 1985 of the National Centre for Women. After the re-democratisation, Lula’s government in 2003 created the National Secretariat for Women Politics. The Secretariat is the most relevant space to observe the impact of cedaw in independent state institutions. Between 2003 and 2015, the Secretariat had ministry status, and for this period produced recommendations to promote politics for eradicating discrimination against women and National Plans for Women whose goals was the development policies to revert racism and women discrimination in observance with international conventions and cedaw recommendations.¹³² cedaw was mentioned among all objectives. In 2015 the Secretariat lost ministry status and was engulfed by the Human Rights, Racial Equally and Women Ministry.¹³³ In 2016, then President Michel Temer extinguished this ministry and the National Secretary for Women went to the Justice Ministry. After Bolsonaro’s election, the Secretariat went to the Human Rights, Family and Women Ministry and cedaw was not directly mentioned. In 2023, the Ministry of Women returned was revived as an independent body, with Decree No. 11,351/2023 providing for its organizational structure, which has a National Secretariat for Institutional Articulation, Thematic Actions and Political Participation.¹³⁴

5.4.4 Impact on and through Non-state Actors

The impact of cedaw on and through non-state bodies in Brazil is significant, especially in the case of feminist ngos and non-state actors. The work of ngos related to the implementation of cedaw has been to elaborate alternative reports on the status of effective implementation of the Convention in Brazil, which are also sent to the cedaw Cttee. As many as 51 non-state feminist actors participated in the ten alternative reports on the cedaw website, indicating the extent of social mobilisation around cedaw in Brazil.

Regarding the impact of cedaw on the academy, when analysing publications in mechanisms such as SciELO and Google Scholar, several mentions to cedaw were found and in formats mainly of academic articles or coursework. The analysis, for the most part, is limited to the impact of cedaw in Brazil from observing the various scopes of women’s lives that should be impacted by the Convention (such as the labour market and access to education).

5.4.5 Impact of State Reporting

Brazil’s first report submission was only in 2002. The cedaw Cttee cos, covering reporting cycle i-v, recommended an upgrade in the database of women violence. As a response, Brazil presented the description and data of race, age and ethnicity data programmes.¹³⁵ The second report was in 2007,¹³⁶ covering reporting cycle vi.¹³⁷ In addition to the fight against gender violence, this report showed its enforcement in legislative procedure ‘a landmark achievement since publication of Brazil’s sixth report had been the passage of the ‘Maria da Penha Law on domestic and family violence, which had created special courts to hear domestic violence cases, stiffened the penalties for perpetrators and established protective measures for victims’. The report also highlighted programmes against gender discrimination and the realisation of the first National Conference for Women Policies. In response to the cedaw Cttee’s preoccupation with the divergence between judicial procedures and treaties, the Brazilian delegation highlighted the importance of Constitutional Amendment 45, which grants functional and administrative autonomy to the State Public Defenders’ Offices.

Brazil took numerous institutional and policy measures regarding the issues raised by the cedaw Cttee, in particular by establishing a National Plan for Women and Secretariat for Women Policy, which has been the most significant influence of cedaw in Brazil. In the last report, covering reporting cycle vii, the main goal of the country was the consolidation of the national policy for women. This policy included

[o]n one hand, the construction of the Multi-Annual Plan 2012–2015, a government planning tool that sets guidelines, goals and objectives in order to facilitate the implementation and management of public policies, guide the setting of priorities and assist in promoting sustainable development. On the other, the organization of the 3rd National Conference for Women Policies, which evaluated and redefined the priorities of the second National Plan for Women for the next period.¹³⁸

Also, the Multi-Annual Plan 2012–2015 has had directive guidelines for ‘human rights guarantee with the reduction of gender, ethno-racial, regional and social inequalities’. It is important to highlight that the second National Plan for Women Policies was used as a basis document by the Ministry of Planning, which led to the process of drafting the Multi Annual Plan.¹³⁹

Following this, an alternative report to the Brazilian report 2006–2009 was produced, ‘a contribution of the feminist and women’s movement to support the cedaw Cttee in its analysis and comments on the official report sent by the Brazilian State in 2010, and ensure appropriate and effective accomplishment of the Convention on the Elimination of All Forms of Discrimination against Women (cedaw)’.¹⁴⁰ This alternative report focuses on articles 1 and 2 (discrimination); 5 (violence, trafficking and sexual exploitation)’ 7 and 10 (education); and 12 (sexual and reproductive health, abortion and HIV/aids).

Additionally, Brazil participated in the follow-up procedure of the cedaw Cttee in February 2014,¹⁴¹ presenting a lengthy report on the impact of cos. It is important to highlight that ngos also presented alternative reports for the follow-up procedure, namely, cedaw Watch Brazil and the Centre for Reproductive Rights, which shows the importance of the procedure for Brazilian civil society. In its reply to Brazil, the Rapporteur for Follow-up on cos of the cedaw Cttee, the Committee concluded that Brazil had implemented most of the recommendations, either partially or fully. Two examples of full implementation is the establishment in 2013 of a national mechanism against human trafficking and the regional monitoring of data on collection and analysis of data on trafficking and on the exploitation of women in prostitution.

5.4.6 Impact of Individual Communications

In 2008 Maria de Lourdes da Silva Pimentel submitted a communication concerning Alyne da Silva Pimentel, her daughter, who was alleged to have been a victim of a violation by Brazil of her right to life and health under articles 2 and 12 of cedaw.¹⁴² The cedaw Cttee found a violation of article 12 (in relation to access to health), article 2(c) (in relation to access to justice) and article 2(e) (in relation Brazil’s due diligence obligation to regulate the activities of private health service providers).¹⁴³ The cedaw Cttee issued one recommendation specifically to Ms Da Silva Pimentel Teixeira and six general recommendations.

For the author and the family of Ms Da Silva Pimentel Teixeira, the Cttee recommended that Brazil ‘provide appropriate reparation, including adequate financial compensation, to the author and to the daughter of Ms da Silva Pimentel Teixeira commensurate with the gravity of the violations against her’. Brazil paid financial reparation to Ms Da Silva Pimentel Teixeira in March 2014,¹⁴⁴ and symbolically recognised the Brazilian government’s responsibilities for Alyne’s death. The government, represented by its Women Secretariat, paid compensation of US $55 000 and also, in the solemn ceremony, handed a certificate to Alyne’s mother acknowledging responsibility for the death and committed to undertake public policies for women’s health and maternity.¹⁴⁵

As far as general recommendations are concerned, the cedaw Cttee issued six recommendations,¹⁴⁶ specifically focused on policies for training health professionals and ensuring adequate sanctions for health professionals who violate women’s reproductive health rights. Hereafter, some federal states in Brazil incorporated legislative laws (in state and municipal levels) to protect maternity and reproductive rights, such as São Paulo through Municipal Law 15894/2013 and State Law 15759/2015. The decision also spurred an institutional response: Brazil has ‘established an inter-ministerial group to oversee the implementation of the Committee’s recommendations’.¹⁴⁷ Yet, the causal link between the cedaw recommendations and those measures is not clear.

5.4.7 Brief Conclusion

cedaw and the cedaw Cttee are very well known at the domestic level. In recent years, cedaw was an important instrument to guide Brazilian politics for women’s protection. This impact is mostly at the institutional level. The Women Secretariat, for example, was the body that represented the Brazilian government on the reparations to the Alyne Pimentel case. The decentralised bodies created for monitoring and guiding the gender questions in Brazil have had the most relevant impact, but this impact is largely limited to the municipal and state level.

5.5.1 Incorporation and Reliance by Legislature and Executive

cat was incorporated into domestic law by Decree 40 of 15 February 1991. One of the main efforts by the executive branch in Brazil to investigate torture was the establishment of the National Truth Commission (cnv). The cnv was established by the Brazilian government to investigate the serious human rights violations that occurred between 18 September 1946 and 5 October 1988, the period of the military dictatorship. These violations took place in Brazil and abroad, committed by Brazilian public agents, persons in their service, with the support or in the interest of the state. The Committee was made up of seven members appointed by former President Dilma Rousseff, who were assisted by advisors, consultants and researchers. Law 12,528/2011, which instituted it, was passed in 2011, and the Commission was officially installed in 2012. The cnv concentrated its efforts on examining and clarifying human rights violations committed during the latter dictatorship, especially as regards torture.

In 2006 the National Congress approved the ratification of the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (op-cat). On 26 June 2006 – International Day against the Torture – President Luiz Inácio Lula Da Silva established the National Committee for the Prevention and Control of the Torture in Brazil.¹⁴⁸ Among its duties, the Committee is takes to propose actions and programmes to combat torture. It consists of 23 members, 11 of whom are representatives of federal executive branch bodies and 12 of professional class councils and civil society organisations.

In 2006,¹⁴⁹ the Commission on Human Rights and Minorities produced a report on the prison situation throughout the country, in which torture is one of the main problems identified. This Commission established an Integrated Action Plan for the Prevention and Combat of Torture that influenced state legislation such as State Management Committee for Monitoring the Implementation of the Plan of Integrated Actions for the Prevention and Combating Torture. Another important point to highlight is the omission of the Brazilian state regarding the applicability of public policies to combat torture. One of the most emblematic actions involving the National Mechanism for Prevention and Combating Torture took place in 2015, when experts delivered to the government a report denouncing the precarious conditions and the climate of tension in Compaj (Anísio Jobim Penitentiary Complex), in Manaus. In this document the experts found that the complex housed 697 prisoners more than the capacity and highlighted the fact that Compaj had agents from a private company, Umanizzare, to make the site safe. In the analysis of the agency, this resulted in deficient training, precarious work, high turnover and insufficient number of security employees – only 153 worked on the day of the visit, compared to 250 under contract. The document was ignored and in 2019 one of the worst massacres in Brazilian prisons, the rebellion of the Penitentiary Anísio Jobim in Manaus, took place.¹⁵⁰

In assessing the legislative impact of cat in Brazil, it is key to observe that the Brazilian legislature has quite often placed direct reliance on cat in legislative proposals. A search conduced in September 2023 in the database of Brazil’s House of Representatives has shown at least 49 explicit mentions¹⁵¹ to cat in legislative proposals, the vast majority of them from 2005 onwards. Considering the fact that Brazil ratified cat in 1989, shortly after the promulgation of the Federal Constitution in 1988, it shows that in Brazil the impact of UN human rights treaties has occurred primarily after democratisation. In order to illustrate this impact, two concrete examples are cited: (i) in 2007 cat was cited in a proposed Bill suggesting that torture should also be an act of administrative ‘improbity’;¹⁵² and (ii) in 2005, the legislative branch requested an international seminar about op-cat.¹⁵³

5.5.2 Reliance by Judiciary

cat is directly mentioned in several cases on the stf.¹⁵⁴ Reference to cat is often related to the unconstitutionality of the violations of rights in the prison system, and shows the necessity of the minimum guarantee of personal, and the physical and mental security of detainees as a state duty. One of the key cases in this regard concerns the unconstitutional state of affairs in the prison system in Brazil, in which the stf determined a series of measures to be taken by lower judges, in particular to avoid whenever legally possible ordering prison sentences.¹⁵⁵ In a report, ngos and the public defender’s office analysed the prohibition of torture in the Brazil’s judiciary between 2005 and 2010:¹⁵⁶ (1) it has been common to find cases in which the Public Ministry absolves the accused; (2) the production of evidence in cases where the authors are public officials is more deficient than when private agents are involved or if, in fact, there is a different view from the operators of the right in relation to cases, depending on who the perpetrator of the crime is; (3) finally, most of the judgments dealt with the criminal ‘torture-punishment’ or ‘proof-torture’, none of them dealt with the crime of ‘torture-discrimination’, very few dealt with torture in its omissive modality and psychological torture. The understanding of torture is often restricted to physical torture. There is a definite need for Brazil to improve its performance in terms of torture.

5.5.3 Impact on and through Independent State Institutions

In São Paulo, the state with the largest number of people arrested in the country, a law was passed in December 2018 by São Paulo’s Legislative Assembly (ALESP) providing for the creation of an anti-torture mechanism, but it was vetoed in its entirely by Governor João Dória Jr (psdb). The National System for the Prevention and Combat of Torture is an advisory board also composed by other entities rather than itself, such as the depen (National Penitentiary Department), organisations of the justice system and community committees.¹⁵⁸

Second, in 2013, after international pressure, Law 12,847/13 was promulgated, to institute the National Mechanism for the Prevention and Combat of Torture (mnpct). Yet, in June 2019, former President Bolsonaro signed Presidential Decree 9,831. According to a report by the spt, this Decree introduced ‘a new model’, the main differentiating feature of which is that the members/experts of the mnpct would cease to be remunerated and would exercise their functions on a voluntary basis (article 4 of Decree 9,831 that modifies article 10 of Decree 8,154). The June 2019 Decree also removes the requirement for its membership to be diverse in terms of gender, race and regional representation and, in ways that remain somewhat unclear, dismantles the npm’s administrative support structure.¹⁵⁹ Brazil’s President has not revoked the Decree, despite the request by the spt to do so, but in August 2019 the judiciary maintained the remuneration for the 11 experts of the National Mechanism,¹⁶⁰ citing op-cat in support.¹⁶¹

5.5.4 Impact on and through Non-state Actors

cat is usually mentioned in campaigns for the protection of human rights. National human rights ngos make intensive use of cat and the cat Cttee’s cos. In 2019 ngos (Justiça Global, Terra de Direitos e Instituto de Defensores de Direitos Humanos) denounced former President Bolsonaro to the UN after he had issued Decree 9,831/2019,¹⁶² which discharged experts from the national mechanism to combat torture. The cat Cttee called Bolsonaro to explain the situation. As mentioned above, after this, the controversy went to judiciary power and Federal Justice, which determined the suspension of the exoneration. One of the key ngos working with the fight against torture in Brazil is Pastoral Carceraria, which has developed a series of manuals containing guidelines for monitoring prisons and other places of detention.¹⁶³ Those practical guidelines are based on cat and its Optional Protocol, demonstrating a direct impact of the treaty.

5.5.5 Impact of State Reporting

Brazil has extensively engaged with the cat Cttee’s reporting procedure, with substantial delays in submitting the periodic reports (10 years in the first reporting cycle and 18 years’ delay in the second reporting cycle). In 2001 the cat Cttee requested the state ‘to guarantee to any person deprived of his or her liberty the right of defence and, consequently, the right to be assisted by a lawyer, if necessary at the state’s expense’.¹⁶⁴ Since then, the number of free legal aid has increased in Brazil with the spread of public defenders’ offices across the country, although there is still a need for more public defenders in most of the states.¹⁶⁵ In its 2009 cos,¹⁶⁶ the cat Cttee recommended that the state party should protect human rights in judicial procedures; carry out awareness-raising campaigns in order to sensitise all sectors of society about the issue of torture and ill-treatment and on the existing conditions of detention centres; and ensure optimal conditions of detention in adult and juvenile detention centres. In this regard, the federal government manages the National School of Criminal Services (espen) which deals with education for public officials, including prison personnel and police, on human rights. One of the key influences of cat in Brazil is the establishment of custody hearings in 2015, which seek to check, within 24 hours after arrest, the legality of the arrest, including whether the detainee was subjected to torture or ill-treatment in custody.¹⁶⁷

5.5.6 Impact of Individual Communications

No communication has been submitted to the cat Cttee against Brazil.

5.5.7 Impact of Other Measures: spt Visits and Article 20 Inquiry Procedure

In line with articles 1 and 11 of op-cat, the spt conducted visits to Brazil in 2009 and 2015.¹⁶⁸ The spt in its first visit highlighted that it had received allegations of beatings and ill-treatment as a form of punishment. In its 2017 report, following its 2015 visit, the spt recommended that the ‘Federal Government, through the federal Human Rights Secretariat, take a more proactive approach as part of an established national public programme, in coordination with state-level authorities, to foster the creation of local mechanisms’.¹⁶⁹ This may include meetings with high-level state authorities, regular advocacy visits to the states, technical support for the drafting of legislation and economic incentives through allocation of funds. This recommendation was implemented. According to Brazil’s 2020 report, the Federal Pact for Preventing and Combating Torture was published in the Federal Official Gazette through mmfdh Ordinance 346 of 19 September 2017. In July 2018, mmfdh organised the Third National Meeting of National Committees and Mechanisms for Preventing and Combating Torture. The Third Meeting resulted in the publication of the Brasilia Letter, which gathers a set of proposals resulting from the analysis of the needs in order to strengthen snpct. The letter specifically suggests the adoption of a set of actions aiming at encouraging and implementing State Committees and Mechanisms.¹⁷⁰ Yet, there were recent setbacks in the national mechanism against torture in 2019, as mentioned above.

In its report published in 2016,¹⁷¹ the spt alerted the Brazilian authorities to the problems of the prisons that ended up leading to the Manaus massacre soon thereafter – in 2017.¹⁷² Here, it is important to highlight the failure of the Brazilian authorities to take action on the issue of prisons, with the country being tainted by rebellions in prisons. Yet, some measures taken by the government regarding this issue can still be mentioned. For example, every four years the National Council for Criminal and Penitentiary Policy develops the National Criminal Policy Plan, which sets the guidelines for this policy, in compliance with what is contained in article 64, items i and ii of Law 7,210 of 11 July 1994 (Penal Execution Law). The last of these Plans was developed in 2019.

Finally, Brazil has engaged extensively with the inquiry procedure under article 20 of cat. In 2006 the cat Cttee presented conclusions regarding an investigation into the Brazilian situation.¹⁷³ Later on, the Brazilian government replied to the Committee’s concerns. One of the recommendations from the cat Cttee was that ‘the problem of overcrowding in detention centres must be solved by adopting measures urgently, such as awareness-raising of the judiciary of the possibility of applying alternative sentences’.¹⁷⁴ Several measures for inducing the application of alternative sentences have been implemented by the Brazilian judiciary, although the level of mass incarceration in Brazil places the country in the third position in the world. In its comments replying to the inquiry procedure, Brazil recalled the creation of the General Coordination of Alternative Sentencing, and the creation of Special Federal Criminal Courts applying a wider range of crimes to alternative sentences.¹⁷⁵

5.5.8 Brief Conclusion

cat has had an important impact in Brazil to protect citizens from torture, mainly after the country’s democratisation process, through legislative reforms and judicial decisions. However, despite having guided legal changes at various levels, these changes were not accompanied by consistent public policy projects. There has been a constant neglect in dealing with the subject and increasingly the dismantling of oversight mechanisms, both at the state and federal levels, indicating that the Brazilian state neglects its international obligations. The need for change remains urgent.

5.6.1 Incorporation and Reliance by Legislature and Executive

Brazil ratified the crc on 24 September 1990, not long after the promulgation of the Federal Constitution in 1988. It was incorporated into domestic law by Decree 99,710 of 21 November 1990. The most important Brazilian law on the subject is the Statute of the Child and Adolescent, which provides for integral child and adolescent protection (Law 8.069 of 13 July 1990). It changed the legal framework for children’s rights in Brazil. The Federal Constitution in article 227 also guarantees the fundamental rights of children and adolescents, and safeguards them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression.

In addition, on 27 January 2004 Brazil ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (op-crc-sc), and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (op-crc-ac). In 2009, with Constitutional Amendment 59,¹⁷⁶ Brazil made schooling obligatory for students from 4 to 17 years old. In 2016 the legal marker for the start of childhood was institutionalised by Law 13.257.¹⁷⁷ Brazil ratified the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (op-crc-cp) on 29 September 2017.

The Brazilian legislature has directly relied on crc extensively in legislative proposals. Two examples are provided: (i) In 2017 crc was cited in a proposed Bill suggesting that imprisoned women with underaged children should serve their sentences in the form of house arrest;¹⁷⁸ and (ii) in 2019 another proposed Bill aimed at typifying paedophilia as a heinous crime cited crc.¹⁷⁹ A search conduced in September 2023 on the database of Brazil’s House of Representatives revealed at least 237 explicit mentions of crc in legislative proposals,¹⁸⁰ the vast majority of them from the 2000s onwards.

5.6.2 Reliance by Judiciary

The stj mentioned crc directly five times as a mechanism of child protection. Those mentions were announced by three of its Informativos de Jurisprudência,¹⁸¹ documents periodically released with notes on relevant theses defended in stj judgments, chosen for their legal repercussion and novelty. A habeas corpus of 2009 citing crc was found in ‘decisions of the presidency’ of the stf. In case law reports, two documents were found that directly cite the Convention. One extraordinary appeal was found, in which crc is cited. However, the appeal was denied.¹⁸²

5.6.3 Impact on and through Independent State Institutions

csos produced alternative reporting to describe the situation of children and crc.¹⁸³ In 2006 all but 8 per cent of Brazilian municipalities had in place Municipal Councils for the Rights of the Child (cmdcas). Nevertheless, when analysing regional data, striking differences are noted, and ‘there is still a precarious balance between forces of government and civil society, what create problems of independence, since 60% of counsellors reported being public servants, coming from the executive, legislative and judicial powers’.¹⁸⁴ State Councils for the Rights of the Child (cedcas) were created in all states, but half of them did not structure procedures for monitoring and evaluating policies for children. Brazil has a database for children’s rights, Sistema de Informações para a Infância e Adolescência (sipia), which serves as an important tool to generate data on childhood.¹⁸⁵

5.6.4 Impact on and through Non-state Actors

The United Nations Children’s Fund (unicef) joined its voice with Brazilian ngos for the drafting and approval of article 227 of the Federal Constitution and the Statute of the Child and Adolescent. In addition, unicef was in solidarity with the Brazilian Parliament, the government and society in approving Law 9,534/97, which made civil birth registration free for all Brazilians. unicef has also taken action for the approval of Constitutional Amendment 59, which made teaching from 4 to 17 years compulsory and also secured more resources for education. These were important victories for education in the country, which unicef supported from the outset. Since 1966 in Brazil, Child Fund Brazil is a social development organisation that through solid experience in designing and monitoring social programmes and projects mobilises people for life transformation. Children, adolescents, young people, families and communities at risk are supported so that they can fully exercise the right to citizenship.

In order to promote lasting results, social projects are developed with the involvement of families, communities and society in the creation of protective and caring environments for children, adolescents and young people. Through social projects, Child Fund Brazil benefits more than 140 000 people, of which over 42 000 are children, adolescents and young people. For this, Child Fund Brazil has the partnership of 45 social organisations, which operate in more than 40 municipalities.

The SciELO website revealed direct mention of the Convention in two papers,¹⁸⁶ and the Google Scholar platform showed one direct mention of the Convention.¹⁸⁷

5.6.5 Impact of State Reporting

In its cos to Brazil, issued in 2004, the crc Cttee welcomed the Constitution and other law reforms, but noted with extreme concern ‘the dramatic inequalities based on race, social class, gender and geographic location which significantly hamper progress towards the full realisation of the children’s rights enshrined in the Convention’.¹⁸⁸ In 2015 the crc Cttee focused its recommendations on violence against children and the end of inequalities. As mentioned in a Master’s thesis about the impact of the crc Cttee in Brazil from 2018,¹⁸⁹ one such inequality is the issue of healthy nutrition and obesity. In this regard, Brazil adopted Resolution 163/2014 of the National Council on the Rights of Children specifically about advertisement for children, including the concern about promotion of healthy nutrition. Additionally, the crc Cttee also requested Brazil to take all necessary measures to address the issue of children incarcerated with their mothers (paragraph 50). In this regard, Brazil’s Federal Supreme Court in 2018 issued a collective habeas corpus in favour of mothers incarcerated with their children or pregnant women, ordering their release from prison.¹⁹⁰ However, lower courts remain reluctant to do so.

5.6.6 Impact of Individual Communications

No communications have been submitted to the crc Cttee against Brazil.

5.6.7 Brief Conclusion

crc was important for adherence at the municipal, state and national levels of child protection. Here, we can include initiatives taken to create councils and secretariats. Legislative changes were also relevant to the incorporation of the Convention. Still in this context, the need for the country to adopt policies that manage to encompass its different contexts is expressed. There still is a need for an effort to protect children and adolescents more and more.

5.7.1 Incorporation and Reliance by Legislature and Executive

ced, which Brazil ratified on 29 November 2010, was incorporated into domestic law by Decree 8,767 of 11 May 2016.¹⁹¹ The Decree explicitly refers to the promulgation of ced. Even before the Convention’s incorporation into domestic law, there was a legal reform proposal (pls 236/2012) that rendered the forced disappearance of people into crimes against humanity and provided for the imposition of a penalty of up to six years on perpetrators.¹⁹² There was also an attempt to insert the crime of enforced disappearance into the current Penal Code (article 149-A), through pl 6.240/2013, with a penalty of up to 12 years’ imprisonment. This project is still ongoing in the House of Congress. In assessing the legislative impact of ced in Brazil, it is key to observe that the Brazilian legislature has directly relied extensively on ced in legislative proposals. A search conduced in September 2023 on the database of Brazil’s House of Representatives has shown at least 11 explicit mentions to ced in legislative proposals,¹⁹³ the vast majority of them dating from 2009 and 2013.

5.7.2 Reliance by Judiciary

The spt has made no direct or indirect references to ced, although six judgments refer to the Inter-American Convention on Forced Disappearance of Persons.¹⁹⁴ However, it should be noted that the use of the ‘forced disappearance’ search engine resulted in a total of six judgments, which in turn refer to the Inter-American Convention on Disappearance. In the stj, as well as the Courts of Justice and other lower courts of the country, no rulings are found that directly mention ced but, again, some reliance was placed on the Inter-American Convention on Forced Disappearance.

5.7.3 Impact on and through Non-state Actors

In March 2012 Human Rights Watch Brazil praised federal prosecutors for offering criminal charges in relation to abuses during the military regime,¹⁹⁵ which was soon thereafter rejected by the judiciary on the basis of the amnesty law.¹⁹⁶ The denunciation dealt with the charge against Colonel Curió Rodrigues de Moura for forced disappearances in 1974, in Pará. That was the first criminal case in respect of crimes committed during the military regime. ced was mentioned as an obligation of the country to provide reparation to the victims. In April of the same year, the organisation once again denounced Brazil for crimes committed during the dictatorship. In 2011 ced appeared in a request of Conectas and Corporación Humanas to investigate the circumstances surrounding the death of Muammar al-Gaddafi.¹⁹⁷

While no mention has been made of ced in Brazilian academic articles or research, some references to the Inter-American Convention against Forced Disappearance have been noted.¹⁹⁸

5.7.4 Impact of State Reporting

Brazil submitted its first report in 2019. The country highlighted that ‘there is no law on enforced disappearances in Brazil; however, the country may face forced disappearances perpetrated by persons or groups of persons acting without authorisation, notably related to land conflicts in remote rural areas, drug trafficking/anti-drug actions, and internationally’.¹⁹⁹ The report mentioned the creation in 2017 of the National System for Locating and Identifying Missing Persons of the Prosecutor’s Office.

5.7.5 Brief Conclusion

The ratification of ced was motivated by the country’s efforts to overcome a legacy of human rights atrocities, including enforced disappearances, and to progress towards greater democratisation. Brazil’s implementation of ced has not been satisfactory. Its first report was submitted only in 2019. While the ratification dates from 2010, the Legal Decree to promulgate it was signed by the President only in 2016.

5.8.1 Incorporation and Reliance by Legislature and Executive

Brazil ratified crpd on 30 March 2007, together with its Optional Protocol, with the result that crpd and op-crpd entered into force in Brazil on 1 September 2008.²⁰⁰ The National Congress through Legislative Decree 186 of 9 July 2000 approved crpd and incorporated it into domestic law, with constitutional amendment status, by Decree 6949 of 25 August 2009. Its headnote explicitly refers to the promulgation of crpd and op-crpd.

Other measures include Law 12319/2010 (regulating the profession of translator and interpreter of Brazilian Sign Language (libras)); Cidade accessível é Direitos Humanos (encouraging society to make a commitment to full participation of people with disabilities and demonstrate the importance of providing equal opportunities in cities); Law 12033/2009 (modifying article 145 of the Criminal Code to make possible public prosecution of defamation cases including those referring to persons with disabilities).

The Brazilian legislature has directly relied extensively on crpd in legislative proposals. A search conduced in September 2023 on the database of Brazil’s House of Representatives has shown at least 306 explicit mentions of crpd in legislative proposals,²⁰² the vast majority of them from 2015 onwards – when the Brazilian Law for Inclusion was passed.²⁰³ In order to illustrate this impact, it is possible to cite two concrete examples: (i) In 2019 crpd was cited in a constitutional amendment proposal suggesting the use of ‘persons with disabilities’ in the Constitution rather than ‘disabled people’;²⁰⁴ and (ii) in 2019 another proposed Bill, aimed at eliminating additional fees to students with disabilities in private educational institutions, cited crpd.²⁰⁵

5.8.2 Reliance by Judiciary

crpd appears in 16 judgments of the stf, of which nine cites crpd directly. The Habeas Corpus case is prominent among those.²⁰⁶ In this matter, the stf had to determine alternatives to preventive custody of imprisoned women who are guardians or mothers of children of up to 12 years, or persons with deficiencies, while taking into account the alternative measures in article 319 of the Code of Penal Process (cpp). The stf’s decision in favour of those suffering consequences of severe burns is another illustration of the strong inclusion of crpd in Brazil. Other citations include the direct relationship between the Convention and the Constitution of the Republic. In the Superior Court of Justice, there are 29 mentions of crpd, 20 of them in relation to the Federal Supreme Court’s Habeas Corpus 143641 judgment.

5.8.3 Impact on and through Non-state Actors

ngos such as Human Rights Watch have highlighted non-compliance with the Convention, for example in its report ‘they stay until dying: A life of isolation and neglect in institutions for people with disabilities’.²⁰⁷ ngos have organised various seminars on the Convention.²⁰⁸ A search on the Abraça portal for the term ‘Convention on the Rights of Persons with Disabilities’²⁰⁹ resulted in 51 mentions, among them six manifestos from ngos.²¹⁰ A search in fbasd,²¹¹ for the term ‘Convention on the Rights of Person with Disabilities’, revealed 33 mentions, among them the organisational statutes of a number of ngos. At Inclusive portal,²¹² a search for the term ‘Convention on the Rights of Person with Disabilities’ led to 2 700 results. On the Baresi Institute portal, a search for the term ‘Convention on the Rights of Person with Disabilities’ showed 5 news items that mentioned crpd. A search of the Down Movement portal for the term ‘Convention on the Rights of Person with Disabilities’ showed ten news items mentioning crpd. Using the search term ‘Convention on the Rights of Persons with Disabilities’ on Google Scholar showed two results. When the same search engine was used on the SciELO portal, specifically selecting Brazilian articles, as it is an international portal and some general results related to Portuguese works, two results were found.²¹³ All the searches mentioned above were conduced in June 2020.

5.8.4 Impact of State Reporting

In 2012 Brazil submitted its first report.²¹⁴ In 2015 the Committee sent a list of questions for the country to answer.²¹⁵ In 2015, csos also submitted information to the Committee.²¹⁶ In September of the same year, the Committee issued its cos.²¹⁷ These cos acknowledged crpd as a constitutional landmark. The cos recommended the adoption of policies to address discrimination against disability in all areas, including incarceration policies. In 2015 a permanent commission on the rights of persons with disabilities in the Chamber of Deputies of the National Congress was created, and a national plan for the rights of persons with disabilities entitled ‘Living without limits’ was approved. In 2016 the Statute for Persons with Disabilities, a national anti-discrimination law on people with disabilities, entered into force. One of the advances brought about by this statute was the prohibition on charging additional fees for enrolments and fees for private educational institutions; legislation requires that 10 per cent of hotel and hostel dormitories be accessible and that at least one accessible unit be guaranteed; and that workers with disabilities must have recourse to the Guarantee Fund for Length of Service when receiving a prescription for orthosis or prosthesis to promote its accessibility.

5.8.5 Impact of Individual Communications

Two communications were submitted against Brazil, and declared inadmissible by the crpd Cttee.²¹⁸

5.8.6 Brief Conclusion

crpd is one of the treaties that has had the greatest impact in Brazil. It has influenced a significant number of legislative changes and has inspired important court judgments. Civil society and ngos showed a strong commitment. Two communications were submitted to the crpd Cttee, but were declared inadmissible.