Home Law International Handbook of Juvenile Justice
THE COUNTRY’S STANCE TOWARD THE UN COMMITTEE ON THE RIGHTS OF THE CHILD
The approval of the ECA in 1990 is a milestone for the country. It represents the start of the so-called third phase in the development of juvenile justice in Brazil. Substantiated by the contents of the Convention on the Rights of the Child of 1989, this third phase according to Mendez (2006) is characterized by the separation of social problems from those linked to conflict with the law. This guarantees the right of children and adolescents to express their desires and ultimately the accountability of children and adolescents, including in the criminal sense (Mendez 2006).
Prior to the passage of the ECA, articles 227 and 228 of the 1988 Constitution laid out a number of rights and guarantees for children. This brought national Brazilian law in accordance with the international laws and doctrines regarding children of the United Nations. For the first time, children and adolescents were recognized as full legal subjects and were given specific rights separate from those laid out as family rights, which could only be exercised by adults in the family unit (mothers and fathers). In addition, it made a distinction between youth in situations of risk or abandonment and those who committed an illegal act. Thus ending the guardianship model of juvenile justice that often treated socially vulnerable youth as criminals (Marinho 2012). In addition, both article 227 of the 1988 Constitution and the ECA call for the full protection of children and adolescents, to be provided by the family, the State, and civil society. As such, these actors are responsible for the survival, development, and protection of all children and adolescents and not just those in “irregular situations,” i.e., at risk, delinquent, or abandoned (Arruda, Jalusa Silva de 2011).
The ECA distinguishes between a child, any individual under 12 years of age, and an adolescent, all persons aged between 12 and 18 years. A child is not criminally liable, while adolescents are seen as criminally liable, but this liability is not punishable by the adult Penal Code. For adolescents who have committed illegal acts, the ECA provides the guarantee of the same rights of due process found in the adult legal system (Brasil 1990).
The ECA laid out three systems of guarantees for the protection of children. The first is in regard to the creation and maintenance of public policies serving children and adolescents. The second system of guarantees is in regard to protective measures for socially vulnerable or abandoned children and adolescents.
The third system is in regard to socio-educational measures, the nomenclature for sanctions levied against adolescents who have committed illegal acts. With this distinction between protective and socio-educational measures, the ECA laid out a separate set of procedures, actions, and institutions for at-risk or socially vulnerable youth than those for juvenile offenders.
For juvenile offenders, article 12 of the ECA stipulates a plurality of sanctions, following the UN Riyadh Guideline Directives for juvenile offenders. These options range from giving a warning to incarceration, thus providing judges more options for sentencing.
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