Brazil: Children should not be tried as adults from 16 years-old

The World Organisation Against Torture (OMCT), Legal Advisory Office for Popular Organisations (GAJOP), the Centre for the Defence of Children and Adolescents (CEDECA Ceará) and the Coalition for Socio-Education express their deep concern over the Proposed Amendment to the Constitution (PEC) No. 32/2015 currently discussed at the Brazilian National Congress, which aims at reducing from 18 to 16 years old the age at which children will be tried as adults.

If adopted, this measure would represent a serious setback of the human rights of children and adolescents, and a violation of Brazil's international commitments - including under the UN Convention on the Rights of the Child, the United Nations Convention against Torture, its Optional Protocol to the Convention (OPCAT), the Beijing Rules, the Riyadh Guidelines, and the Havana Rules.

This proposal would especially represent a violation of article 40 of the UN Convention on the Rights of the Child, prescribing that States should establish a specific justice system for minors, taking into account the child's age, with an aim to rehabilitation of the children and their reintegration into society. This specific system should, among others, establish differentiated sanctions from the ones applying to adults.

On the contrary, trying and sentencing children from 16 years old as adults would expose them to a justice system designed for adults, including longer sentences, within a system marked by overcrowding, massive violation of rights and the recognized inability to guarantee effective processes of accountability, protection and social reintegration. In 2023, the Supreme Court recognized that massive and systemic violations of rights, overcrowding, and the failure of public policies in prisons. Trying children through the adult criminal justice system and detention in adult prisons would expose them to additional risks of torture and other cruel, inhuman or degrading treatment of punishment.

This measure would also violate article 37 of the UN CRC which prescribes the separation of children from adults in detention, and would expose them to high risks of abuse, torture and other ill-treatment from adult prisoners.

In addition, the age of adult criminal responsibility at 18 years of age is a fundamental right provided for in articles 227 and 228 of the Brazilian Constitution. It cannot be abolished or reduced by constitutional amendment, under penalty of violation of article 60, paragraph 4, IV, of the Federal Constitution. It is, therefore, a material limit to the power to reform the Constitution. PEC 32/2015 or any proposal that has as its object the reduction of the age of adult criminal responsibility does not promote a simple legislative change but seeks to suppress a constitutional guarantee essential to the regime of full protection.

The OMCT is also very concerned about proposed Bill 2.953/2023 in the Brazilian Federal Senate, which seeks to extend the maximum period of detention for adolescents for adolescents in conflict with the law of from three to ten years, which goes against the UN CRC prescription that deprivation of liberty of children should be a measure of last resort and for the shortest time possible. Bill 2.953/2023 undermines fundamental principles of the Brazilian legal system and international standards by disregarding the principles of brevity, exceptionality, and respect for the evolving capacities of the child, which are the foundations of socio-educational measures provided by the law.

By transforming these measures - which are meant to be pedagogical and protective - into punitive and retributive mechanisms, the bill strips them of their rehabilitative purpose and denies adolescents the objective to social reintegration. Extending the duration of detention has no empirical basis: national and international studies show that longer periods of incarceration do not reduce recidivism. On the contrary, they increase the likelihood of reoffending and exacerbate the risks of institutional violence, overcrowding, and torture within detention facilities.

The OMCT warns that lengthening detention periods in a system historically marked by reports of abuse, ill- treatment and torture, as well as and structural violations will create even more favorable conditions for further torture and cruel, inhuman, and degrading treatment and punishment. Reducing the frequency of judicial reviews further weakens essential safeguards, increasing system opacity and reducing state accountability. Moreover, the bill lacks impact assessments on budgetary and institutional capacity, which could overload state systems and divert resources away from more effective interventions - such as community-based measures, restorative justice programs, psychosocial support, education, and family reintegration - toward maintaining an expensive, ineffective model of detention which is conducive of violations of children's rights.

As the review of both text advances, the OMCT urges the members of the Congress senators to reject both PEC 32/2015 and Bill 2.953/2023 in their entirety and reaffirm Brazil's constitutional commitment to the comprehensive protection of children and adolescents. Approving these proposals would represent a historic regression and place the country on a collision course with its international human rights obligations.

The OMCT further calls on the Brazilian state to adopt a positive agenda based on evidence-driven policies focused on prevention and social reintegration. This includes strengthening non-custodial socio-educational measures, increasing the frequency of judicial reviews, ensuring access to legal assistance and psychosocial services, investing in education and protected employment policies, and fully implementing independent torture prevention mechanisms with regular inspections and public reporting.

The OMCT reiterates that the deprivation of liberty for adolescents must be used only as a last resort and for the shortest possible time, as established by international human rights treaties. Brazil now faces a historic opportunity to reaffirm its commitment to comprehensive protection and socio-educational justice - and must not revert to punitive, and rights-violating models that only perpetuate cycles of exclusion, violence, and torture.