:: International Human Rights: monitoring of the UN recommendations to Brazil::

Transcrição

1 International Human Rights Program International Monitoring Project :: International Human Rights: monitoring of the UN recommendations to Brazil:: 1st edition

2 direitoshumanosinternacionais*gajo Direitos Humanos Internacionais: construção de bases para o p*direitoshumanosinternacionais*gaj monitoramento das op*direitoshumanosinternacionais*g ajop*direitoshumanosinternacionais* gajop*direitoshumanosinternacionai s*gajop*direitoshumanosinternacion ais*gajop*direitoshumanosinternacio nais*gajop*direitoshumanosinternaci onais*gajop*direitoshumanosinterna D598 International Human Rights: monitoring of the UN recommendations to Brazil. Recife: dhinternacional GAJOP, (International cionais*gajop*direitoshumanosintern Human Rights Program) acionais*gajop*direitoshumanosinter 40p.; 21cm nacionais*gajop*direitoshumanosint 1. Human Rights 2. Monitoring 3. Recommendations I. Title ernacionais*gajop*direitoshumanosi CDU CDD nternacionais*gajop*direitoshumano sinternacionais*gajop*direitoshuman osinternacionais*gajop*direitoshuma nosinternacionais*gajop*direitoshum

3 monitoramento das Expedient GAJOP Legal Advisory Office for Popular Organizations International Human Rights Program (DHI) Staff Luis Emmanuel Cunha Barbosa, attorney Ingrid Leão, consultor Marina Maranhão, graduated in Law Lucas Camarotti, intern Clara Couto, International Relations intern Collaborator Sébastien Conan, lawyer Alexandre Nápoles, volunteer advicer Rodrigo Deodato, volunteer advicer Agustina Calafell, Law student GAJOP Coordination Célia Rique, social scientist Jayme Benvenuto Lima, attorney Contact International Human Rights Program (DHI) of GAJOP Legal Advisory Office for Popular Organizations - NGO with special consultative status in UN s ECOSOC. Rua do Sossego, 432, Boa Vista, CEP Recife Pernambuco Brasil Fone/Fax: 55 (81) / 55 (81) gajopdh@uol.com.br Skype: gajopdhi Site: Monitoring website: Support

4 monitoramento das SUMMARY Presentation:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::05 Methodological Notes::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::08 Universe of recommendations::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::12 Partial Results of Systematization::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 16 Types of Suggested Actions:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::16 Recipients:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::20 Presentation by Sources::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::28 Themes and Subthemes:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::28 Conclusions and Final Commentaries:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::37 Annex::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::40 Annex A:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::40 Annex B:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::49

5 monitoramento das ::Presentation:: In August 2008, the DHI (Programa Direitos Humanos Internacionais- International Human Rights Program) began a project of international Human Rights Monitoring, seeking to put into effect a new phase of international mechanisms for the promotion and protection of those rights. Within its first eight years of existence ( ), the DHI emerged as a point of reference after setting in motion the international systems of human rights protection. The work of the DHI made it so that entities and social groups, particularly in Brazil s northern regions, could have easier access to the OAS and UN systems. In this fashion, the initial actions of this program were concentrated on international litigations, national and international mobilizations, and formation activities. The objective was to change the Brazilian State s human rights policies in favor of more effective ones. The project consisted of evaluating international recommendations and employing activities under the use of international systems, which allowed for the civil society, human rights defenders, and lawyers of human rights organizations to effectively update within the international systems. Based on the results, we can identify the real capacity of the DHI to contribute in the legislative field (law creation and modification - EC35/2001- about parliamentary immunity), in the field of public policies (program for protection for human rights defenders), in the field of protection of life and physical integrity (provisional measures before the Inter-American Commission of Human Rights -IACHR), and in the field of investigations, procedural and criminal, beginning with cases of violations taken before the OAS and the UN, with the establishment of inquiries and advancement of criminal trials subject to impunity due to negligence by local authorities. Since 2008, the DHI launched a project of international human rights monitoring, to be implemented within The project is the result of an institutional process, reflexive

6 monitoramento das and evaluative, realized in This evaluation showed the need of new actions, along with an international system of promotion and protection of human rights. The monitoring of the international human rights recommendations directed at the Brazilian State, are privileged means of international actions. The cases of violations that are considered emblematic continue to be made known to the OAS and the UN. The recommendations direct at Brazil, starting with those of the United Nations, came to implicate a monitoring proposal in order to assert the degree of implementation achieved by the Brazilian State. Therefore, the first step is the systematization of the recommendations made to Brazil, which enables a better evaluation of the content. Subsequently, we chose human rights indicators in order to effectively initiate the monitoring process with diagnostics and analyses. This need to understand and take ownership of these recommendations appeared during meetings, conferences, and seminars with human rights organizations. This occurred specially in the Conference on Indicators for the International Monitoring of Human Rights (Seminário sobre Indicadores para o Monitoramento Internacional de Direitos Humanos), promoted by GAJOP, which took place in Recife, in November Within the same meeting, several entities made themselves available to perform an urgent and punctual exercise for the 11 th National Human Rights Conference, scheduled for the following December. This assignment was to form a compilation of the UN s recommendations, relating those chosen to the main themes of the Conference. Since this initiative, it has been possible to edit a specific agenda with the international recommendations, called UN Axis 1. The members of the Conference allowed Brazil to carry out the UN recommendations within directives. This reflects the importance of this international instrument in subsiding relevant debates, while simultaneously showing how little it has been managed, and even little spread nationally. Subsequently, the final document of the 11 th National Human Rights Conference (11 th NHRC), which took place in Brasília, from the 15 th to the 18 th of December, 2008, led to apprehension regarding the implementation of the international human rights acts.

7 monitoramento das Resolution 108, section 3 1, recognizes the obligations of the three powers, of the Public Ministry, and of the Public Defense in making the international commitments assumed by the Brazilian States, especially in regards to the international recommendations, be met 2. Within the approved motions, sections 1 3 and 3 pointed out, respectively, the need to follow through with the international recommendations directed at the Brazilian State, which are highlighted in the UN s documents on the 11 th NHRC; and the need to internationally monitor the systematic of recognition, incorporation and effectiveness of the Human Rights agenda on three powers, of the Public Ministry and of the Public Defense 4, which integrated the NHRP III- National Human Rights Plan- Plano Nacional de Direitos Humanos. In synthesis, the UN's recommendations are introduced as a base of actions of human rights in the country, as is proposed in the NHRP III, which is still in discussion in Brazil. 1 Pacto Federativo e a responsabilidade dos três Poderes, do Ministério Público e da Defensoria Pública. 2 For other observations on the results of the activity, see material on the 11th National Human Rights Conference. Available at: Accessed on 23/03/ Universalizar Direitos em um Contexto de Desigualdades. 4 See footnote #4.

8 monitoramento das :: Methodological Notes :: The present work corresponds to the first step in monitoring- getting to know the content of the UN s recommendations to Brazil. It is in this manner that the partial results of the systematization present themselves. The results were achieved by a methodological study of the recommendations, which can be applied to the universe of observations, and were sent to Brazil by The Committee of the Treated and the Special Mechanisms of the UN (Special Rapporteurs and the UPR). The DHI assembled directives for the systematization of the recommendations based on the recommendations of the UN's conventional and extra-conventional branches over the last few years. Then, based on the availability of resources and institutional activities, they elected for a smaller period and a smaller number of documents. We consider the starting point to be the re-democratization period of the Brazilian State in 1988, but, more specifically, the first analysis of the Brazilian State by the Human Rights Committee in This year stayed marked by the presentation of the first recommendations in the period of activity of the Constitution of A methodology of one by one was instituted in accounting for the recommendations. This means that each paragraph inserted in the recommendation section of the Special Reporters and the Committee of the Treated was considered as being one recommendation. This methodology is important because the mechanisms of the global system do not reflect a unified methodology of the production of the recommendations. However, in specific reports, such as the Right to Food report, whose recommendations are clustered in a single paragraph yet subdivided into diverse paragraphs, we count the recommendations as subitems of the paragraph (though keeping the intent to take into consideration the content of 5 In 1996, the UN presented Brazil with recommendations from three different sources: Human Rights Committee (CCPR/C/79/Add.66), Committee on the Elimination of Racial Discrimination (CERD/C/304/Add.11), and Special Rapporteur on Racial Discrimination, Xenophobia and Related Intolerance (E/CN.4/1996/72/Add.1).

9 monitoramento das the form). It is important to mention that a recommendation does not simply represent an action to be implemented by the Brazilian State. There were 467 recommendations 6 addressed to Brazil between 1996 and January 2010, and 81 7 of the recommendations formulated in reports between 2005 and 2009 were evaluated. This means a more minute and detailed understanding of the following UN branches: Human Rights Committee -HRC (2005), Special Rapporteur on the Independence of Judges and Lawyers -RIJ (2005), Representative on the Situation of Human Rights Defenders -REDDH (2006), Special Rapporteur on the Extrajudicial, Summary, or Arbitrary Executions -SRESAE(2008), and the Universal Periodic Review -UPR(2008) 8. The DHI s systematization, carried out from , concentrated on those five specific documents and UN agencies, as they related to GAJOP's main institutional subjects: security and justice, and the work of the DHI/GAJOP to contribute to the elaboration of these recommendations sending information to and accompanying the mission of the Reporters, as well as participating in the collaboration with others partners for the Universal Periodic Review (UPR) 9. Of the 206 recommendations addressed to Brazil by the conventional and extraconventional mechanisms (between 2005 and 2009), 81 were evaluated, a number that represents the sum of the five informants afore mentioned. These 81 recommendations correspond to merely 39.3% of the total recommendations addressed to Brazil from , showing that there is still information to be systematized. The 206 recommendations represent 44.1% of the total recommendations addressed to Brazil from , 6 Total recommendations identified up till March Of these 81 recommendations, 3 were not systemized (Even if they were counted as belonging to the universe of the chosen recommendations), as they were labeled "endnotes", presented at the end of the Human Rights Committee s chapter on recommendations. These recommendations were not systemized because, they function much more as an orientation for channels in the Committee than as a prescription for social change in the country. These recommendations indicate the report delivery date and correlating questions. 8 The year indicated refers to the year of publication of the UN recommendations, generally the visit was carried out in the previous year. More information about the visits are in the annexed chart-summary. 9 For more information on this process of communication with the UN about the UPR, see Accessed on 25/03/2010.

10 monitoramento das indicating the study of 17.3% of the UN s recommendations. From these numbers, one can see the importance of the continuity of the systematization. The systematization implies the de-fragmentation of the recommendations with regards to classification by the following articles: types of suggested action, recipients, and theme and subtheme. These articles will be explained within the presentation of the results. Two groups emerge from the systematization: a first group characterized as quantitative and objective (types of suggested action, express recipients, and recipients perceived), and a second group of given valor, which is open to new classifications (theme and subtheme) and is conditioned to the context of the studied information. To clarify, this division shows that during the systematization, some elements could be extracted right away, but others could only be perceived by an interpretive eye, a supplementation restricted to the latent facts of the recommendations. In other words, the given valor does not signify the insertion of a foreign body in the content of the recommendations, but rather the extraction of implied and latent elements. Without these elements, it would be impossible to clarify the objective of a recommendation. The presentation of the systematization exposes the facts based on the classification of the recommendations, which enables a general comparison that perceives convergences and notable divergences, without need for a deeper understanding. This emphasizes the first phase of systematization, of getting a better understanding of international recommendations. The second classification group is based on the evaluation of the studied agencies in order to arrive at the real content of the recommendations (theme and subtheme). This allows for a deeper understanding of the work and an approach of evaluated mechanisms, in spite of being restricted to comparing contents (though no common model exists) and evaluating recommendations according to a specific context. Throughout this document, the recommendations will have the number of the paragraph from the official UN document as a reference, not the number of the recommendations expressed by the researched mechanisms. And an acronym will be presented, attributed to the name of the mechanism that expressed the recommendations

11 monitoramento das HRC, RIJ, REDDH, SRESAE and UPR 10,as will the year of publication of the UN s documents. The recommendations, in its entirety, can be consulted in the enclosed document. 10 Of the five analyzed mechanisms, the abbreviations HRC e UPR are the only ones currently in use by the UN.

12 monitoramento das :: Universe of Recommendations:: The recommendations are extremely relevant to the creation of public policies and the development of favorable actions for the prevention and effectiveness of their practice. They are used by international organizations to emit suggestion or propose measures of different natures to a determined state, aiming at perfecting the effectiveness of human rights. In the scope of the UN, two mechanisms exist with the intent of formulating recommendations to the states. They are the conventional (Committee of the Treated) and the extra-conventional (Special Rapporteurs and UPR) mechanisms. These committees are established by international human rights treaties with the purpose of overseeing their fulfillment on behalf of the states that ratified them. The recommendations presented by the Committees -a.k.a final observations- seek to guarantee respect for, and monitor the commitments established by a specific treaty. From , six committees, under the analysis of periodic reports, presented a total of 235 recommendations to Brazil. These committees built their recommendations by evaluating information presented by the States, which are generally required every four years. During the meetings, aside from relaying the situation of the implementation of their agreed conventions, the States also answer a list of inquiries made by the committees. Through this process, the civil society can present an evaluation of the effectiveness of the international commitments. In regards to the extra-conventional mechanisms, the recommendations directed at the State are the result of in loco missions. These are performed by Special Reporters, experts whose objective is to observe human rights situations in specific countries. Through interactions with local authorities and human rights violations victims, these Reporters generate recommendations aiming to fight human rights violations. Each recommendation

13 monitoramento das reflects the human rights configuration of each nation, taking into account the varying specificities and idiosyncrasies. From 1996 to 2010, eleven Special Reporters and representatives of the old Human Rights Commission, the current Human Rights Council, visited Brazil and presented a total of 217 recommendations. In 2008, Brazil passed, through the Universal Periodic Review (UPR), a more recent procedure of the UN s Human Rights Council. In this special mechanism, the recommendations are submitted to the States by representatives of other States, guaranteeing a reciprocal stimulus to the effectiveness of human rights. There were 15 recommendations addressed to Brazil. There are a total of 467 recommendations directed at Brazil from the United Nations. Although they have similar content, their approach to human rights questions differs in form and depth. This is accounted for by the fact that the recommendations come from different agencies, all of which have distinct methodologies and approaches. CESCR: Committee on Economic, Social, and Cultural Rights CAT: Committee against Torture CERD: Committee on the Elimination of Racial Discrimination CRC: Convention on the Rights of a Child HRC: Human Rights Committee CEDAW: Committee on the Elimination of Discrimination against Women

14 monitoramento das SRVAW: Special Rapporteur on Violence against Women, its Causes and Consequences CAT: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment SRRF: Special Rapporteur on the Right to Food SRESAE: Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions CRC-SC: Special Rapporteur on the Sale of Children, Child Prostitution, and Child Pornography SRRAH: Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-discrimination in this Context RIJ: Special Rapporteur on the Independence of Judges and Lawyers RERAC: Special Rapporteur on Racism, Racial Discrimination, Xenophobia, and Related Intolerance REDDH: Special Rapporteur on Human Rights Defenders RPI: Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples UPR: Universal Periodic Review The Committees and Rapporteurs differ in the methodology of the construction of the recommendations, for they differ in their basic procedures. It is important to mention that in the reading of the recommendations, it become clear that the Rapporteurs do not follow the same pattern of construction as the recommendations, whereas the Committees are more meticulous in the methodologies used in composing the final recommendations. The tendency is that the Reports should try to implement a bigger standardization, especially regarding the SMART method 11. This method is in agreement with the document released in 11 SMART Method is applied to offer a better level of effectiveness to the recommendations. It means: S Specific; M Measurable; A Achievable; R Results-Oriented; T Time-Bond.

15 monitoramento das the annual Special Reporters meeting in 2008 (Manual of Operation of the Special Procedures of the Human Rights Council 12 ). The annexed chart-summary lists the occasions in which the Committee of the Treated and the Special Mechanisms presented recommendations to Brazil. The chart is organized to show the dates of visits and publication of reports with recommendations, the number of recommendations by document, and the links to the documents in their original languages and their available translations. The translation of documents is one of the problems in monitoring the recommendations addressed to Brazil. This shows how little access the State has to their own recommendations, especially when seeking documents by source or chronological order. The internal disclosure of recommendations is a common observation of the UN. Thus, there are very few documents in Portuguese with official translations. Some of the translations were performed by GAJOP s DHI, but the majority was translated by properly cited entities, guaranteeing the credit of the translator and integrity of the translation, without alterations. The annexed chart-summary will collaborate with other researches, systematizations, and monitoring of documents that have yet to be studied. 12 See Accessed on 08/04/2010.

16 monitoramento das :: Partial Results of Systematization:: :: Types of Suggested Actions:: The type of suggested action is the category of the action or conduct recommended by the UN to the State, and even other international bodies. Because of this, a recommendation cannot be restricted to an action and must, therefore, be classified by categories. After a general reading of all the UN recommendation directed at Brazil, there appear to be nine categories of suggested conduct. 78 Recommendation from five UN documents were evaluated. They suggest 98 actions to Brazil, considering that some recommendations propose 2 or 3 actions. Through the perceived categories, called SA (Suggested Actions), it becomes clear that: HRC: Human Rights Committee RIJ: Special Rapporteur on the Independence of Judges and Lawyers REDDH: Special Rapporteur on Human Rights Defenders RESAE: Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions RPU: Universal Periodic Review SA1. Develop and implement public policies or plans/ Adopt new public policies: When the recommendation is the adoption of new public policies 13, it is meant to direct 13 Originating from the following concept: Public policy is "the assembly of collective actions returned in order to guarantee social rights, configure a public commitment which will take care of the determined requirements

17 monitoramento das public officials in decision making or in implementing measures in order to achieve a common good. Critical observance of public commitments. There were three actions classified as SA1: HRC [Recommendation 19] and REDDH [Recommendations 103 and 104]. SA2. Intensify pre-existing public policies or programs: The recommendations also refer to actions already underway in Brazil. Therefore, SA2 serves to evaluate and improve these policies and programs. There were eight actions classified as AS2: HRC [Recommendations 14 and 15], UPR [Recommendations 83.1, 83.4, 83.8, e 83.12], and SRESAE [Recommendation 94]. SA3. Adopt or modify the legal framework: This recommendation aims to institute new legislations or cause legislative change. Ten actions were classified as SA3: HRC [Recommendations 9, 11, and 14], RIJ [Recommendations 103 and 105], REDDH [Recommendation 101], SRESAE [Recommendations 80, 95, and 96], and UPR [Recommendation 83.10]. SA4. Implementing legislation: The recommendations indicate situations that not directly related to new legislations or public policy. They require actions predetermined by current Brazilian law. There are six actions classified as SA4: HRC [Recommendations 6 and 13], RIJ [Recommendations 104 and 113], SRESAE [Recommendation 98], and UPR [Recommendation 83.9]. SA5. Adopt administrative or managerial measures: Measures (which do not adopt public policy or law) which aim to prevent or solve problems indicated in the recommendations. Positive measures for preventing and solving specific problems design a set of concrete actions to be taken by public agents in order to surpass the difficulties of the full achievements of human rights. The recommendation suggests an improvement of the interpretation of the law or specific means of modifying the operation of an agency, for example. There are forty-eight actions classified as SA5: HRC [Recommendations 5, 6, 7, 8, 10, 11, 12, 16 and 17], RIJ [Recommendations 103, 104, 108, 109, 110, 111, 112, 114 and in diverse areas. Expresses the transformation of that which is of a private scope in the collective actions of the public space"(guareschi, Comunello, Nardini & Hoenisch, 2004, p. 180).

18 monitoramento das 115,; REDDH [Recommendations 101, 102, 105, 107 and 108], SRESAE [Recommendations 78, 79, 81, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 97, 98 and 99], and UPR [Recommendations 83.2, 83.3, 83.5, 83.6, 83.7, 83.8, and 83.14]. SA6. Investigate cases of human rights violations, prosecute those responsible, and provide aid to the victims: Assures the proactive actions of authorities responsible for the civil and criminal processing of human rights offenders. The results of previous human rights violations compose a set of repair measures to be adopted by the State. These measures use more efficient and available means to return the state to its previous condition, before the violations. Therefore, it draws on appropriate and proportionate means through symbolic compensation, material or moral. There are seven actions classified as SA6: HRC [Recommendations 12, 14, 15, 17 and 18], REDDH [Recommendation 106], and SRESAE [Recommendation 82]. SA7. Disseminate, disclose, and raise awareness of human rights: Education of human rights, through the presentation of recommendations, for both those who operate the law and for numerous social activists. The education is a relaying of the recommendations contents, as well as a support base for its use as an instrument in the establishment of rights. There were six actions identified as SA7: HRC [Recommendations 7, 11, and 19], RIJ [Recommendation 108], REDDH [Recommendation 103], and SRESAE [Recommendation 100]. SA8. The State s public position: Collection of the State s formal statement regarding some specific fact or theme. The State may acknowledge responsibility for a specific act, historical fact, or position by changing the paradigm of its actions. This is only indicated by the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions [Recommendation 77]; this classification may be applied to other recommendations pending evaluations. SA9. Cooperate with agencies and international mechanisms in order to promote and protect human rights: The recommendations reinforce reports and observations of other UN mechanisms. They may even indicate the visit of another expert if the UN correspondent sees the situation in a country as integrating the mandate of another Rapporteur. There were nine actions identified as SA9: HRC [Recommendations 5, 12 and

19 monitoramento das 20]; RIJ [Recommendations 106, 107 and 116], SRESAE [Recommendation 100], and UPR [Recommendations 83.6 and 83.15].

20 monitoramento das :: Recipients:: The recipients are the entities or public agencies legally responsible for the materialization of the recommendations. Upon evaluating the recommendations, one finds that some observations are directed at a specific agency while others are directed at the federal or state governments, with no mention of a specific agency to execute the actions. Some are even directed at the Brazilian State in a very generic way. This third kind of recommendation happens because, on the international level, the internal divisions of competence do not interfere with the State s responsibilities regarding the violation of human rights. The works of the Committee of the Treated and the Universal Periodic Review show many generic recommendations regarding the recipients. When compared to the UN s Special Rapporteurs, these mechanisms illustrate different procedures and work methodologies, as was previously mentioned in this document. For example, the Human Right s Committee s recommendations (HRC 2005) do not identify their recipients. This is because the Committee itself monitors all of their final observations, as they are all directed at the States part of the International Covenant on Civil and Political Rights. Of the total 19 (nineteen) recommendations presented in 2005, every single one indicated, in general terms, the Brazilian State as the one responsible for their implementation. The same applies to the UPR s recommendations. Of the 15 recommendations directed to Brazil, only two explicitly mention the civilian and military police 14 [Recomendação 4] and the national congress [Recommendation 100]. Considering the Brazilian federalist structure s divisions of competence, it remains up to the State and to the civil society to deepen the relations of competence and raise the responsibility of the national institutions. The systematization proposes classifying the recipients of the recommendations as express recipients and perceived recipients. The express recipient is the explicitly identified entity in a recommendation which is responsible for its implementation or fulfillment; this 14 The Translation indicates polícias estaduais e militares, which means the state and military police force. In Brazil, this represents the civilian and military police forces.