The Brazilian Constitution provides several principles for the protection of human rights. Many federal laws can be used to combat human trafficking, including the Penal Code, the Alien’s Statute, and the Child and Adolescent Statute. Brazil has also incorporated into its domestic legislation the United Nations Convention Against Transnational Organized Crime; the Protocol Against the Smuggling of Migrants by Land, Sea and Air; and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
A decree enacted in 2006 approved a national policy to establish principles, guidelines, and actions to prevent and suppress human trafficking and provide assistance to victims, and also created the First National Plan to Combat Human Trafficking. This plan, covering the period of 2008–2010, established the priorities of the national policy, which included setting short-, medium-, and long-term goals, and defining the bodies and entities partnering to achieve these goals.
The Second National Plan to Combat Human Trafficking, covering the period of 2013–2106, proposed the preparation and implementation of a National Training Matrix, which is a technical reference manual for the preparation of organized, integrated, and continuous actions designed to combat human trafficking and training courses for personnel involved in combating human trafficking.
I. Legal Framework
A. Constitutional Principle
The Brazilian Constitution establishes human dignity as one of the fundamental principles of the country. Similarly, a fundamental constitutional principle governing Brazil’s international relations is that human rights must “prevail” in Brazil’s relations with other countries. The Constitution also states that all Brazilians and resident foreigners are equal under the law, and guarantees their inviolable right to life, liberty, equality, security, and property. Brazil’s Constitution further protects against torture and inhuman or degrading treatment, providing that the law must severely punish those who abuse, perpetrate violence against, and sexually exploit children and adolescents. The Constitution thus makes clear that Brazilians and foreigners residing in the country should be protected against the degradations of human trafficking.
B. Penal Code
The Brazilian Penal Code defines and punishes with imprisonment and fines many acts that may be associated with human trafficking, including, but not limited to,
- depriving persons of their freedom through kidnapping or false imprisonment;
- reducing persons to a condition analogous to slavery, either by submitting them to hard labor or exhausting journeys, or subjecting them to degrading working conditions, or restricting, by any means, their movement because of a debt contracted with the employer or agent;
- recruiting workers by fraud in order to take them to a foreign country;
- enticing workers, in order to take them from one place to another within the national territory, by fraud, by demanding the payment of their debt, or without guaranteeing the conditions for their return to their place of origin;
- promoting or facilitating the entry of persons into the national territory to practice prostitution or other forms of sexual exploitation, or the departure of persons to practice prostitution abroad;
- negotiating, enticing, or purchasing trafficked persons and transporting, transferring, or harboring them while being aware of their condition;
- promoting or facilitating the movement of persons within the country for prostitution or other forms of sexual exploitation;
- negotiating, enticing, selling, or purchasing trafficked persons and transporting, transferring, or harboring them while being aware of their condition;
- delivering children under eighteen years of age to persons in whose company the deliverer knows or should know that the minors are morally or materially in danger, with the punishment for such acts increased if the acts are performed for the sake of a profit or if the minors are sent abroad; and
- three or more persons associating for the purpose of committing crimes.
C. Alien’s Statute
The Alien’s Statute (Estatuto do Estrangeiro) defines the legal situation of aliens in Brazil and the punishments for particular acts that may be associated with human trafficking, such as transporting to Brazil aliens who do not have appropriate documentation, employing or keeping at a person’s service aliens who are in an irregular situation or who are not allowed to work in the country, and smuggling aliens into the country or hiding them in an illegal or irregular manner.
D. Child and Adolescent Statute
Many articles of the Child and Adolescent Statute (Estatuto da Criança e do Adolescente) may also apply to the fight against human trafficking. Article 82 prohibits the lodging of children or adolescents in hotels, motels, hostels, or similar places without authorization or the company of a parent or guardian. Article 83 determines that no child may travel outside the district where the child resides when not accompanied by a parent or guardian, without express judicial authorization (except in certain situations). Without prior judicial authorization, no child or adolescent born in the national territory may leave the country in the company of an alien who resides or is domiciled abroad.
The statute lists several crimes that may be associated with human trafficking and their respective punishments. These crimes include removing children or adolescents from those who are their custodians by reason of law or a court order in order to place them in a foster home, which is punishable by imprisonment for two to six years and a fine; promising to deliver or delivering a Brazilian child or adolescent or a protégé to a third party for money or a reward, which is punishable by imprisonment for one to four years and a fine; and offering or providing payment or a reward for such delivery, which is also punishable by imprisonment for one to four years and a fine.
The statute also punishes with up to six years in prison anyone promoting or helping in the process of sending a child or adolescent abroad illegally or for profit. If violence, a serious threat, or fraud is used, the punishment increases to up to eight years’ imprisonment plus the corresponding punishment for the violent acts.
E. United Nations Convention Against Transnational Organized Crime
On March 12, 2014, Brazil enacted Decree No. 5,015, which promulgated the United Nations Convention Against Transnational Organized Crime; Decree No. 5,016, which promulgated the Protocol Against the Smuggling of Migrants by Land, Sea and Air; and Decree No. 5,017, which promulgated the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Both Protocols supplement the United Nations Convention Against Transnational Organized Crime.
II. National Policy to Combat Human Trafficking
In an effort to curb trafficking in persons, on October 26, 2006, Brazil enacted Decree No. 5,948, which approved a National Policy to Combat Human Trafficking and established the Interministerial Working Group for the purpose of elaborating a proposal for a National Plan to Combat Human Trafficking. The purpose of the national policy is to establish principles, guidelines, and actions to prevent and suppress trafficking in persons and provide assistance to victims, in accordance with domestic and international human rights norms and Brazilian law.
The national policy adopts, inter alia, the expression “trafficking in persons,” which the Additional Protocol to the United Nations Convention Against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, defines as
the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or the situation of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs.
Article 3 of Decree No. 5,948 defines the guiding principles of the national policy, article 4 determines the general guidelines, and articles 5 to 7 establish specific guidelines.
To implement the national policy, Decree No. 5,948 determines, among other things, that it is the responsibility of the public bodies and entities, within their respective powers and conditions, to adopt the following judicial and public security measures:
a) provide initial humane care to victims of human trafficking who return to the country after being deported or not admitted at airports, ports and entry points on land routes;
b) prepare an intergovernmental proposal to improve Brazilian legislation addressing human trafficking and related crimes;
c) foster cooperation among federal, state and local public safety agencies to coordinate action to prevent and suppress trafficking in persons and hold perpetrators accountable;
d) propose and encourage the adoption of the theme of human trafficking and human rights in federal, state and municipal training curricula for public safety professionals and legal professionals who are admitted to such institutions and their continuous training thereafter to combat this type of crime;
e) strengthen existing budget items and create other items focused on the training of law enforcement professionals and justice professionals in the area of confronting human trafficking;
f) include in the specific structures of police intelligence the investigation and suppression of trafficking in persons;
g) create in the Regional Superintendence of the Federal Police and the Federal Highway Police specific structures to combat human trafficking and other crimes against human rights;
h) promote the interaction of public safety professionals and legal professionals with civil society;
i) enter into cooperation agreements with civil society organizations working to prevent human trafficking and assisting victims;
j) promote and encourage, on an ongoing basis, refresher courses on trafficking in persons, to members of the justice system and to public safety servants, preferably through their training institutions;
l) coordinate the various branches of the Public Prosecutor’s Office [Ministério Público] of the states and the federal government, the state and federal judiciary, and the organs of the justice and public security systems;
m) organize and integrate existing databases concerning the combating of human trafficking and related areas;
n) enter into technical cooperation agreements with public and private entities to support judicial and extrajudicial actions;
o) include the topic of trafficking in persons in courses on combating money laundering, trafficking in drugs and arms, and other related crimes;
p) develop at the national level mechanisms for preventing, investigating and prosecuting human trafficking perpetrated through the use of the Internet, and for consequently [holding] the perpetrators accountable; and
q) include the possible link between the disappearance of persons and human trafficking in research and police investigations.
Decree No. 5,948 further establishes actions to be taken in the areas of foreign relations, education, health, social assistance, the promotion of racial equality, labor, agricultural development, human rights, the protection and promotion of women’s rights, tourism, and culture.
III. National Plan to Combat Human Trafficking
A. First National Plan to Combat Human Trafficking
The First National Plan to Combat Human Trafficking was established by Decree No. 6,347, of January 8, 2008, to cover the period of 2008–2010. The plan was prepared by representatives of several federal agencies, nongovernmental organizations, and international organs. Its objective was to prevent and suppress human trafficking, prosecute perpetrators, and ensure assistance to victims, under the domestic legislation in force and international human rights instruments.
The priorities established by the plan were to
- collect, organize, prepare, and publish studies, research, information, and experience on human trafficking;
- train agents directly or indirectly involved with combating human trafficking [to approach the problem] from a human rights perspective;
- mobilize and sensitize specific groups and the community in general with regard to human trafficking;
- reduce the vulnerability of specific social groups to human trafficking;
- articulate, organize, and consolidate from existing services and networks a national reference system and a system for providing assistance to trafficking victims;
- improve the Brazilian legislation addressing human trafficking and related crimes;
- expand and improve knowledge about combating human trafficking among bodies involved in the suppression of crime and prosecution of the perpetrators;
- promote cooperation among federal, state, and municipal agencies involved in combating human trafficking in coordinating measures to suppress human trafficking and prosecute the perpetrators;
- create and improve tools for combating human trafficking;
- organize agencies in charge of combating human trafficking and prosecuting the perpetrators; and
- promote international cooperation in combating human trafficking.
B. Network to Combat Human Trafficking
As a result of the First National Plan, a Network to Combat Human Trafficking was created. The network is the generic name given to the collective institutional efforts of the different powers and levels of government in partnership with organs of civil society, research institutes, and international organizations to combat human trafficking in an articulated and decentralized manner.
The Network to Combat Human Trafficking consists of the Network of Centers to Combat Human Trafficking (Rede de Núcleos de Enfrentamento ao Tráfico de Pessoas), Outposts of Humane Care for Migrants (Postos Avançados de Atendimento Humanizado ao Migrante), and State Committees to Combat Human Trafficking (Comitês Estaduais de Enfrentamento ao Tráfico de Pessoas). These institutions are responsible for putting the principles of the National Policy to Combat Human Trafficking into practice in the states and municipalities.
On August 20, 2009, the National Secretary of Justice issued an Administrative Act (Portaria), which established the guidelines for the functioning of the centers and outposts. According to article 1 of the Administrative Act, the main function of the Network of Centers is to plan actions to combat human trafficking at the state level that are to be implemented in partnership with the federal government, through the National Secretariat of Justice and state governments. Article 2 of the Act defines the competence of the centers. Article 3 determines that the main function of the outposts is to receive nonadmitted or deported Brazilians at entry points, while article 4 defines the competence of the outposts.
C. Second National Plan and National Training Matrix to Combat Human Trafficking
On February 4, 2013, a new decree approved the Second National Plan to Combat Human Trafficking, to cover the period of 2013–2016. The purpose of the second plan is, among other things, to expand and improve the fight against human trafficking in a coordinated and interdependent manner among the bodies and agencies involved in the prevention and suppression of crime. Measures to be taken include presenting criminal charges against the perpetrators of human trafficking, caring for the victims, and protecting victims’ rights.
One of the proposals mentioned in the Second National Plan to Combat Human Trafficking makes reference to training guidelines, including the preparation and implementation of the National Training Matrix to Combat Human Trafficking (Matriz Nacional de Formação para o Enfrentamento ao Tráfico de Pessoas). The National Matrix is a technical reference manual for the preparation of organized, integrated, and continuous actions designed to combat human trafficking and training courses for agency personnel involved in combating human trafficking.
The political-pedagogical guidelines of the Matrix to Combat Human Trafficking are contextualized in a process of interdisciplinary and cross-learning programs oriented toward the development of cognitive, procedural, and personal skills.
Concerning cognitive skills, the training and education courses should promote recognizing the different human rights violations connected with human trafficking; understanding the concept of human trafficking; recognizing the modalities of human trafficking; identifying the differences between human trafficking, migrant smuggling, and irregular migration; and becoming familiar with the political, national, and international legal framework for combating human trafficking.
With regard to procedural skills, the courses should provide information on the measures available for combating human trafficking; explain the interrelationships of poverty, migration, illegal immigrant smuggling, human trafficking, sexual exploitation, and prostitution; and present measures to prevent and crack down on human trafficking.
As for personal skills, the courses must inculcate in agency personnel a commitment to tackling human trafficking, professional ethics, and the capability to act with balance and common sense.
The Matrix also details the modules and content for the training courses to combat human trafficking, which are divided into five areas: the ethical and conceptual dimension of human trafficking, human mobility and human trafficking, public policies and human trafficking, the criminal justice system and human trafficking, and the Network to Combat Human Trafficking and assistance and protection provided to victims.
Prepared by Eduardo Soares
Senior Foreign Law Specialist
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Last Updated: 03/18/2016