Less Procedural Guarantees in the Brazilian Criminal system leaves black people more exposed to human rights violations
Carolina Calzolari Antonio and Veronica Delgado, GHRD, May 2021
On January 19, 2021, Brazilian social movements, organizations and institutions submitted an appeal before the Inter-American Commission on Human Rights as several human rights violations have happened since the National Conseil of Justice (CNJ) approved Resolution no. 357/2020 (Agenda Nacional Pelo Desencarceramento, ABL, & al, 2021). Through the Resolution, custody hearings can be held by video conference, losing their primary purpose to prevent ill-treatment and torture.
In an interview conducted by Global Human Rights Defence with the Public Defender of the State of Rio de Janeiro, Mariana Castro de Matos expressed:
‘So, in a scenario of video conference custody hearings, in fact, what one could have would be incorrect responses from people saying that they did not suffer any kind of torture when that does not correspond to reality.
They only said no because they were afraid to file a complaint. And then there would be a false feeling that there is no torture being practised when it didn’t actually happen.‘
Custody Hearings in Brazil
When someone is arrested in Brazil, they have to be presented before a judge for the custody hearing procedure. This measure was established by Resolution 213/2015 and then incorporated within the Brazilian Code of Criminal Procedure (Art. 297 and 310). In this short hearing, members of the Public Prosecutor’s Office, the Public Defender’s Office, or the lawyer of the person arrested are heard. (CNJ, s.d.). The judges analyze the legality, necessity, and adequacy of the prison or grants the freedom, but most importantly, they examine the occurrence of torture or ill-treatment, among other violations of human rights. (CNJ, s.d.).
In November of 2020, the National Council of Justice in Brazil (CNJ) approved Resolution No. 357/2020 through custody hearings can be held by videoconference due to the pandemic. The rule modifies CNJ Resolution No. 329/2020, which, in article 19, restricted the use of the resource for custody hearings, and expressly forbidden to carry out hearings by videoconference.
In the interview with Mariana Castro de Matos, she stated that when participating in custody hearings by video call, people can be easily afraid of reporting torture or ill-treatment that they suffered for being scared of aggressors’ presence enclosure or behind the doors. Therefore, people do not feel safe to report torture and ill-treatment because of the fear of reprisals when the camera is turned off. Mariana shared some stories highlighting the importance of the custody hearing in person. One of them was the case in Campos dos Goytacazes, after the return of custody hearings in person in Rio Janeiro’s State.
According to the defender, a woman was conducted to a custody hearing, and when the judge asked if she had suffered any torture and ill-treatment, she said that she did not want to answer. Because of her body and facial expressions, the judge noticed that something was wrong. Therefore, he asked everyone in the room to leave, staying only the judge, the Public Defender, and the Prosecutor with the woman. The judge calmly explained the relevance of her testimony and her rights in that circumstances, assuring that no one would listen. Afterwards, the woman felt confident to express that she spent hours by herself with eight police officers at her place, threatening and assaulting her, asking to provide information about the operation of the local drug trafficking.
‘Would this woman have had the same courage to formulate this complaint to authorities on the other side of a computer screen?‘ asked the Public Defender while sharing the story.
It is worth noting that the Inter-American Court on Human Rights has expressed in many case law the importance of custody hearings for the protection of the population deprived of liberty against abuses by administrative or police authorities. The Court has highlighted that “the detainee must appear in person and make a statement before the judge or competent authority” (Caso Lopez Alvarez vs Honduras, 2006, para 87) to satisfy the guarantees established in Article 5 and 7 related to the right to human treatment and the right to personal liberty.
At the international and regional level, Brazil has ratified several international treaties addressed to guarantee the right to human treatment and liberty and security. One includes the prohibition against torture, which has strengthened the obligation of the authorities to guarantee the rights of the detainees and the prohibition of acts of torture during the criminal process. The International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture, the American Convention on Human Rights, and the Inter-American Convention to Prevent and Punish Torture are part of the binding instruments. Besides that, soft law has also played an important role, as it has established standards and principles that Brazil should observe. The Istanbul Protocol, the UN Principles of Medical Ethics, and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment have highlighted the prohibition against torture and other cruel, inhuman, or degrading treatment.
The general profile of people in the pre-trial custody hearings
As shown in the official figures, are black people, particularly with very low schooling and from peripheral regions, are disproportionately tried in custody hearings. According to the research carried out by the Defensoria Pública do Estado do Rio de Janeiro between September 2017 and September 2019, 77.4% of the people presented in the hearings were black people (Defensoria Pública Do Estado Do Rio de Janeiro, 2020).
Besides, in the report The end of freedom: The urgency to regain meaning and effectiveness of custody hearings published by the Instituto de Defesa do Direito de Defesa (IDDD) and the CNJ, the trend of the previous research was confirmed (IDDD, 2019).
The Brazilian criminal system is widely considered by for perpetuating structural racism in the country, which continues to increase in the past few years (Miranda, 2020). According to the Depen (National Penitentiary Department), 67% of Brazil’s prison population is black and brown. Besides, black people are the ones who die the most from homicides. According to the 2020 Atlas of Violence, the homicide rate of black people in Brazil grew by 11.5% between 2008 and 2018 (Violência, 2020). Therefore, pre-trial procedures such as custody hearings are essential tools to guarantee black people a fair trial, protecting them from becoming victims of the criminal judicial system. Restrictions from Covid-19 have further exacerbated this issue, such as the switch to video conferences, rather than a live audience in hearings (Desencarceramento, ABL, & al, 2021, p.12).
What is happening right now?
Public Defender, Mariana Castro de Matos explained that during the period that the custody hearings were suspended in the State of Rio de Janeiro, only 1% of the cases contained information about the occurrence of torture. However; the Defender’s Office of Rio de Janeiro has a survey gathering data from September 2017 to September 2019, demonstrating that about 40% of cases presented in a custody hearing have reported torture.
‘In other words, there was obviously no fall in the practice of torture over that period of the pandemic; what happened was that the information simply didn’t reach us.‘ explained Mariana Castro de Matos
The use of video conferences go against the guarantee of protection of people, especially the most vulnerable. As was mentioned in the appeal submitted before the IACHR
“The hearing by such means would make it impossible to inspect any intimidation or coercion that the person in custody can be suffering so as not to report any situation of abuse or violence suffered.” (Agenda Nacional pelo Desencarceramento, ABL, & al, 2021, p. 17).
Addressing the custody heading by video conferencing does not allow the judge to identify any signs indicating the occurrence of torture and other cruel, inhuman, or degrading treatment. The judge can not identify a potentially hostile environment, considering that the detainee is surrounded by the agents who carried out the arrest in most cases. Therefore, the authorities must be facing the people arrested before they are sent to prison at the custody hearing. These hearings play a crucial role in preventing and investigating cases of police torture, arbitrary and illegal arrests.
Caso Lopez Alvarez vs. Honduras (IACtHR February 1, 2006).
Defensoria Pública Do Estado Do Rio de Janeiro, D. d. (2020). Perfil dos entrevistados pela Defensoria Pública do Rio de Janeiro nas audiências de custódia entre setembro de 2017 e setembro de 2019. Obtenido de https://defensoria.rj.def.br/uploads/arquivos/0b6d8d161c1b41739e7fc20cca0c1e39.pdf
Desencarceramento, A. N., ABL, A. B., & al, e. (19 de January de 2021). [APELO URGENTE] Realização de audiências de custódia por videoconferência durante a pandemia de COVID-19. Brazil.
IDDD, I. D. (August de 2019). O FIM DA LIBERDADE A urgência de recuperar o sentido e a efetividade das audiências de custódia. Obtenido de https://iddd.org.br/wp-content/uploads/2020/07/SumExecutivo_web_simples.pdf
Justiça, C. N. (s.f.). Audiência de custódia poderá ser feita por videoconferência na pandemia. Obtenido de Conselho Nacional de Justiça : https://www.cnj.jus.br/audiencia-de-custodia-podera-ser-feita-por-videoconferencia-na-pandemia/
UN Human Rights Committee, H. (14 de December de 2016). General comment no. 35, Article 9 (Liberty and security of person). Obtenido de https://www.refworld.org/docid/553e0f984.html
Violência, A. d. (2020). Atlas da Violência . Obtenido de https://forumseguranca.org.br/wp-content/uploads/2020/08/atlas-da-violencia-2020.pdf