Global Human Rights Defence

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).  

Graph 1:    

    

Graph 2:

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.     

References:

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

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Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
(Europe)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
(Africa)

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.