Brasília, February 24, 2021 - On February 24, 2015, pre-trial detention hearings were launched in the country in a project coordinated by the National Council of Justice (CNJ) with wide adherence of all federal units. The practice complied with the regulation internalized by Brazil 23 years ago, which provides for the presentation of the person arrested to a judge in the shortest possible time. Six years later, the results confirm that the practice has created new flows in the criminal justice system, contributing to a 10% reduction in the rate of provisional detainees in the country.
Until 2015, Brazilian judges analyzed paper documents to decide whether the person arrested by the police should await trial in custody or at liberty. Since the custody hearings, the in-person hearing with the presence of the Public Prosecutor's Office and the defense (Public Defender or lawyer) has allowed judges to have more information about the circumstances under which the arrest was made. The institute has contributed to an even greater alignment between decisions and Brazilian legislation, especially in cases of less offensive potential, as well as the identification of any cases of violence at the time of arrest.
"The custody hearing prevents the imprisonment of people who could respond in freedom or with other precautionary measures other than prison, especially considering the unconstitutional state of things already pointed out by the Federal Supreme Court (STF) for the prison system in the country. The CNJ has been betting on this important institute to qualify the gateway to the prison system and strengthening, on this path, other important measures, such as alternative sentencing and electronic monitoring," said CNJ Secretary General Valter Shuenquener de Araújo.
In six years, more than 750,000 pre-trial detention hearings have already been held, with at least 2,000 magistrates throughout the country working exclusively or with shifts on weekends and holidays, depending on the rule adopted by each court. There is also the work of thousands of professionals from the justice system and public security forces, essential to ensure the correct functioning of the flow.
"The visible impacts and the great adhesion all over the country, with continuous expansion and qualification, reinforce the correctness of this judicial policy. The CNJ is always concerned with improving important institutes, supporting the judiciary in the correct and fast provision of justice. This principle is reflected in the constant evolution of custody hearings, already established in the Judiciary", said Mário Guerreiro, supervisory councilor of the Department for Monitoring and Supervision of the Prison System and the System for Enforcement of Social and Educational Measures (DMF/CNJ).
Impacts
Before the introduction of custody hearings, Brazil had one of the highest rates of provisional imprisonment in the world (40%), with about 250 thousand people in prison awaiting trial. This reality had legal implications, since the Brazilian Constitution states that prison is the last resort and that no one shall be considered guilty until a final judgment, but also a high cost to the public coffers, considering the national average of R$ 3 thousand spent monthly for each person arrested. It also aggravated the occupation deficit, since new vacancies were not created at the same speed as the increase in the prison population, contributing to an overcrowding of about 170%.
"By fostering a better functioning of the justice system, pre-trial dentention hearings end up interfering in the rate of provisional arrests by providing the judge with more elements for the application of precautionary measures provided for in Brazilian law, in cases where they apply," assesses DMF coordinator, Judge Luís Lanfredi. "There are several studies proving that many people arrested provisionally would not even be sentenced to prison later, which further highlights the importance of the judiciary's special attention to this point," he adds.
In the first year of operation alone, 40 thousand people were prevented from entering the system, with a saving to the public coffers of around R$ 4 billion. Six years later, 250 thousand people were released in custody hearings, a rate that represents 31% of all hearings held.
Improvement
Since 2019, the qualification and expansion of pre-trial detention hearings in a way aligned with policies on criminal alternatives and electronic monitoring is one of the themes worked on by the CNJ in partnership with the United Nations Development Programme (UNDP) and support from the Ministry of Justice and Public Security, currently the "Fazendo Justiça" programme. The actions on pre-detention hearings are carried out in partnership with UNODC.
Among the actions developed are the improvement of local routines and flows with the support of technicians sent to all units of the federation, including in the field of social protection; the elaboration of technical knowledge products; the fostering of networks of judges for high studies; as well as events, training and international dissemination of the Brazilian experience.
"The qualification of the discussion and the offer of support tools to the actors involved collaborate with the strengthening of the decision-making processes about the deprivation of liberty, always aiming to guarantee the rights of the human person, besides contributing to the promotion of more peaceful, fair and inclusive societies. The actions of the "Fazendo Justiça" programme in strengthening the pre-trial detention hearings represent an important advance in this sense", said the coordinator of the Peace and Democratic Governance Unit of UNDP, Moema Freire.
For the coordinator of UNODC's Rule of Law Unit, Nívio Nascimento, the strengthening of pre-trial detention hearings has provided the optimization of legal flows and procedures, social protection and data collection. "The impacts and results can be seen in the expansion of social service teams to the person in custody in several Federative Units and in the qualification of flows for access to the precautionary examination report, whose major result is the identification and restraint of torture and mistreatment during the arrest in flagrante delicto. Other advances can be observed in the actions for the adequacy of architectural spaces and in the construction of biosecurity protocols for the safe conduct of in-person custody hearings."
Advances
Starting in March, the CNJ, with the support of "Fazendo Justiça", will hold a series of events aimed at the judiciary and the technical teams that work with custody, fostering the High Studies in Pre-trial Detention Hearings Network. Two national events and at least ten regional events are expected to take place. The meetings will focus on the dissemination of the manuals launched in 2020, which will receive executive summaries with versions translated into English and Spanish. The CNJ will participate in international events to present the good practices developed in Brazil.
It will also continue to support the expansion of the Service for Attending to Persons in Custody (Apec). The initiative bets not only on expanding the supply of services focused on social protection, already offered in some states in different formats, but on adopting parameters that qualify the service by encouraging networking and a restorative approach, articulating access to services aimed at care, citizenship and social inclusion.
Ten federal states already offer universal pre-custody hearing services (AC, ES, MA, MS, MT, PA, PI, PR, RR and SE). At this stage, a multidisciplinary team identifies the immediate needs of the person arrested, such as contact with family, documentation, work and income. Based on this information, a report is elaborated to help the magistrate analyze whether or not to maintain the person in flagrante delicto, and also points out referrals to situations of vulnerability that have been identified.
The post-custody hearing service, on the other hand, aims to help forward the person in custody, such as explaining the procedures related to precautionary measures determined by the judge or information about access to public policies. It is already present in 17 Federative Units (AL, AM, BA, CE, DF, ES, MG, MT, MS, PA, PE, PI, PR, RJ, RN, RR and SE), and the states of Amapá, Paraíba, Rio Grande do Sul, as well as the Federal Regional Court of the 3rd Region, in the subsection of Guarulhos, are also at an advanced stage of implementation of the Apec service.
Hearings during the pandemic
With the outbreak of the Covid-19 pandemic in Brazil in March 2020, several courts chose to suspend custody hearings following CNJ Recommendation 62/2020, but activities are gradually being resumed in the face-to-face mode, due to the very purpose of the institute. Nine courts of justice (DF, ES, GO, MS, PA, RR, RJ, SE and PR) have already resumed face-to-face custody hearings, respecting safety protocols, such as the installation of transparent partitions between the actors in the hearing, the mandatory use of masks and temperature measurements of the participants.
For the courts that still have suspended in-person custody hearings, the CNJ has, since the beginning of the pandemic, provided a platform for registration and analysis of Notices of Arrest in Flagrante (APF). The online form, to be filled out by the courts, has a structure similar to the information gathered by the Custody Hearing System (Sistac), managed by the CNJ since 2015. Over the period, more than 175,000 decisions were recorded in the system.
The pandemic caused by the coronavirus also highlighted the importance of architecture for the health safety of environments, leading the CNJ to collaborate with the courts in adapting rooms where custody hearings and other related spaces are held. In addition to ventilation criteria, the initiative takes into account other important aspects, such as spaces for social and health care, rooms reserved for contact with the defense and space for body examination and civil and biometric identification.
Six states are already discussing with the Council for the delivery of projects developed in partnership with local teams (CE, PI, AM, AP, MS and PR). The forecast is that the projects for the 27 Courts of Justice are ready by the end of the year.
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