United Nations Office on Drugs and Crime

Liaison and Partnership Office (LPO) in Brazil

"Fazendo Justiça" Programme

An initiative of the National Council of Justice (CNJ) and the United Nations Development Programme (UNDP), the "Fazendo Justiça" programme also has the United Nations Office on Drugs and Crime (UNODC) partnership to strengthen the pre-trial detention hearings in all country. The participation of UNODC seeks to reduce the number of unnecessary prisons and the decongestion of the prison system, which operates at an occupancy rate of 197% according to 2016 data from the Ministry of Justice.

Context

Pre-trial Detention hearings were implemented as a national policy by the CNJ in 2015 (Resolution No. 213/2015) and consist of the presentation of the inmate in flagrante to a judge within 24 hours. After the hearing, the magistrate decides whether the custodian should respond to the arrest or release, and may also decide to annul the arrest in case of illegality. By placing the magistrate in contact with the custodian at the time of arrest, these hearings facilitate the verification of cases of torture and ill-treatment, which are generally poorly reported.

Despite the reduction in the conversion of flagrante delicto to pre-trial detention, which reached 90% in some Federation Units prior to the implementation of pre-trial detention hearings in Brazil, provisional detention is still adopted in most cases - including those that would not result in arrest after the sentence, about 18%. The most recent CNJ data on the subject indicate that of the 258 thousand pre-trial detention hearings held until July 2017, 44% resulted in provisional release and 55% in custody. In addition, pre-trial detention hearings were concentrated in the capitals and each state adopted its own mechanisms to systematize the practice.

The proposal of the  "Fazendo Justiça" programme is to strengthen the model disseminated by the CNJ and to sensitize actors in the justice and public security system, such as judges, prosecutors, public defenders and police to replace imprisonment with other more appropriate actions whenever possible, such as precautionary measures and electronic monitoring. In addition to reducing overcrowding, the measure seeks to avoid exposure of non-violent persons who have not even been sentenced to prisoners convicted of more serious crimes, including members of criminal factions.

The programme will also take action to address the excessive incarceration of women (which has grown dramatically in recent decades), drug traffickers and blacks. The intent is to combat the selectivity of the penal system observed in pre-trial detenion hearings and alternative measures.

The implementation of pre-trial detention hearings, provided by international treaties that Brazil is a signatory party– such as International Covenant on Civil and Political Rights, the Pact of San José, and International Convention for the Protection of All Persons from Enforced Disappearance - requires the presentation of the detained person to a judicial authority, within 24 hours. The judge must analyse the legality of the arrest and the possibility of applying precautionary measures, as well as document and adopt judicial and non-judicial proceedings about any evidence of torture or other cruel, inhuman, or degrading treatment by the police officers or other public agents.

Justification

Since the implementation of the Pre-Trial Detention Hearings in 2015, the Institute is surrounded by complexities, especially those related to its potential to release persons arrested in flagrante delicto by police institutions, in order to allow the Criminal Justice System more timely and qualitative information on the legality of prisons, as well as on the need to maintain preventive prisons. However, the figures found in the pre-trial detention hearings monitoring show that deprivation of liberty remains the predominant decision.

The update of the CNJ data dates from June 2017, and so far there had been 258,000 pre-trial detention hearings, of which 44% resulted in provisional liberties and 55% pretrial detention for the accused. Considering that the arrest must be an exceptional measure, it does not seem a reasonable scenario to have the provisional imprisonment of more than fifty percent of the people brought to the Hearings of Custody. Above all, if it is considered the chaotic moment of stocking, violations of rights and criminal assemblages that are consubstantiated in the Brazilian prison units, widely illustrated in surveys of official data and diverse researches (INFOPEN, 2016, INFOPEN Women, 2017, De VITTO and DAUFEMBACK, (1998), pp. 2018, PIMENTA, 2018, MANSO and DIAS, 2018, ISER, 2016, IDDD, 2016, ITTC, 2017).

Despite the strong linkage of the Brazilian criminal system to a patriarchal historical matrix, with its predominant clientele being men, the incarceration of women deserves mention due to its exponential growth in the last decade. The first national survey of penitentiary information with an exclusive focus on female incarceration (INFOPEN Women, 2014) drew attention to the upward curve of female incarceration in Brazil, even more pronounced than the imprisonment of men. In the period from 2000 to 2014, the increase in the female population in the prison system was 567.4%, while the average male growth in the same period was 220.20%. If in June 2014 there were 37,380 women in the prison system, the most recent national survey (INFOPEN Women, 2016) confirms the permanent ascendancy of female incarceration, since there are already 42,355 women arrested (also adding women detained in police stations). If in 2000 women represented 3.2% of the prison population, in 2016 they represented 5.8% of the total number of people incarcerated.

Deepening the analysis on the profile of women prisoners, we have around 62% of them have a criminal connection for involvement in drug trafficking (Law 11.343 / 2006), usually by unrelated (or indirectly related) practices to large networks of organizations criminals. Most of them occupy a supporting position in this type of crime, performing services of drug transport and small commerce; many are users, few of them carrying out traffic management activities. Crimes against the person (homicide) represent 6% of the cases of provisional conviction or imprisonment of women, while crimes against the patrimony amount to 22% of the cases, of which 9% are for theft crimes (INFOPEN / Women 2016).

In addition, a more comprehensive understanding of the problems and main challenges inherent in women's imprisonment is required, since women in prison have very specific demands and needs, such as: gestational and maternity, financial instability, history of domestic violence, the weakening of family ties and relations established by women, as well as their involvement with crime, among many other nuances that directly affect the conditions of incarceration to which they are subjected.

In addition to being central in the context of female imprisonment, the incidence of drug trafficking is also an important factor in male incarceration. In general, INFOPEN (2016) states that drug trafficking crimes account for 28 per cent of the criminal incidents for which persons deprived of their liberty have been convicted or are awaiting trial. In numbers there are 176,691 people in the Prison System due to the crimes of trafficking and, in smaller number, association for the traffic. Of these, 155,669 are men. A study undertaken by Ballesteros (2016) citing researches on the application of precautionary measures after the advent of Law 12403/2011 (ISDP and ARP, 2014), referring to the scenario of São Paulo and Rio de Janeiro, demonstrated resistance in the release of people allegedly involved in drugs. In 98% of cases, red-handed detention was converted into a pre-trial detention, but at the end of the trial, 48% of provisional detainees were not sentenced to prison sentences, which pointed to unnecessary imprisonment preventive measure initially decreed.

Another aspect that will merit attention of this project is the overrepresentation of blacks in the Brazilian prison system. The data provided by INFOPEN (2016) indicate that 64% of the prison population is made up of black people. In the Brazilian population above 18 years of age, in relation to the year 2015, the black population represented 53%, which indicates the relevance of prioritizing and targeting this variable in the context of the broader structural selectivity of the penal system, which is intended to be addressed through Custody Hearings and Other Penal Alternatives.

In order to act positively in this scenario, relevant projects and regulations have been institutionalized and important judicial decisions have already been signed in order to expand the range of interventions available to the Criminal Justice System and to induce the application of alternative criminal liability. Among the main institutes with disincarnating potential are: the Law of Cautelars (Law 12,403 / 2011); Custody Hearings Project (CNJ Resolution 213/2015); Legal Framework for Early Childhood (Law 13,257 / 2016); Habeas Corpus Colectivo (HC 143641) to determine the replacement of pre-trial detention by women prisoners; Summary 492 of the STF, limitation to the possibility of admission of adolescents by an infraction act analogous to drug trafficking; HC 118.533 / 2016 MS (STF, Rapporteur Minister Carmen Lúcia) recognizing that privileged drug trafficking (article 33, paragraph 4, of Law 11.313 / 2006) does not harmonize with the heinousness of drug trafficking defined in the caput § 1 of art. 33 of the Drug Act. However, such institutes are still insufficiently operationalized by the actors and institutions that make up the Criminal Justice System, especially in the context of the Custody Hearing.

The attenuation of privileged trafficking is a substantial part of the flagrant arrests motivated by the illicit drug trade, especially those involving women responsible for their children, foreign women acting as "mules" and many young people involved in the trafficking retail trade , easily co-opted and replaced in the dynamics of the "war on drugs" policy. By excluding the label of hideous from the generality of the crime of trafficking, existing legal and extralegal forecasts as pardon and conversion of the custodial sentence, as well as the granting of provisional liberty, with or without precautionary measures, including house arrest could be more effectively enforced by law enforcement.

It is precisely to enhance the impact of these legal institutes that the present Project justifies their relevance and necessity in order to undertake activities aimed at enabling Custody Hearings to achieve their purposes more consistently by investing in awareness and better instrumentalization of Magistrates, Prosecutors of Justice, Public Defenders and Police. To this end, discussions will be held on procedures, practices and the application of institutes with the potential to be discharged in accordance with the particularities of the cases served, as well as reflections on the traditional perception of what is, in fact, of the extreme measure of deprivation of liberty.

The Project will also act to materialize the objectives set forth in the Technical Cooperation Agreement 007/2015, signed between the National Justice Council (CNJ), the National Penitentiary Department (DEPEN) and the Defense Law Defense Institute (IDDD). a combination of efforts for the effective implementation of the Custody Hearings, effecting strategies of service and social protection of the public served, either by the implementation of the Integrated Centers of Penal Alternatives or by related actions. While the Centers are in the initial process of implementation, not yet disseminated in many Federative Units, the Project will provide specialized technical staff to act at the Custody Hearings, encouraging the qualification of attendance, the identification of risk factors and social vulnerabilities, the articulation and referral to a social protection network, among others.

In this sense, this Agreement will make an essential contribution to the diagnosis of the policies of alternative criminal and electronic monitoring at the local level, allowing the competent bodies, especially the National Council of Justice, within the scope of Project BRA / 18/019 signed with the UNDP, develop / qualify action plans for each of the Units of the Federation related to these policies, considering the need to develop specific flows involving the Judiciary, other bodies of the Justice System and the social protection network. With this, it will be possible to produce subsidies and develop actions aimed at aligning electronic monitoring services and criminal alternatives with the management models instituted by DEPEN in partnership with UNDP, in consultations aimed at Strengthening the Management of the Brazilian Prison System, to contribute to the strengthening of the implementation of Integrated Centers of Criminal Alternatives and Electronic Monitoring.

The actions to be adopted are also aligned with the normative guidelines of Resolution 213/2015, so as to contribute, in particular, to the objective of this adjustment. It should be noted that the actions are also consistent with Cooperation Agreements No. 5, 6 and 7 of 2015, signed between the National Justice Council and the Ministry of Justice, which establish guidelines and actions related to the CNJ and the Department National Penitentiary in order to promote and qualify the Custody Hearings and the policies of criminal alternatives and electronic monitoring.

Finally, with regard to the potential of the Custody Hearings to prevent and confront the most diverse practices of torture and other ill-treatment, the surveys carried out in several Federation Units (CONECTAS, 2017, BALLESTEROS, 2016, IDDD, 2018) have the need for greater institutional efforts to induce a more capillary, better articulated and consistent process of investigating the cases of violence reported and perceived during the hearings was highlighted. There are a number of practices that impede the duty to confront and prevent torture and other ill-treatment during Custody Hearings, such as: naturalization of violence, focus on rite and police records, and not on the account of persons in custody , insufficient commitment to exercise external control of police activities, lack of training and instruction for the elaboration of questions and techniques of interrogation, absence of flows and protocols for the determination of complaints and accountability of authors, among others.

In this sense, the project intends to act in the training, sensitization and instrumentalization of the operators of the law for a more consistent action in the field of confronting torture and other ill-treatment, in order to contribute to the materialization of the guidelines set forth in Resolution 213/2015 ( Protocol II), in the CNJ Recommendation No. 49/2014; in the Brazilian Protocol of Forensic Expertise and in the Protocol of Istanbul, of the United Nations - UN.