Brazil: Harnessing the potential of custody hearings

Wednesday, December 20, 2017

Custody hearings – or the practice of presenting a person arrested before a judge in the first hours of detention – significantly contribute to preventing torture and ill-treatment. But for such early appearances before a judicial officer to achieve their full potential as a preventive tool, actors in the criminal justice system must not only take a clear stand on the absolute prohibition of torture, but also learn how best to carry out such hearings, including how to inquire into police officers’ conduct and hear complaints.

With these concerns in mind, the APT has been fostering closer partnerships with the Brazilian Judiciary and Public Prosecution Offices to provide technical and specialised assistance on how such hearings should be conducted to enhance their impact as a safeguard against police abuse. In particular, the APT engaged with the Judiciary and Public Prosecution Offices of the States of Rio de Janeiro and Alagoas to carry out training workshops on their roles as torture prevention agents and, more specifically, on operational procedures of custody hearings.

“Bringing a person who has been arrested before a judge within 24 hours of detention has a strong deterrent effect in itself, as this means police conduct will be under prompt scrutiny,” explains APT’s Representative in Brazil, Sylvia Dias. “However, this deterrent effect will only have a significant and lasting impact if all criminal justice system actors attending such hearings are vigilant for signs of torture and ill-treatment and take steps to terminate and remedy such situations.”

Despite being relatively new in the country, the practice of custody hearings in Brazil has already born fruit. From the introduction of custody hearings in February 2015 up to June 2017, over 250,000 detainees were brought before a judge within 24 hours of their arrest, leading to a reduction of the number of people sent to pre-trial detention – a progress in a country home to the third largest prison population in the world. Nevertheless, in the majority of states, the use of pre-trial detention remains the norm, not the exception.

During the workshops, APT raised the essential operational conditions that must be met during such hearings in order to enable detainees to report torture or ill-treatment, such as ensuring the privacy and confidentiality of detainees’ meetings with their lawyer, in a space where he or she feels safe and no police officer is present. The trainings also addressed practical aspects, including the type of questions judges and public prosecutors should ask to check on the police officers’ conduct, ensure respect of procedural safeguards, and examine detention conditions – including transfer vehicles – prior to the hearing.

Follow-up measures were also at the core of the discussions with judges and public prosecutors in order to define which steps they should take once a complaint is made. In line with guidelines set up by the National Council of Justice’s Resolution 213/2015 on Custody Hearings, the APT stressed that judicial officials must record in writing, and in as many details as possible, all allegations of torture and ill-treatment that come up – including by identifying any possible witness, requesting immediate gathering of forensic documentation such as pictures of any mark or bruise, and ordering a prompt forensic medical examination in accordance with the rules set by the Istanbul Protocol on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

“Custody hearings are one of the most valuable moments to find out about the treatment of detainees during the first hours of detention, when the risk of torture is the highest. We therefore hope to pursue our close and fruitful collaboration with the Judiciary, Public Prosecution and Public Defence Offices in the future in order to strengthen the impact of custody hearings as a tool to prevent torture and ill-treatment in Brazil,” concluded Dias, adding that the framework of APT’s collaboration with the judiciary also allows for raising other issues including those related to groups in situation of vulnerability, among which women and LGBTI persons.

The two workshops were announced and reported on:

  • Local newspaper from the state of Alagoas, Correio do Municípios on 14 March and 29 May 2017;
  • The Public Ministry of the state of Rio de Janeiro's website on 18 October and 23 October 2017.

For more information, watch APT’s Representative, Sylvia Dias on Custody hearings in Brazil

APT's Representative in Brazil, in Brazil, Sylvia Dias launches the workshop on Preventing Torture and Cruel and Inhumane Treatment. Training Academy of Judges, Maceió, State of Alagoas, 29-30 May 2017.

Group exercise to debate techniques judges can employ to interview detainees during custody hearings to enable reports and identify signs of torture and ill-treatment at first hours of detention. Training Academy of Judges, Maceió, State of Alagoas, 29-30 May 2017.

APT’s Board Member, José de Jesus Filho shares with judges reflections on the conceptualisation of torture prevention and the role of judges as agents of torture prevention.

Members of the National Preventive Mechanism of Brazil and of the Local Preventive Mechanism of Rio de Janeiro, Luz Arinda and Vera Lucia Alves, shared with public prosecutors in Rio de Janeiro their reports and recommendations on improving conditions of detention and preventing torture.

APT’s Regional Director for Latin America, Audrey Olivier Muralt, together with Flavia Piovesan, former Human Rights Secretary of Brazil, Eliane de Lima Pereira and Roberta Ribeiro, Coordinators of the Human Rights Advisory Group of the Public Prosecutor´s Office of Rio de Janeiro, joined the opening panel of the training workshop “Preventing and combating torture: the role of the Public Prosecution Office”, 18 October 2017.

Public Prosecutors of the State of Rio de Janeiro participating at the training workshop “Preventing and combating torture: the role of the Public Prosecution Office”, co-organised by APT, the National Human Rights Secretariat and the Human Rights Advisory Group of the Public Prosecutor´s Office of Rio de Janeiro, 19-20 October 2017.