Press Release

IACHR Celebrates the Anniversary of the Implementation of the Custody Hearings in Brazil

March 7, 2016

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) celebrates the anniversary of the implementation of custody hearings in Brazil, mechanism adopted by the Brazilian State to reduce overpopulation in detention centers and pretrial prison in the country. The procedure of custody hearings began with a pilot project in the state of São Paulo on February 24, 2015.

In the Report on the Use of Pretrial Detention in the Americas, the Commission indicated that States should use deprivation of liberty “only insofar as it is necessary to meet a pressing societal need, and in a manner proportionate to that need.” To that effect, the States have the obligation to adopt public policies and comprehensive strategies directed to rationalize the use of detention, and in particular, with the objective to reduce the use of pretrial detention. One of the innovative practices recommended by the Commission was the implementation of previous hearings to determine the use of pretrial detention.

In accordance to information from the State of Brazil, through the procedure known as custody hearing, persons detained in flagrant, independent from the motivation or nature of the offense, they have to be presented before the judge within 24 hours counted from the time the person is detained. During these hearings, judicial authorities listen to the individuals deprived of liberty in the presence of the Public Ministry and the Public Defender, with the objective of determining the continuation of the preventive measure, the impropriety of any punitive measure, or the application of alternative measures. According to public information, the procedure of custody hearing was first implemented as a pilot project in São Paulo on February 24, 2015, and is currently in effect in the 26 states of the country. Likewise, the Inter American Commission observes that after the 213/2015 Resolution from the National Council of Justice, which took effect February 1, 2016, all tribunals in the country are required to implement this type of hearings in all jurisdictions starting in May 2016.

According to the data from the Brazilian Judicial Council, since the beginning of these procedures, 49.668 custody hearings have been held in the country. In 24.641 cases, equivalent to 49.61%, pretrial detention was determined not to be applicable. The IACHR welcomes the efforts from the Brazilian State to establish the custody hearings to avoid unnecessary deprivation of liberty, therefore giving an incentive to the use of alternative measures to pretrial detention and contributing in the reduction of overpopulation in detention centers.

“The custody hearings constitute an important step in the process to strengthening of justice in the region. I believe that this good practice, as well as other measures adopted to reduce pretrial detention, will contribute to overcome the myth that increasing deprivation of liberty constitutes an effective way to reduce crime,” said the Rapporteur on the Rights of Persons Deprived of Liberty at the IACHR, Commissioner President James Cavallaro.

Likewise, custody hearings have permitted detained persons to denounce possible acts of torture and other cruel, inhuman or degrading treatment. In this regard, the National Council of Justice informed that after one year of implementation of the program, it has registered 2.909 complaints of torture or bad treatments. In this regard, organizations participating in the public hearing  “Initial Court Appearances in Brazil,” which took place at the IACHR in October 2015, informed about the alleged absence of monitoring and effective investigation in regards of public denounces of torture. In this sense, the IACHR reminds the State, as it has done with the public hearings, the importance that these kinds of initiatives are monitored by civil society.

Additionally, according to information from the National Council of Justice, the data of confirmation of pretrial detention is larger than 50% in 12 states where custody hearings are functioning. In this regard, the IACHR reminds that the utilization of this measure needs to be strictly exceptional in nature, and its application should be adequate to legal principles, presumption of innocence, reasonable, necessity, and proportionality. Likewise, it reiterates that the non-exceptional use of pretrial detention indicates a disruption in the respect and guarantee of the rights of persons deprived of liberty. It also constitutes one of the most evident signs of failure of the judicial system in a democratic society where the right of all citizens to presumption of innocence is respected.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 029/16