Arraignment hearings guarantee human rights and avoid excessive pretrial detention in Brazil

Interview

Luís Geraldo Lanfredi

Deputy Judge of the Presidency of the National Council of Justice & Coordinator of the Department of Monitoring and Inspection of the Prison System, Brazil

In 2015, the National Council of Justice (CNJ), through its Department for Monitoring and Inspection of the Prison System and the System for the Execution of Socioeducational Measures (DMF/CNJ), coordinated the national roll-out of arraignment hearings in association with local courts.

The process guarantees that detainees are brought before the Judicial Authority within 24 hours (or in the shortest possible time in exceptional cases). It’s a procedure that seeks to apply the American Convention on Human Rights (Pact of San José de Costa Rica, 1969) internalised in Brazil through Decree No. 678/1992.

The CNJ regulated the operation of arraignment hearings at the end of 2015. The arraignment process enables an assessment of the legality of detaining the person and options for them to remain at liberty during the judicial process, under the circumstances provided for by law, either with or without preventive measures.

In addition, the arraignment hearing is an opportunity for the judicial authority to establish whether torture or mistreatment has occurred during detention. Holding faceto- face hearings is essential for such verification.

The setting up, consolidation and expansion of arraignment hearings, including strengthening the State’s action in matters of social assistance and judicial alternatives, continue to be priority issues addressed by the CNJ. Since 2019, policies have been tackled through a portfolio of initiatives coordinated by the CNJ, promoting advocacy in the criminal and juvenile justice system in partnership with the United Nations Development Programme and with the support of the Ministry of Justice and Public Security, namely the “Fazendo Justiça” (Doing Justice) Programme.

Arraignment hearing activities are also carried out with the help of the United Nations Office on Drugs and Crime.

¿Cuál fue el escenario que motivó la implementación de las audiencias de custodia y cuáles son los resultados obtenidos, en la práctica, hasta el momento?

LL: In the last 30 years, Brazil has seen an alarming increase in the number of people incarcerated, rising from 90,000 in 1990 to around 750,000 today. The incarceration rate has doubled, now exceeding 300 per 100,000 inhabitants. In this context, one of the factors that is still drawing attention is the high percentage of provisional prisoners, which reached nearly 41% of the total prison population in 2014. The low application rates of injunctive relief – provided for by law – partly explain this percentage. Moreover, the increasing numbers of criminal proceedings have also congested the Judiciary’s rapid decision-making capacity.

The country had hundreds of thousands of people imprisoned without sentences, many still lacking any contact with the Judiciary. This situation contravenes the constitutional principle of presumption of innocence before trial.

Furthermore, studies have revealed that 37% of the people in pretrial detention are not found guilty. This situation also contravenes two other important constitutional provisions that establish that 1) the Judicial Authority must immediately mitigate any illegal deprivation of liberty; and 2) no one will remain in prison when the law provides for provisional release, with or without bail (sections LXV and LXVI, respectively, of Article 5 of the Federal Constitution of 1988).

Twenty years after adopting the American Convention on Human Rights, Brazil had not yet established the right of every person to be immediately brought before a judge to assess their situation.

In 2015, the Federal Supreme Court finally ruled that the Brazilian prison system represented an unconstitutional state of affairs, similar to that previously seen in Colombia. The decision was mainly motivated by the appalling conditions in detention facilities which were suffering from more than 160% overcrowding.

This combination of factors prompted a coordinated national response to control the point of access into the prison system. Thus, the introduction of arraignment hearings.

In addition to allowing immediate contact between the detainee and the Judiciary, arraignment hearings provide the judge with more information. Both the defence and prosecution teams assist in analysing the context of each detention and discussing whether pretrial detention is necessary.

Furthermore, the arraignment hearing also allows the judge to investigate any complaint of abuse or torture by the police, which can then lead to the appropriate measures being taken. Before this, the evaluation was based solely on documentary evidence.

The project was immediately rolled out to all capital cities, resulting in one million arraignment hearings held over seven years. At the peak of the Covid-19 pandemic, hearings were often suspended due to the epidemiological risk. During this period, the control of arrests was carried out at a distance through documentary analysis of the respective records, photos and expert reports.

Arraignment Hearings Project launch at the São Paulo Court of Justice. February 2015. Photo: Antônio Carreta/TJSP © National Council of Justice, Brazil

In recent years, we have seen a significant drop in the percentage of people put on remand, currently at 27.24% of the total, representing a reduction of nearly 13% compared to 2014. There has also been a reduction in the conversion rate of pretrial detentions in different states of the Federation. 

Currently, this index is 59.8% of the national average, alleviating prison overcrowding. In addition, public spending of around R$20 billion (Reais) linked to creating or maintaining vacancies in prisons has been saved. There was also an increase in referrals for social protection – between 2019 and 2020, this number grew by 17%, for example. The establishment of systems and procedures related to alternative criminal sentencing was also significantly boosted.

These achievements have mainly been the result of the partnership with the United Nations Development Programme and the support of the Ministry of Justice and Public Security in 2019; today embodied by the “Fazendo Justiça” Programme.

Additionally, APEC (Services to the Person in Custody) [1] were established in twenty-one major cities, in which multidisciplinary teams work to evaluate the response of the Judiciary both before and after arraignment hearings. This scheme is carried out together with other institutional actors and takes other policies into account. The United Nations Office on Drugs and Crime supports these activities.

The system of arraignment hearings draws attention to the issues relating to admission into the prison system and the significant increase in incarceration in recent years.

Arraignment hearing held at the Federal District Court of Justice. November 2015. Photo: Luiz Silveira/Agência CNJ © National Council of Justice, Brazil

¿Qué es esta cultura y cómo el CNJ promueve y apoya el cambio de mentalidad que el país necesita a este nivel?

LL: Arraignment hearings are not directly a tool for reducing incarceration. Judges, endowed with their functional independence and for each specific case, continue to make their decisions following the provisions of the law.

However, the system of arraignment hearings undoubtedly urges reflection on fundamental questions regarding incarceration in the country. The procedure draws attention to the issues relating to admission into the prison system and the significant increase in incarceration in recent years.

Both the State and society have started paying more attention to who is arrested and how, especially in the case of detentions in flagrante delicto, which represent the vast majority of cases of pretrial detention.
In
addition, we know that the main reasons for imprisonment in the country today are related to crimes against property and drug trafficking. These crimes cause the incarceration of specific social classes, mostly young black men with limited economic resources and education.

A more systemic analysis of the context of arrests in flagrante delicto is imperative because prison multiplies the harmful socioeconomic effects, not only for the suspects/defendants and their families but also for society itself.

Maintaining the Brazilian prison system currently costs the Treasury R$14.7 billion (Brazilian Reais) a year, not to mention the economic cost of large numbers of people removed from the country’s productive workforce.

Another aspect to come out of arraignment hearings is the reinforcement of an attitude of intolerance towards the torture and abuse practised by law enforcement officers during arrests. However, there is still a long way to go in assessing the way these cases are discovered and investigated – there have been 45,000 reported cases
since 2015, reaching about 6.5% of the total hearings carried out. 

Still, the matter is now definitively on the agenda.

 

 JT: Through arraignment hearings, the CNJ is also combatting a “culture of imprisonment”.

As the person in charge of rolling out arraignment hearings across Brazil, what were/are the most significant challenges in applying this procedure?

LL: One of the most significant challenges that is still ongoing is neutralising the false narrative that arraignment hearings exist to release people from jail and increase impunity.

The primary message is that this judicial procedure has not altered criminal legislation in any way. In fact, arraignment hearings reinforce the application of criminal law and the Constitution, particularly at the time of arrest, since the abuse of authority is also considered a crime by the Brazilian legal system. Moreover, there is no impunity if the people on provisional release or subject to a precautionary measure continue to take part in criminal proceedings.

Nevertheless, social pressure for more detentions is understandable, as most of the country’s crimes, especially the most heinous, are not solved.

For example, some studies indicate that less than 50% of homicides are solved in Brazil and the vast majority are only uncovered when there has been detention in flagrante delicto, which underlines the need to improve criminal investigation procedures.

For a society used to understanding incarceration as the primary response to insecurity and fear, maintaining provisional detainees seems like an appropriate shortcut. In this scenario, however, there is no room for reflection on who we are sending to prison, for what type of crimes and, above all, what the impact that incarceration will likely have had on them once they are released.

When people understand the true nature and purpose of arraignment hearings, however, few disagree that this should be a right for everyone.

It allows the arrested person to have contact with a judge in the shortest possible time.

The measure’s benefits are evident, particularly in terms of public safety, i.e. to prevent people who are not deserving of a prison sentence from being detained any longer than necessary.

In the same way, like any national initiative involving different institutions in a country as big as Brazil, there were implementation challenges. Some of these still remain in terms of internalising and standardising the procedures for a single response, as provided for in Resolution CNJ 213/2015.

Now that the exceptional circumstances caused by the pandemic are over, we are reinforcing the importance of resuming face-to-face hearings instead of videoconferencing. The CNJ is constantly in dialogue with the courts and magistrates to develop procedures that will support them in their daily work.

National meeting of state consultants in Arraignment Hearing, with representatives from the CNJ, UNODC and UNDP. January 2020. Photo: Luiz Silveira/Agência CNJ © National Council of Justice. Brazil

One of the most significant challenges that is still ongoing is neutralising the false narrative that arraignment hearings exist to release people from jail and increase impunity.

 JT: In recent years, there has been considerable investment in promoting alternative sentencing policies across all Brazilian States. The initiative includes establishing and strengthening Integrated Alternative Sentencing Centres (CIAP by its acronym in Portuguese), which are a key focus for the National Council of Justice” (Source).

How has alternative sentencing evolved in Brazil and with what results? What work remains to be done in reviewing the main policy objectives to support non-custodial sentences, including reducing incarceration in Brazil?

LL: Alternative sentencing has been gaining ground since the 1990s, in a similar way as it did in other countries after the United Nations issued the Tokyo Rules.

Following the law that created the special criminal courts in 1995, there have been developments in the theoretical and regulatory aspects of alternative sentencing. It has also been an area of interest and development for Public Policy. However, progress has been scattered and lacking in structure. This is a situation that persists to this day, in that we do not yet have updated figures for the number of people serving alternative sentences, for example.

In the 2010s, the strengthening of a national policy on alternative criminal sentences began to be discussed and financed by the Federal Government. At the same time, the CNJ consolidated discussions in the field of restorative justice.

It is true that these activities have led to an increase in the application of alternative sentences. However, the evidence suggests that this progress has not reduced the prison population, which has, in fact, increased over the last decade.

In 2019, the CNJ approved the regulation that defined the Judiciary’s institutional policy promoting the application of penal alternatives geared towards a restorative justice approach. Furthermore, this has become one of the main axes of the partnership with the United Nations Development Programme and our Ministry of Justice and Public Security.

In this way, we are linking alternative sentences with the strengthening of arraignment hearings and electronic monitoring, for example.

In addition to encouraging the setting up and operation of District Courts Specialised in Alternative Sentences, the CNJ is working to promote the creation of Integrated Alternative Sentencing Centres (CIAP). This initiative is carried out through the “Fazendo Justiça” Programme; five CIAPs have already been set up through the speeding up of agreements with the Federal Executive and another six will launch soon.

We believe that cooperation between the Judiciary and the Executive authority is essential to achieving structured results in alternatives to incarceration, thus establishing a real national alternative sentencing system.

One of the challenges is the need for investment to set up more alternative sentencing centres and specialised district courts. The enabling of human resources and development of strategies for greater institutionalisation and structuring of the policy also require resources.

It is, therefore, necessary to promote state regulations and guidelines to achieve better uniformity of operation. Another challenge, which leads on from the first, is to ensure a broader application of alternative sentencing as a form of holding someone criminally accountable instead of only prison.

We expect this new culture to be gradually strengthened as the policy becomes more structured across the nation and we are supporting this development through initiatives like the National Forum on Penal Alternatives. Last year, we brought together more than a thousand participants for the 3rd edition of the event.

CNJ’s programme “Começar de Novo” aims to promote jobs and professional training courses for prisoners and ex-convicts. Photo: Luiz Silveira/CNJ Agency © National Council of Justice, Brazil

 JT: The CNJ has been working with the United Nations Development Programme (UNDP) and the Inter-American Development Bank (IDB) to define and implement policies/measures addressing the structural problems of the country’s prison and juvenile justice systems.

What initiatives has this international cooperation supported and what is their importance in terms of criminal justice in Brazil?

LL: Since 2019, the partnership between the CNJ, UNDP Brazil and the Ministry of Justice and Public Security has addressed multiple challenges in the penitentiary area, as the disruptions that affect the criminal and juvenile justice systems are structural and interconnected.

To ensure coherence and coordination of objectives, our Programme is focusing on measures that cover the whole process from beginning to end and including transversal activities such as the creation or improvement of technological systems and records. Currently, there are 28 simultaneous initiatives in progress. The Programme has gone through several stages and is constantly evolving.

The participation of the UNDP and other partners from the international scene has been essential for this project to be launched and become a reality throughout the country. The technical teams support the CNJ and the courts in the development of workflows, procedures, tools and services, as well as facilitating contact with other relevant institutional actors. 

We have a well-defined national plan that has been deployed in State plans and adapted to each Federal Unit. We support professionals in these locations to provide expert contribution.

The way in which the CNJ is working with the courts to introduce new legal policies for the criminal and juvenile justice system is unprecedented. The success of this way of working has inspired us to expand our partnerships following the same model.

Together with the UNDP and other partner organisations, the CNJ promotes the Justice 4.0 Programme that aims to drive digital transformation in the justice sector. Photo: Romulo Serpa/ Ag.CNJ © National Council of Justice, Brazil

What other projects and results from the CNJ’s involvement in progressing the Brazilian criminal justice system would you highlight? What are the future challenges?

LL: The CNJ is a relatively new body, created in 2005, while the law that created the DMF dates from 2009. We are working to strengthen projects and initiatives that have proven relevant during this trajectory.

For example, the CNJ has been offering support to ex-convicts since 2008 through the “Começar de Novo” (Start Again) Programme. This initiative connects released prison inmates with opportunities in the labour market.

Today, this work is enhanced through the Social Offices, a methodology created by the CNJ in 2016. The Social Offices are spaces managed by the Executive and Judiciary offering multi-service assistance with 36 dedicated units across 22 Brazilian states.

It is worth noting that, in addition to these projects, the CNJ has a fundamental regulatory role that has contributed significantly to institutionalising and standardising practices.

As an example, I would highlight the recent approval of a legal framework for electronic monitoring. After a long debate with different justice system actors, this resolution now defines the basis and structuring of judicial treatment regarding electronic monitoring.

In terms of juvenile justice, a regulation approved by the CNJ in 2021 boosted the applicability of the 2020 Federal Supreme Court decision, which banned overcrowding in youth detention centres (Collective Habeas Corpus No. 143 988 of the Office of the Rapporteur of Minister Edson Fachin).

Even with so many initiatives already underway, there remain many areas of need in order to strengthen a culture based on the guarantee of rights and this will, of course, generate new opportunities for action.

At the CNJ, we have a Monitoring and Inspection Unit for the Inter-American Court of Human Rights rulings, which also works with the DMF. Since 2021, this Unit has paid particular attention to monitoring the situation in prisons that have been subjected to measures issued by the Court (binding decisions in the context of emergency injunctions).

I’m referring to the Curado Penitentiary Complex in Pernambuco, the Pedrinhas Penitentiary Complex in Maranhão, the Plácido de Sá Carvalho Penal Institute in Rio de Janeiro and the Juvenile Detention Centre in Espírito Santo.

Also in 2021, based on a scenario of institutional mobilisation and rising public debate, the CNJ began working on the issue of suspect identification procedures. The indiscriminate use of mugshot databases had been growing amidst a lack of in-depth debate, interfering with the smooth functioning of the State’s criminal justice response. 

The consequences were particularly felt by the black population, which is most affected by mistaken identification. As such, the practice has often led to the arrest of innocent people and the impunity of those responsible for criminal offences.

To sum up, we hope to continue working on a variety of levels that will complement each other and positively influence the Judiciary in support of the necessary progress in penitentiary matters throughout Brazil.

References:

[1] APEC is the acronym for “Serviço de Atendimento à Pessoa Custodiada”. This service provides multidisciplinary teams, particularly social workers and psychologists, to assist the person in custody. It is
an initiative of the “Fazendo Justiça” Programme, a set of initiatives to address structural challenges related
to the deprivation of liberty in Brazil.

Luís Geraldo Lanfredi

Deputy Judge of the Presidency of the National Council of Justice & Coordinator of the Department of Monitoring and Inspection of the Prison System, Brazil

Luís Geraldo Lanfredi has been actively involved in the roll-out of arraignment hearings in Brazil, assisting the Presidency of the National Council of Justice. He coordinates the Department of Monitoring and Inspection of the Prison System (DMF), a unit of the CNJ responsible for supporting the Council in criminal, juvenile justice and prison matters. Since 2019, the DMF has also been responsible for monitoring the “Fazendo Justiça” Programme. He is a Judge of the Court of Justice of São Paulo and was the Deputy President of the National Council of Criminal and Penitentiary Policy of the Ministry of Justice during 2013-2014.

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