In Brazil, the presumption of innocence until proven guilty is a constitutionally enshrined right (Constitution of 1988, Article 5, subsection LVII).
However, data from the National Penitentiary Department in 2014 revealed that the proportion of provisional detainees amounted to 40%, or about ninety thousand people.
The reason for this was, in part, limited use of the non-custodial pretrial supervision measures provided by law. At the same time, an increasing number of cases were overwhelming the legal system’s capacity to deal with them.
Brazil is a signatory of the American Convention on Human Rights, which it ratified and enacted in 1992 (Decree No. 678 of 6 November 1992). In point 5 of Article 7, this Convention (Organization of American States, 1969) states that:
Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
However, more than two decades after the adoption of the Convention, the country had not yet implemented concrete measures to ensure the fulfilment of this right.
Although the Brazilian Constitution is based on the precepts of the democratic rule of law and aspires to social progress, underpinned by respect for fundamental rights and human dignity, these principles had not been extensively observed in the context of criminal justice. Moreover, this is still an evolving issue.
Added to this was the need to address the issue of torture and police violence during detention (Human Rights Watch, 2015).
In September 2015, Brazil’s Supreme Federal Court (STF) ruled that there existed an “unconstitutional state of affairs” in relation to the Brazilian penitentiary system. The Plenary concluded that the country was facing “widespread and systemic violation of fundamental rights; repeated and persistent inertia or inability on the part of public authorities to change the situation; violations requiring action not merely by one body, but by a range of public agencies”.
Among the incarcerated population, thousands of individuals were yet to be convicted, many without having had any contact with the judiciary.
Furthermore, it was found that 37% of provisional prisoners would not, in the end, be sentenced to imprisonment” (IPEA, 2015).
This state of affairs was also at odds with other constitutional requirements, namely that the judicial authority must immediately put an end to illegal detention and that no one shall be kept in prison if the law provides for provisional release, with or without bail.
The national situation demanded the adoption of structural measures.
The STF report (2015) determined that judges and courts should hold “arraignment hearings”. Thus, the arraignment hearing process was established in 2015, spearheaded by the National Council of Justice (CNJ) in cooperation with the country’s courts.
The procedure involves bringing individuals who have been arrested in flagrante delicto before a judge within 24 hours of their arrest. The accused, accompanied by his or her lawyer or public defender, are first to be heard by a judge, who will decide whether to release the person from custody or place them in pretrial detention.
The judge also evaluates whether the pretrial detention can be replaced by provisional release pending final judgment of the case and, if necessary, imposes precautionary measures, such as periodic checkins or electronic monitoring. The arraignment hearing is also a key opportunity for the judge to ascertain from the person whether there has been torture and/or ill-treatment at the time of arrest.
In February 2015, São Paulo hosted the arraignment hearing pilot project.
These hearings are intended as a link between the legal world and reality when it comes to criminal matters; the measure encourages judges to understand the scope of their role beyond the procedures involved in enforcing criminal law.
In April 2015, a technical cooperation agreement was signed between the CNJ, the Ministry of Justice and IDDD (Institute for the Defence of the Right to a Defence), with a view to implementing the project throughout the country. Over the following months, custody hearings gradually became a national reality.
Throughout that year, there were milestones in the development of jurisprudence that enabled custody hearings to be further developed and these culminated in Resolution No. 213/2015 (CNJ, 2015). This instrument regulates the procedures for bringing every person who is arrested before a judicial authority within 24 hours.
The measure has since been established as a judicial policy that is crucial in ensuring better control of the prison system’s front door.
In recent years, the arraignment hearing process has been refined, in particular through the gradual identification of inter-institutional flows within each of the Federal States, as well as at the legislative level; for example, Law No. 13.964/2019 integrated the custody hearing into the Code of Criminal Procedure.
As of 2019, the CNJ’s work on this issue is now supported by the United Nations Development Programme and the United Nations Office on Drugs and Crime and this partnership also involves the National Penitentiary Department.
The partnership has since committed to conceptualising arraignment hearings by means of the “Justiça Presente” (Present Justice) programme, as a first phase, and the “Fazendo Justiça” (Doing Justice) programme from 2020 onwards, working closely with the courts and in conjunction with the executive branch and the criminal justice system.
The Programme seeks to adapt best practices to local circumstances and, for this reason, has mobilised specialised professionals – through the Monitoring and Supervision Groups – to support the Courts of Justice in all Federal States. In addition, the partnership has developed manuals and training processes aimed at strengthening the Arraignment Hearing process.
In 2020, Justice Edson Fachin mandated the extension of the procedure to all types of arrest, thus covering not only arrests in flagrante delicto but also those resulting from the enforcement of arrest warrants.
The implementation of arraignment hearings is thus a guarantee of legality for all types of detention, regulating the admission into the prison system. One million hearings were held between 2015 and mid-2022.
Data from the report “Arraignment Hearings – 6 Years” (CNJ, 2021) show the involvement of three thousand magistrates (at least) in the more than 750 thousand arraignment hearings that were held between 2015 and 2021, ensuring “more informed decisions on the need for pretrial detention”.
In practice, the custody hearing process has contributed to a significant reduction in the number of provisional detainees in the prison system, recently calculated at around 29% (SISDEPEN, 2022).
Arraignment hearings are estimated to have prevented more than 270,000 people from being admitted into the prison system. This figure represents almost a third of current occupancy. One of the results, therefore, is the development of a more rational use of the system.
Depending on the decision/prison sentence imposed at a later stage, offenders may be required to serve alternative sentences as provided for by law. Pretrial release does not mean impunity. Pretrial supervision measures, where appropriate, provide greater assurance that criminal proceedings will take place if a person is released (supported by interdisciplinary teams in those cases where the Service for Assistance to Persons in Detention has been set up).
Arraignment hearings have enabled a paradigm shift. The new procedure provides additional information for judges to be able to analyse each arrest’s background. Previously, this analysis was done through documents and, as a general rule, late, often several months after the person was admitted into the prison system. The procedure thus contributes to more effective and individualised responses in criminal justice.
Finally, arraignment hearings represent a humanised approach in line with human rights, promoting informed judicial decisions and a multidisciplinary service (coordinated through a robust network of partner entities) that seeks to ensure social protection for people in custody.