Collective habeas corpus to benefit mothers and pregnant women
By 4 votes to 1, the Second Panel of the Supreme Court rules to convert pre-trial detention into house arrest for these prisoners
Presas com seus filhos recém-nascidos no colo em ala comunitária dentro do Presídio Feminino do Butantã, em São Paulo, durante visita realizada pela Conectas ao local em 2016.
By four votes to one, the Second Panel of the Supreme Court granted a collective habeas corpus to all pregnant women and mothers of young children held in pre-trial detention in the Brazilian prison system. The ruling will be valid for all cases pending anywhere in the justice system.
The request for habeas corpus was filed by a group of human rights lawyers known as CADHu on behalf of all women subjected to pre-trial detention who are either pregnant or breastfeeding and mothers with children up to 12 years of age who have not committed violent crimes and/or crimes against their children. At the suggestion of Justice Gilmar Mendes, the Court also included in the ruling mothers whose children have a physical or mental disability, regardless of their age. Women who fit this profile may have their pre-trial detention converted into house arrest.
The rapporteur of the case, Justice Ricardo Lewandowski, argued that the degrading situation to which women are subjected – in some cases accompanied by their infants – could attract the criticism of international bodies. He also said that the way things currently stand, the sentence of the mother is also imposed on the child, and that this dynamic violates constitutional, treaty and legal rules, such as the Early Childhood Act (Law 13.257/2016).
“They are women and children subjected to a completely distorted and cruel notion of incarceration, and they will now have the opportunity to form bonds outside an extremely abusive environment like prison,” said Rafael Custódio, coordinator of the Institutional Violence program at Conectas. “The expectation is that this historic ruling by the Supreme Court will be capable of restoring the dignity that has been taken from these women and their children, and that cases in which the rights of detained mothers have been disrespected by the public authorities will not be repeated,” he added.
However, according to Custódio, the ruling is flawed as it permits women to be kept in custody in “extremely exceptional cases”. “Since the Supreme Court does not specify what the extremely exceptional cases are, this paves the way for punitive judges to keep women imprisoned, even though they meet the requirements for house arrest,” he explained.
Voting in line with Ricardo Lewandowski were the justices Gilmar Mendes, Dias Toffoli and Celso de Mello. Justice Edson Fachin, meanwhile, argued that each case should be assessed individually.
