Serious flaw
Project creating detention hearings loses significance without investigation of torture, say NGOs in the IACHR
The detention hearings that are being implemented by the CNJ (National Justice Council) in Brazil will only be “symbolic” if they do not serve to investigate cases of torture reported by the suspects. This was the message that civil society organizations conveyed to the IACHR (Inter-American Commission on Human Rights) and to the president of the Council, Justice Ricardo Lewandowski, in a hearing held today, October 20, in Washington.
“The implementation of the detention hearings, which are a unique opportunity to mitigate the routine police violence to which much of the population is subjected, is being wasted and turning into just another measure with symbolic value for the bodies that create them, but with very little influence on the lives of those who need them,” said Vivian Calderoni, a lawyer for the Justice program at Conectas.
In São Paulo alone, according to data from the State Court, 277 reports of torture have been registered since February. Nobody is being investigated. A survey being conducted by Conectas in the Criminal Courthouse of Barra Funda, in São Paulo, reveals even more alarming data: just in August and September, there were 151 reports, indicating that the cases are being underreported by the authorities.
According to the same survey, nearly 45% of the judges never asked whether the suspect was exposed to any violence, even when there were physical signs. The prosecutors from the Public Prosecutor’s Office, the body whose duties include the control of police activity, did not ask a single question in any of the cases.
“The project is positive and responds to a long-time demand from civil society, but to work properly it needs to resolve this serious flaw, which derives from the structural problems that still plague the Judiciary – such as selectivity, racism and tolerance of torture,” said Rafael Custódio, coordinator of the Justice program at Conectas.
Crusade
The adoption of detention hearings, which ensure that suspects see a judge within 24 hours of their arrest – to avoid unnecessary pre-trial detention and prevent mistreatment – has been a crusade of Lewandowski at the helm of the CNJ. Through cooperation agreements with state courts, he has managed to implement pilot projects in all the state capitals since the start of the year. The project in São Paulo, a state that holds 36% of the Brazilian prison population, is the most important.
In his speech to the IACHR, Justice Lewandowski said the detention hearings have been successful in countering “the ingrained culture of ‘the only good criminal is a dead criminal’” and that, despite initial resistance, judges today have “embraced the idea”.
Brazil is one of seven countries among the 35 States Parties to the American Convention on Human Rights that still does not have federal guarantees making the procedure mandatory, in spite of long-time pressure from human rights organizations to approve a bill in the Senate (Senate Bill 554/2011) that would institute detention hearings across the country.
Lewandowski said he supports the bill, but argued that the adoption of the hearings does not require a law, since they derive from an international treaty that has been ratified by Brazil – the American Convention on Human Rights. Its supra-legal status (above ordinary laws, but below the Constitution), he explained, enables the immediate application of the hearings.
Natalia Damazio, a lawyer for Justiça Global, claimed in contrast that the lack of a legal framework on the federal level threatens the effectiveness of the project. “We appreciate the initiative, but it is insufficient,” she said.
Recommendations
The organizations present at the hearing made five recommendations to guarantee the effectiveness of the policy: the approval of Senate Bill 554/2011 by Congress, banning the possibility of hearings held by video conference; the creation of a protocol for registering and forwarding reports of torture; the exceptional application of pre-trial precautionary measures by judges; the constant production of public and reliable data on the hearings; and, finally, the ongoing training of judges, public prosecutors and public defenders.
Click here to read the document delivered by Conectas, ITTC, Justiça Global and the International Human Rights Clinic of Harvard to the IACHR.
Watch the hearing in full:
IACHR
The IACHR is a principal and autonomous body of the OAS whose mission is to promote and protect human rights in the American hemisphere. It is formed by seven independent members who serve in a personal capacity. Created in 1959, the Commission has its headquarters in Washington DC and, together with the Inter-American Court of Human Rights (IAHR Court), installed in 1979, it is one of the institutions of the Inter-American Human Rights System (IAHRS).
