“The doorway to the system remains wide open”

One year since their establishment in São Paulo, detention hearings grant bail in less than half of cases and fail to investigate torture

Evandro sits before the judge in the Criminal Courthouse of Barra Funda, in São Paulo, less than 24 hours after being arrested in flagrante for handling stolen goods. In just over 15 minutes, the judge concludes that it would be illegal to keep Evandro in prison while awaiting trial and releases him on bail of one minimum wage.

If he had been arrested a year ago, the story would have been very different: Evandro would have joined the more than 250,000 prisoners in the Brazilian prison system who have still not received their final sentence – a group that represents 41% of the entire prison population, according to data from June 2014 from the Ministry of Justice. His pre-trial detention, together with thousands of others, would contribute to the endemic overcrowding of prisons in São Paulo, a state that alone accounts for more than a third of the country’s prisoners. He would share with another 219,000 detainees an area designed to hold just 130,400 people and would wait months until he had the chance to see a judge and a public defender.

Detention hearings like the one that released Evandro were introduced in São Paulo a year ago this Wednesday, February 24, as part of a pilot project of the CNJ (National Justice Council). Despite being billed as a key tool to slow the rapid increase in the incarceration rate in Brazil, of around 119% since the year 2000, organizations that have been closely monitoring the initiative claim that it is still far from complying with its primary two-fold objective – to reduce illegal detention, thereby decongesting the prison system, and to curb the practice of torture.

According to data from the São Paulo State Court, more than 14,000 cases had been analyzed by November 30, but only 45% of the defendants were released on bail.

“As determined by the international treaties signed by Brazil, the Federal Constitution and the legal scope of the detention hearings themselves, bail should be the rule, not the exception,” said Rafael Custódio, coordinator of the Justice program at Conectas. “The detention hearings have the potential to quickly release people who have the right to await their trial on bail. However, considering the partial assessment of the first year in São Paulo, the fact is that the doorway to the prison system remains wide open. This can be explained by the state’s public security policy, which views the high number of detentions as a ‘success’, and also by the punitive ideology of the prosecutors and judges who endorse this policy,” he added.

Regarding cases of torture or mistreatment committed by the police when the suspects are arrested, the State Court has informed that, until January 29, a total of 1,152 complaints had been received by its internal affairs office. Of these, 857 (74.3%) were being investigated. Not a single officer has been held accountable to date.

“Prisoners would sometimes wait months before seeing a judge for the first time. By that point, the physical evidence of the violence would have disappeared and the State would lose the opportunity to address it,” explained Vivian Calderoni, a lawyer for the Justice program at Conectas. “With these hearings, there is a real chance of breaking with the culture of torture and mistreatment that exists in Brazil, particularly in prisons and police stations, because not long after the arrest the detainee can report it to a judge, the prosecutor and their public defender, as well as have a physical examination. It is essential that the institutions of the justice system prioritize this function of the detention hearings, which has not been happening: prosecutors and judges are insensitive to the reports of torture and public defenders often just go through the motions.”

In October last year, the IACHR (Inter-American Commission on Human Rights of the OAS) assessed the implementation of detention hearings in Brazil. The conclusion drawn by the region’s main human rights body was that the project will only be symbolic if it does not serve to investigate cases of torture reported by the defendants. It also stressed the importance of passing a law to make detention hearings mandatory, so they do not depend on a specific and temporary initiative by the CNJ. This is the only way, said the representatives of the IACHR, that the hearings will fully comply with the standards established in the American Convention on Human Rights, which has been ratified by Brazil.

A legislative bill (Senate Bill 554/2011) that would institute the detention hearings across the country has been pending in the Senate for four years. The Criminal Justice Network, of which Conectas is part, has developed a national campaign to raise awareness among the population and lawmakers about the importance of the bill. The protagonist of the audiovisual campaign is the actor Vinícius Romão, who was arrested in 2014 in Rio de Janeiro after being mistaken for a thief. Vinícius is black and he spent 16 days in prison. Watch below: