São Paulo government faces lawsuit over abusive searches
Class action claims compensation for moral damages
The São Paulo state government will answer in court for subjecting the relatives of prisoners to abusive searches at the Guarulhos I and II pre-trial detention facilities. The class action suit for moral damages was filed by Conectas yesterday, May 20, based on 24 letters received by the organization over the past few months. Reports reveal that female visitors, even elderly women and children, are systematically required to strip naked, squat, push, and open their anus and vagina in front of prison guards – a routine that is repeated at the majority of Brazilian prisons.
According to the case, these abusive searches breach the Brazilian Constitution and various international treaties signed by the country. They are also legally groundless and pose a risk to the relationship between prisoners and their relatives.
“The social effects of the abusive intimate search, which extends the application of the sentence to people other than the offender and violates the constitutional protection of the family, are inevitable,” reads the document. “To the extent that the state of São Paulo violates collective goods guaranteed by the Constitution, it will be society at large that bears the burden, since the rehabilitational goal of prison will not be accomplished.
The lawsuit is asking for the state to be held accountable for violations committed against the relatives of prisoners in the Guarulhos I and II pre-trial detention facilities and for the payment of compensation in the amount of R$1 million for collective moral damages. This amount will deposited in a common rights fund that will be used to pay for public policies for prisons. The case may also be used by relatives who wish to seek individual reparation.
“These people are subjected to one of the most humiliating procedures ever conducted, without any grounds for suspicion. As far as the state of São Paulo is concerned, they must be criminals simply because they have emotional bonds with prisoners. And in the case of these pre-trial detention facilities, it is important to remember that none of the detainees have even faced trial,” said Rafael Custódio, coordinator of Justice at Conectas.
Empty justifications
These abusive searches have already been condemned by the UN and the Inter-American Commission on Human Rights, but they are still performed at most Brazilian prisons under the justification of barring the entry of contraband.
However, research has shown that this reasoning is groundless. A report by the Criminal Justice Network based on information from the São Paulo Prison Administration Department reveals that only 0.03% of visitors were found carrying contraband items. There were no cases of weapons being seized. The research used data from the months of February, March and April of 2010, 2011, 2012 and 2013.
Bill
A national campaign was launched on April 23 by the Criminal Justice Network, of which Conectas is part, calling for the approval of Bill No. 480/2013, which would put a stop to abusive searches across the country. Audio and video files pieced together from real statements demonstrate the humiliation that the relatives of prisoners are subjected to on visitation days. The campaign was supported by the actress Denise Fraga and the rap singer Dexter.
Visit the website of the campaign and sign the petition: www.fimdarevistavexatoria.org.br.
What the law says
In its very first article, the Constitution of 1988 defines the “dignity of the human person” as one of the foundations of the democratic rule of law in Brazil. In article 5, item X, it guarantees the inviolability of privacy and the right to compensation for material or moral damages resulting from the violation thereof. Item XLV, meanwhile, establishes that no punishment may be administered on anyone other than the convicted offender.
Article 5, paragraph III, goes on to assure that nobody shall be subjected to torture or inhuman or degrading treatment. This is also established in article 5 of the Universal Declaration of Human Rights.
Furthermore, article 41, item X, of Brazil’s Prison Sentence Enforcement Law states that visitation by the spouse, partner, relatives and friends is a right of the prisoner, and that the administration may not create unnecessary obstacles to the exercise of this right.
Based on this, the National Criminal and Prison Policy Council (CNPCP) adopted a resolution (No. 9, of June 2006) establishing respect for the dignity of visitors during searches. In addition to requiring the prison facility to have electronic detectors to identify weapons, explosives and drugs, the resolution also determines that manual searches shall only be performed in exceptional circumstances and when there is justifiable suspicion. Moreover, the case filed by Conectas explains that searches should only occur with the consent of the visitor.
International bodies have also expressed their opposition to the procedure. In 2011, the United Nations Subcommittee on Prevention of Torture (SPT) recommended that Brazil ensure that intimate searches comply with criteria of necessity, reasonableness and proportionality. It also recommended that the procedures be carried out under adequate sanitary conditions, by qualified personnel of the same sex and in a manner that respects fundamental rights. According to the SPT, intrusive vaginal or anal searches should be banned.
The banning of these searches, as the UN Subcommittee recommends, is based on article 16 of the Convention against Torture and on rules 19 and 21 of the Bangkok Rules that establish minimum standards for the treatment of women in prison.
Juan Mendes, the UN special rapporteur on torture, has said that intimate searches constitute a “humiliating and degrading” practice, or even “torture, when conducted with the use of violence”.
