Federative Republic of Brazil
Brazil provides considerable rights to its citizens and any individual within its borders. Its Federal Constitution and statute notably provide some of the most progressive protections in the world for those arrested for a crime or in pre-trial detention; however, these protections are largely ignored and lengthy detentions frequently occur in the country. The country also faces an overcrowded prison population and a lack of resources to meet the demand of the constitutional right to free counsel.
Over the past two decades, Brazil’s prison population has grown to be the fourth largest in the world, upwards of 40 percent of which have yet to be before a judge. In 2013, Human Rights Watch said of the situation in Brazil:
Many Brazilian prisons and jails are severely overcrowded and plagued by violence. The country’s incarceration rate increased almost 30 percent over the last five years… The adult prison population now exceeds half a million people—43 percent more than the prisons were built for… Delays within the justice system contribute to the overcrowding. Nearly 200,000 inmates are in pretrial detention. In Piauí state, 66 percent of detainees are in pretrial detention, the highest rate in the country.
A United Nations report found, “a backlog in court cases caused substantial and serious delays in trials,” and that “the presumption of innocence enshrined by the Constitution seems to be a practice that has been abandoned by judges…[which resulted in] an increasing number of people in pretrial detention.”
Continued international and domestic pressure has resulted in legislative reforms, but the challenge facing Brazil is ensuring effective implementation of their laws.
General Status of Rights in Brazil
Brazil is a federal republic with twenty-six states and a federal district, and has a population of approximately 190 million. The federal districts are subdivided into approximately 5,500 municipalities, which are autonomous politico-administrative units governed by mayors
(known as prefeitos) and municipal councilors (known as vereadores). The states have their own constitutions and are autonomous within the framework of federal constitution.
The 1988 Federal Constitution grants broad powers to the federal government, consisting of an executive, legislative, and judicial branch. The independent judicial branch is headed by the Supreme Federal Court. The judiciary overall is made up of state and federal courts.
Despite protections written into the constitution and statute, the protections afforded to prisoners are largely ignored. The reason for this is twofold; first, the judicial system is lacking the needed resources to abide by the timelines setout out by statute; and second, there is public pressure to keep individuals detained, even before being tried and convicted, due to the high crime rate experienced throughout much of the country.
The conditions for a detained individual can be perilous. One report says, “The rate of incarceration in Brazil has tripled in the past 15 years and prisons are severely overcrowded…Poor and inhumane conditions of detention are commonplace. Facilities hold many prisoners who commit petty, nonviolent crimes, and people wait months, sometimes years in prison. In the end, many of these people receive non-custodial sentences.”
The State Department recommends that Americans traveling to Brazil carry the contact information of the nearest U.S. Embassy or Consulate and reminds that, “according to the Vienna Convention on Consular Relations, and customary international law, if you are arrested in Brazil, you have the option to request that the authorities alert the nearest U.S. Embassy or Consulate.”
Domestic Laws Governing Pretrial Detention
A 2014 United Nations report details an individual’s Constitutional rights with regard to detention:
At the national level, the Constitution of the Federative Republic of Brazil of 1988 affirms, in its Title I, that the dignity of the human person is a fundamental principle of the State and central to its commitment to the rule of law. The Constitution also indicates that the State’s international relations are governed by the prevalence of human rights.
The Constitution provides protection for core fundamental rights, including the right not to be arbitrarily deprived of one’s liberty. Title II of the Constitution defines the fundamental rights of all persons, and outlines the State’s commitment to protecting those rights.
The Constitution also provides, inter alia, for the right to free legal assistance for the indigent; the right of arrested persons to specific judicial remedies, such as habeas corpus; the right of an arrested person to be informed of his or her rights; the right to have a judicial order revoking an illegal arrest and the right not to be imprisoned where the law permits release on one’s own recognizance.
The Constitution prohibits arbitrary detention. Only judges may decide on the validity of any deprivation of liberty. Arrests must be made with a warrant, with the exception of suspects caught in the act. Police officers must bring a person detained before a judge no later than the day after the person’s arrest. They may arrest an individual only on the basis of a judicial warrant issued by a competent judicial authority, with the exception of cases in which the individual is caught in the act, also known as flagrante delicto. Suspects must be informed of their rights at the time of the arrest or before being taken into custody for interrogation. Arrest warrants must be based on sufficient evidence.
The same 2014 United Nations report mentioned above details federal statute related to detention:
The Criminal Procedure Code of 1941 was substantially reformed in 2011. It regulates preventive imprisonment and detention. Its article 283 establishes that no person may be imprisoned except for flagrante delicto or if decreed in writing, with due justification by the competent judicial authority.
Provisional detention is limited to five days under specific conditions, although a judge may extend this period. Temporary detention is for an additional five-day period for processing. Preventive detention is for an initial period of 15 days.
Article 311 of the Criminal Procedure Code establishes that preventive detention may be ordered by the judge, ex officio, as a result of a criminal lawsuit or upon the request of the Public Prosecutor, the plaintiff or attendee, or by a representative of the police authority. According to article 313, preventive detention may also be ordered as a guarantee for public order, economic order or if deemed convenient for criminal instruction.
If a detainee is caught in flagrante delicto, the police are required to inform a judge thereon within 24 hours. Use of force during arrest is prohibited unless the suspect attempts to escape or resists. The court must charge the individual at the latest by the end of the day following the arrest. The chief judicial officer determines whether it should proceed and, if so, assigns it to a State prosecutor, who decides whether to issue an indictment.
The police inquiry is non-accusatorial and is conducted confidentially. At the end of the police inquiry, when the police have gathered enough information, the evidence is handed over to a judge, who then passes the case to a public prosecutor, who reviews the file and decides whether to file charges.
The judge may impose precautionary measures, including detention. Detention is imposed in order to (a) uphold the public or economic order; (b) allow the criminal investigation to proceed without inhibition; and (c) guarantee the future application of criminal law.
Detainees arrested in flagrante delicto must be charged within 30 days of their arrest; other defendants must be charged within 45 days. This period may be extended. Bail is available for most crimes, but is granted infrequently.
The law does not provide for a maximum period of pretrial detention, although it is estimated at being usually between 80 and 120 days. Authorities may hold detainees for the duration of the investigation and subsequent trial, subject to judicial review. If a court acquits a defendant who was previously held in detention, the Government must compensate the defendant for financial losses as well as for moral prejudice incurred due to incarceration.
The Constitution provides for the right to a fair and public trial. The law entitles a detainee to prompt access to an attorney. Defendants and their attorneys have access to all court-held evidence related to their cases.
Defendants enjoy the presumption of innocence. They have the right to confront and question witnesses. Defendants have a right of appeal to State superior courts and to appeal State court decisions to both the Federal Superior Justice Court and the Federal Supreme Court on constitutional grounds.
Cases involving capital crimes are tried before a jury. Judges try those accused of lesser offences. Confessions are allowed as evidence, with few restrictions on their use in courts.
Federal Law: Jurisdiction
Article 92 of the Constitution establishes that the judiciary is independent and that it is made up of the Federal Supreme Court of Justice, the Superior Court of Justice, the federal regional courts, federal and State district courts, and judges, along with other specialty courts. Additionally, states have the authority to organize their own justice system within the federal system, but they must abide by principles set forth in the Federal Constitution.
The penal policy of Brazil is governed by federal law. The Ministry of Justice oversees the two agencies most involved: (1) the Penitentiary Department (Departamento Penitenciário or DEPEN) which is charged with the practical issues like funding for new prison construction, and (2) the National Council on Criminal and Penitentiary Policy (Conselho Nacional de Política Criminal e Penitenciária), which focused on the guiding policy related to detainment.
Despite the clear federal law and federal jurisdiction, there is no centralized prison authority with executive powers with regards to the penal policy of Brazil. Thus, the administration of the federal laws and guidelines falls primarily to the states. According to the International Bar Association, “The state governor usually manages the prison system via his or her secretary of justice, while the governor’s secretary of public security is generally in control of policing, which includes responsibility for police stations and lockups. The structure of state penal systems also does not follow a single model.”
Law 12.403, which passed the Brazilian Congress in July 2011, puts forth nine alternatives to pretrial detention, such as bail and electronic monitoring. Additionally, the law says pretrial detention is not allowed in cases of first time offenders accused of nonviolent crimes.
International or Multilateral Treaties Concerning Arbitrary Detention
A 2005 amendment to the Federal Constitution says international human right norms have constitutional status provided that they have been approved in legislative proceeding. This accounts for a considerable list of rights granted under the constitution. Brazil is an original signatory to the Universal Declaration of Human Rights, and has signed onto numerous international agreement regarding human rights and pretrial detention including:
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Additionally, Brazil has ratified the following inter-American treaties on human rights:
- American Convention on Human Rights
- Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ‘Protocol of San Salvador’
- Inter-American Convention to Prevent and Punish Torture
Brazil has also recognized the competence of the Inter-American Court of Human Rights and declared its judgments binding. This Court has interpreted the pretrial detention of the American Convention of Human Rights as follows:
Article 7(5) of the Convention guarantees the right of every person to be tried within a reasonable time or to be released without prejudice to the continuation of the proceedings. This right imposes temporal limits on the duration of pre-trial detention and, consequently, on the State’s power to protect the purpose of the proceedings by using this type of precautionary measure…. When the duration of pre-trial detention exceeds a reasonable time, the State can restrict the liberty of the accused by other measures that are less harmful than deprivation of liberty by imprisonment and that ensure his presence at the trial. This right also imposes the judicial obligation to process criminal proceedings in which the accused is deprived of his liberty with greater diligence and promptness.
Case Examples / Practical Observations
International Bar Association – Problems with Enforcement
The International Bar Association described the situation in Brazil as follows:
One of the paradoxes of Brazilian society is that while the state formally adheres to liberal democratic norms, the bodies tasked with upholding them have frequently disregarded them. Successive Brazilian governments have a long history of implementing reforms at the formal level, while maintaining policies, practices, and institutions that rested on a denial of basic rights. This context is crucial for an understanding of the current challenges facing those involved in criminal justice reform.
United Nations Human Right Council – Pretrial Imprisonment
In testimony before the United Nations Human Rights Council, an attorney from the human rights group Conectas testified that one of the major problems in Brazil is the lack of a detention hearing. She said:
Brazil is the only Latin American country not to hold detention hearings, which, among other purposes, have the effect of reducing the illegal use of pre-trial imprisonment. In other words, many people who could benefit from alternatives to pre-trial detention remain in custody for several months, serving an “advance sentence” that often exceeds the conviction for the crime they were arrested for in the first place.
Conectas: Conectas is a non-profit NGO dedicated to “the realization of human rights and consolidation of the Rule of Law in the Global South.” It works on, among other issues, human rights abuses occurring in Brazil’s prisons and pre-trial detention centers.
Address: Rua Manuel da Nóbrega, 76 – Bela Vista, São Paulo – SP, 01311-000, Brazil
Phone: +55 11 3884-7440
Instituto Sou da Paz: Instituto Sou da Paz is an NGO dedicated to reducing the levels of violence throughout Brazil. It does work with prison reform and violence in detention.
Address: R. Luís Murat, 260, São Paulo – SP, 05436-050, Brazil
Phone: +55 11 3093-7333
Pastoral Carcerária (Portuguese only): Pastoral Carceráia is a nonprofit NGO that was heavily involved in advocating for the 2011 pretrial detention alternative legislation discussed above.
Phone: (11) 3151-4272
RIO DE JANEIRO
Phone: (21) 2551-6107
Phone: (85) 3388-8718
The Secretariat for Human Rights of the President of the Republic (Portuguese only): Known in Brazil as the Secretaria de Direitos Humanos da Presidência du Republica, the governmental office is responsible for coordinating tasks to promote and protect human rights.
Address: Setor Comercial Sul – B, Quadra 9, Lote C, Edifício Parque Cidade Corporate, Torre A, 10º andar, Brasília – Distrito Federal – 70308-200
Phone: (61) 2027-3900
The aim of the group is to “conduct research into prisons and imprisonment; to develop and disseminate a body of knowledge about the principles on which the use of imprisonment should be based; and to inform improvements in prison policies and practice, within a human rights framework.”
The U.S. Embassy in Brasilia provides a useful list of attorneys in Brazil willing to provide legal assistance to private American citizens and a list of translators available to hire.
An American arrested in Brazil has the option to request that the authorities alert the nearest U.S. Embassy or consulate. If arrested, the U.S. Embassy provides the following emergency contact information to its embassy and consulates:
(61) 3312-7000 during Embassy’s working hours (8:00 AM to 5:00 PM)
(61) 3312-7400 or (301)-985-8850 after hours
(81) 3416-3050 during Consulate’s working hours (7:00 AM to 4:00 PM)
(81) 99916-9470 or (81) 3416-3060 after hours
Rio de Janeiro:
(21) 3823-2000 during Consulate’s working hours (8:00 AM to 5:00 PM)
(21) 3823-2029 after hours
(11) 3250-5000 during Consulate’s working hours (7:30 AM to 4:30 PM)
(11) 3250-5373 after hours
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