Custody hearings lower rates of pretrial detention, but show structural problems in Brazilian criminal justice system

By Mirte Postema

Headed DPLF’s Judicial Independence Program from 2009 to 2015. She is currently Fellow for Human Rights, Criminal Justice and Prison Reform in the Americas at the Stanford Human Rights Center at Stanford Law School.

Originally published in

Versión en español


Pretrial detention should be an exceptional measure. According to the inter-American system of human rights (comprised of the Inter-American Commission on Human Rights, based in Washington, D.C., and the Inter-American Court on Human Rights based in San Jose, Costa Rica), States are only allowed to apply it for procedural purposes: when there is a risk that the defendant might flee (and the case might thus not be brought to justice), and/or where proceedings (such as the investigation of the case) might be affected. Even in such situations—which must be corroborated by facts, not suppositions—the application of pretrial detention must be necessary, limited, and proportional, and should be reviewed periodically. The mere existence of indications of guilt of the defendant is not sufficient for the application of pretrial detention.

However, despite the fact that these standards have been applicable for more than two decades, the Inter-American Commission on Human Rights concluded in its 2013 Report on the Use of Pretrial Detention in the Americas that the application of pretrial detention continues to be the norm, rather than the exception, in the region.

That is why it was good news when, just over a year ago (at the end of February 2015), the Brazilian National Judicial Council (CNJ) started a pilot project in the city of São Paulo to organize so-called custody hearings. The initiative was the result of a collaboration between the CNJ, the Ministry of Justice and a Brazilian NGO called IDDD(Instituto de Defesa do Direito de Defesa – Institute for the Defense of the Right to Defense), and aimed to apply international law, transform the criminal justice system, stimulate restorative justice approaches, and collect data about the impact of alternative sentencing in Brazil.

In custody hearings, people detained in flagrante delicto are brought before a judge within 24 hours. This includes cases in which a person can be linked to a crime relatively shortly after its occurrence. However, no time limits are given, so judges can interpret this provision broadly. The judge, after having heard the defendant, the public prosecutor, and the defense counsel (a public defender or a private lawyer), decides whether the defendant will be allowed to await trial in freedom (posting bail or complying with provisional measures), or whether pretrial detention will be applied.

The custody hearings are still in an initial phase—even though they have beenimplemented throughout the country, their coverage beyond state capitals and outside of normal working hours is still limited. However, in May 2016, all jurisdictions in the country are required to organize these hearings.

The Stanford Human Rights Center, together with graduate student Thiago Reis, is monitoring the impact of these custody hearings in the city of São Paulo. Brazilian human rights organizations, such as IDDDInstituto Sou da Paz, and Conectas, do this at a larger scale.

The initial results of the custody hearings are promising. Data from the Judicial Councilindicates that over 49,668 hearings have been held in the country, and that in 24,641 cases (or 49.61%), a provisional measure other than pretrial detention was applied. This is significant, especially for those 24,641 people and their families.

However, there are issues that need to be addressed. After all, the application of pretrial detention in just over 50% of cases means that in Brazil, pretrial detention continues to be the norm, rather than the exception—in violation of inter-American standards. Judges continue to have an excessively punitive focus. Additionally, the communication of all judicial actors—judge, prosecutor, and counsel—with the defendant can, and should, be improved. And in interviews, public defenders voiced concerns about the lack of both privacy and time to speak with defendants before the hearing.

At the same time, the custody hearings have made several structural problems in the Brazilian criminal justice system more visible. Because a defendant appears right after his or her detention, the precarious living situations of some—as evidenced by soiled, ripped clothing and body odors—are much more apparent to actors like judges and prosecutors, who were less exposed to defendants before the custody hearings were implemented. The criminalization of poverty has a face.

Additionally, custody hearings have made police brutality much more detectable. According to Ricardo Lewandowski, President of Brazil’s Supreme Court (Supremo Tribunal Federal) and Judicial Council, more than 2,700 cases of torture or mistreatment have been identified during the custody hearings. However, the Public Defender’s Office for the state of São Paulo registered even more worrying numbers: 44% of people in pretrial detention reported to have suffered violence during their detention. And judges in other states, like Ceará and Espiritu Santo, indicated in interviews that some 40% of people brought before them indicated to have suffered such violence, too. It is essential that these cases are adequately reported, investigated, and brought to justice.

The custody hearings are an important first step to bringing the Brazilian criminal justice system in compliance with the country’s international obligations. Judicial authorities should continue to improve the dynamics of the hearings, as well as address the structural problems that have pained the justice system and its subjects for far too long.


Acerca de Justicia en las Américas

Este es un espacio de la Fundación para el Debido Proceso (DPLF, por sus siglas en inglés) en el que también colaboran las personas y organizaciones comprometidas con la vigencia de los derechos humanos en el continente americano. Aquí encontrará información y análisis sobre los principales debates y sucesos relacionados con la promoción del Estado de Derecho, los derechos humanos, la independencia judicial y el fortalecimiento de la democracia en América Latina. Este blog refleja las opiniones personales de los autores en sus capacidades individuales. Las publicaciones no representan necesariamente a las posiciones institucionales de DPLF o los integrantes de su junta directiva. / This blog is managed by the Due Process of Law Foundation (DPLF) and contains content written by people and organizations that are committed to the protection of human rights in Latin America. This space provides information and analysis on current debates and events regarding the rule of law, human rights, judicial independence, and the strengthening of democracy in the region. The blog reflects the personal views of the individual authors, in their individual capacities. Blog posts do not necessarily represent the institutional positions of DPLF or its board.

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