Created as a response to the mass-incarceration system, custody hearings face challenges, distortions and local specificities through its expansion to all regions of a continental country
Since 2011, the IDDD has advocated, in the Congress and in the institutions of the justice system, the creation of custody hearings, acting to make them effective. From 2015 on, through an agreement with the National Justice Council (CNJ) and the Ministry of Justice, we started to monitor the implementation of the then new institute in a pilot project in the state of São Paulo. The initiative was then expanded to all regions of Brazil. Since then, we have followed its implementation, with the publication of three reports. The most recent one, from 2019, brings the result of monitoring custody hearings in 13 cities in nine states (AL, BA, DF, MG, PR, PE, RJ, RS and SP). Named “The End of Freedom: the urgency of rescuing the meaning and effectiveness of the custody hearings”, the study revealed the extinction of the granting of unrestricted freedom – which means, without the imposition of precautionary measures – which is the first step into the criminal justice system. Besides generating diagnostics, the IDDD has promoted meetings bringing together public defenders, judges and prosecutors directly involved in the implementation of custody hearings in different regions of Brazil, to discuss its improvements.
National Council of Justice’s pilot project and the IDDD’s monitoring
A pilot project, conceived by the National Council of Justice (CNJ) with the support of the IDDD, of the Ministry of Justice, of the Courts of Justice, and of state governments, was put into practice in February 2015 – when the capital of the state of São Paulo began to hold custody hearings. The initiative consisted of the creation of a multidisciplinary structure in the state Courts of Justice, which would receive arrested people right after their detention. A judge would analyze the need for provisional arrest or alternative precautionary measures, in order to comply Brazilian judicial practices to the Pact of San Jose (American Convention on Human Rights) and to the International Covenant on Civil and Political Rights (both of which establish that, after detention, the person in custody must be promptly presented to a judge. The hearings began to take place in the criminal Courts of Justice, within 24 hours after the arrest, with the presence of a lawyer of public defender. In April 2015, the IDDD signed a Technical Cooperation Agreement with the CNJ and the Ministry of Justice that gave rise to the “Custody Hearings Project”. The scope has then become national and we were responsible for monitoring and analyzing the implementation of the pilot project, systematizing information about its impacts on the justice system. In those places outside of São Paulo, we monitored the development of custody hearings through information sent by the Courts of Justice and with the help of local partners (organizations, universities, or study groups) that engaged in the monitoring in loco, noting several specificities about the implementation in different places. The results of the study can be seen in a report published in December 2017.
Custody hearings in the Federal Supreme Court
In September 2015, the Federal Supreme Court ordered custody hearings to be held within a maximum of 90 days throughout the national territory, as one of the necessary measures to mitigate the consequences of the collapse in the Brazilian prison system (ADPF n. 347).
Public Hearing at the Inter-American Commission on Human Rights
Also in October 2015, the IDDD; Conectas Human Rights; the Earth, Labor and Citizenship Institute (ITTC); the Global Justice; and the International Human Rights Clinic of Harvard University were admitted to a public hearing at the Organization of American States (OAS) Office in Washington during the 156th regular session of the Inter-American Commission on Human Rights. The meeting dealt with the results achieved by the “Custody Hearings Project”. In the event proposed by the Brazilian State, the IDDD was represented by its then executive director Isadora Fingermann, who brought monitoring data, as well as recommendations for the improvement of the measure.