In a recent landmark ruling, the Supreme Court of Brazil declared an "Unconstitutional State of Affairs" in the country's penitentiary system, citing “massive violations of human rights in prison units” and the “structural failure of the state to respond effectively and implement measures to prevent recurrence.” This groundbreaking decision prompted the development of a national plan aimed at addressing prison overcrowding, poor conditions in detention centers, and widespread violations of fundamental rights. The National Council of Justice and the Ministry of Justice and Public Security released the first draft of this plan, issuing a public call for contributions from civil society organizations and independent experts. APT has submitted its inputs and recommendations in response to this call.
With more 700,000 people imprisoned, Brazil ranks as the third largest prison population in the world. Brazil´s prison units have been described as “medieval dungeons” by former Ministers of Justice and are under constant scrutiny by universal and Inter-American systems’ main human rights’ bodies.
The judicial proceeding that resulted in the Unconstitutional State of Affairs’ ruling (ADPF N. 347) conducted a broad and in-depth analysis of the country prison policies , addressing the situation in different states based on information collected from authorities and civil society organisations about the conditions of detention and possible solutions.
As one of the immediate outputs of the judicial decision, the Supreme Court ordered the federal government to develop an action plan within six months to address the gross human rights violations widespread in prisons all over the country through a holistic and interinstitutional approach. According to the Supreme Court, “such a state of affairs demands the cooperative action of the various authorities, institutions and the community to construct a satisfactory solution”.
The first version of such action plan – called Pena Justa - was submitted to a public consultation aiming at gathering inputs and recommendations from civil society organizations and independent experts. APT contributed with oral and written inputs.
During a public hearing, the APT presented its take on six main measures focused on the effective implementation of international obligations relating to persons deprived of liberty ( including compliance with OPCAT), occupancy rates in prisons, conditions materials and structure and prevention and non-repetition policies:
- Torture Prevention Mechanisms: Take steps to set up a public policy on the creation and strengthening of preventive mechanisms in Brazil´s 27 federative units, as recently recommended by the UN Committee against Torture.
- Detention control hearings: Ensure in-person attendance of detainees before a judicial authority in a safe judicial setting, secure psychosocial attention for all detainees; publish data on the outcomes of detention control hearings, including indicators concerning detentions deemed illegal.
- Double count of each day served under strenuous detention conditions: Include the regulation and expansion of the case-law providing for the calculation of the length of imprisonment "at the rate of two days per day of actual deprivation of liberty in degrading conditions", in order to mitigate the impact of harsh conditions, in line with provisional measures issued by the Inter-American Court of Human Rights and Brazilian jurisprudence.
- Structural racism: acknowledge and address structural racism against black and indigenous people in Brazil following the holistic approach of transitional justice policies.
- Responding to allegations of torture and deaths of prisoners: establish guidelines for effective investigation and accountability of perpetrators and secure systematic publication of data on torture and death occurrences in custody. Such measures must comply with the Istanbul and Minnesota Protocols.
- International bodies and standards: commit to maintaining permanent invitations for treaty-based bodies and special procedures from the UN and Interamerican System and designate a State agency to monitor compliance with international human rights’ bodies´ recommendations and decisions.
Furthermore, APT also highlighted the need to provide the tools and knowledge to equip judges to carry out monthly inspections of prisons, as required by law. A more systematic presence of judicial authorities in detention centres could lead to a greater level of awareness among justice actors concerning the reality of prison facilities and have an impact on the harshness and length of their sentencing.
Unquestionably, the Supreme Court's acknowledgement of the unlawful prison conditions in Brazil provides a new legal dimension to the debate concerning people deprived of liberty and a long-awaited window of opportunity for vital changes in criminal justice practices. While we await for the final version of the National Plan - yet to be published and endorsed by the Supreme Court - we hope its guidelines will be taken seriously by local authorities and become an effective roadmap to address and reshape the deeply troubled reality affecting the country's prison system.
