New and expanded data published on the Observa Custódia platform has highlighted concerns regarding access to justice in Brazil and protecting individual safeguards during the first hours of detention, a time of heightened risk of torture and ill-treatment.
This second round of data, collected between April-July 2023 from a greater number of custody hearing units across the country, drew attention to a trend that goes against the right of the person in custody to be heard and have their procedural situation assessed in the first hours of detention in a face-to-face hearing with judicial authorities.
Despite a reduction in 2023 of the number of courts that only hold custody hearings by videoconference (in 2022 there were 55% and in 2023 there are 31%), the data demonstrates a growing practice of flexibility among judges to decide whether they will conduct the custody hearings in person or virtually (in 2022, 14% of custody hearing units adopted this mixed model, which rose to 37% in 2023), contrary to the legal mandate. As a result, persons in custody still do not have a guarantee from the State that they will be heard and have their detention evaluated in person in a courtroom.
The new data also indicates that during almost a third (31%) of custody hearings, the person presented to the authorities can be removed from the courtroom during the hearing. This means that they are not able to participate or hear everything that concerns them, including the decision on the maintenance of their detention or any measures related to allegations of torture or ill-treatment, as well as the protection of their personal integrity. This violation of the principles of fair trial and transparency of procedural acts was identified in 22 custody hearing units.
In relation to documentation of allegations of torture or ill-treatment, the second round of data revealed an improvement in the rate of forensic examination reports that arrive in time to be analysed during the hearing. This happened in 70% of custody hearing units in 2023, up from 55% in 2022 from units located in Brazil’s capitals. However, forensic examination was not carried out at all before the person was presented to a judge in 11% of the custody hearing units mapped.
By guiding public debate and offering evidence-based inputs to actors across Brazil’s criminal justice system, the APT and our national anti-torture partners seek to support an ongoing improvement of judicial practices, aligned with the protection and promotion of the human rights of persons deprived of liberty.
In this second phase, Observa Custódia has significantly expanded its territorial scope to encompass 71 custody hearings units. The platform now includes data from courts outside the capitals, building significantly on the 2022 data which was limited to custody hearings held exclusively within the 27 state capitals.
In addition, the platform has new features that allow the user to compare data recorded in 2022 and 2023. The dashboard also allows the visualisation and processing of data on a national level, as well as by region, by state, by capitals or by custody hearing unit.
“This allows the reading of the different contexts in which the hearings are implemented and, therefore, enhances the advocacy efforts of civil society and state authorities for their improvement, using the information available on the platform,” said Sylvia Dias, APT Senior Legal Adviser and National Representative for Brazil.
“Brazil is going through an important stage in the consolidation of custody hearings, especially with the expectation of a full return to face-to-face hearings after the widespread use of videoconferencing platforms during the Covid-19 pandemic,” Ms Dias said.
“It is important to note that the obligation for custody hearings to take place in person is supported by the Brazilian Code of Criminal Procedure, resolutions of the National Council of Justice and the International Covenant on Civil and Political Rights. It was also included in the concluding observations of the UN Committee Against Torture in its most recent cycle of review of the obligations of the Brazilian State.”
ABOUT OBSERVA CUSTÓDIA
Led by APT, Observa Custódia offers greater transparency and accountability to the criminal justice system providing information and tools for external monitoring of judicial practices. This is the second round of data collection carried out through the platform, which systematizes information on the functioning of custody hearings according to ten categories of analysis, which reflect rights and services that must be complied with during the first hours of detention.
Observa Custódia is supported by the Institute for the Defense of the Right to Defense (IDDD), Conectas Human Rights, Asa Branca Criminologia, Office of Legal Assistance to Popular Organizations (GAJOP), Pro Bono Institute, Institute for Studies of Religion (Iser), Global Justice, Network of Communities and Movements Against Violence, Criminal Justice Network, Public Defender of the State of São Paulo and Public Defender of the State of Rio de Janeiro. The data collection is done in partnership with the National Council of Public Defenders (Condege), through the contribution of public defenders who work with custody hearings in several locations throughout Brazil.
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The Brazilian newspaper, Folha de São Paulo has published an article with an assessment of Observa Custódia's second round of data collection.
