Brazil: Prison Crisis Spurs Rights Reform - part 2 | WPN World People News

The Alleged Bonde dos 40 Party

On the night of January 16, 2015, police raided a party in São Luis after receiving anonymous calls saying it had been organized by Bonde dos 40. Agents said they found two guns and some drugs in the house, although they could not ascertain their owners. They let women and minors go, and arrested 36 young men, a woman who attended the party told Human Rights Watch. The police charged all of them with illegal gun possession, instigation of drug use, and corruption of minors. A judge ordered pretrial detention for all of them after reviewing the police file, but did not see any of them in person.

Tagging by the Bonde dos 40 (Streetcar of the 40, B40) gang at the entrance of the Liberdade neighborhood in São Luis to mark its territory.

Human Rights Watch interviewed two of the detainees and the relatives of nine others. All insisted that the party had nothing to do with Bonde dos 40 and that neither they nor their relatives were affiliated with the gang.

Nonetheless, when they arrived at Pedrinhas, the detainees asked to be placed with members of Bonde dos 40. One of the detainees, GH, said they were from a neighborhood where that gang is active and the media had wrongly identified them as members of Bonde dos 40 the day of the arrest. “We are all afraid of being killed” if sent to a cell with PCM members, he said. GH, 23, is married and has a child. He works for a delivery company.

Another detainee was RC, 20, who was doing a course on Port Logistics at Senai, a professional school, but would not get his diploma because he was absent for more than three days due to his incarceration, said his mother, who owns a pet shop. He decided to go to the party at the last minute, when friends called him as he was going to play soccer, she said. He plans to go to college and study mechanical engineering, his mother said. “I never saw him use drugs,” she said. “He likes going to parties. He loves to dance.”

HY, 27, another of the detainees from the party, is a mason for a contractor of Vale do Rio Doce, a multinational mining company. He is married and has two children. He said he was afraid of losing his job because he was in prison. He said he did not have a lawyer.

BT, whose 18-year-old nephew was detained, said that once they were released, the men would have to be very careful not to enter neighborhoods dominated by PCM by mistake. “After this incident, their daily lives won’t be the same, only if they move out of the state,” she said. “They will lose the freedom to come and go as they please.”

Police in Maranhão carried out mass arrests at two other parties that it said were organized by Bonde dos 40 between September 2014 and January 2015.

Custody Hearings in Maranhão

In response to the wave of violence in the state’s prisons, a committee that included representatives of the governor’s office, the judiciary, the Public Defender’s Office, the Prosecutor’s Office, and the police proposed initiatives to address the roots of the problem, including prison overcrowding. One of their proposals was for custody hearings for detainees who have been arrested in the act of committing a crime.

Although Brazil’s authorities were already obliged under international law to hold these hearings, the pilot program found that the hearings also help reduce pretrial prison populations. The hearings prevent arbitrary detention and allow independent judges to make evidence-based decisions on the necessity and legality of keeping a particular suspect incarcerated.

Under the rules established by Maranhão’s state judiciary, custody hearings are to be carried out within 48 hours of arrest. At the hearings, judges rule only on whether pretrial detention is warranted under Brazilian law, not on the likely guilt of the accused. Under Brazilian law, before a judge makes a decision to hold an accused in pretrial detention, the judge must conclude that the suspect may tamper with evidence or threaten witnesses, is a flight-risk, is a threat to “public order” or the national “economic order,” or has already violated probation rules.

Pretrial detention can be considered only if the suspect is accused of a crime that carries a sentence of more than four years in prison, or if the person has previously been convicted of a crime, faces charges of domestic violence, or there are doubts about the detainee’s identity. Judges in Maranhão also have the option of requiring a suspect to wear a GPS tracking anklet and to sleep in their own home as conditions for pretrial release.

From October 17 through December 5, 2014, 84 custody hearings were held in the state, according to the first official report about the initiative. The judges ordered pretrial detention for 43 suspects and released the other 41, nearly 50 percent of the total. During the same time period, judges released 10 percent of detainees who did not have custody hearings.

Several judges said that the lack of custody hearings led to the detention of people who should have been granted conditional release. These included detainees charged with minor offenses for which they would have to serve no time if convicted.

For instance, CV spent more than two months in jail on a charge of buying a stolen motorcycle, even though he had no prior convictions and his sentence would not have included prison time if he had been convicted. When he was arrested, a police chief set bail of 724 reais (US$262), which CV could not pay, his case file said. The Public Defender’s Office petitioned for his release, and he was freed on probation. His stay in jail cost taxpayers about 5,000 reais ($1,811).

In the case of the men arrested at the alleged Bonde dos 40 party, judges took an interest in the case after they had been in jail for almost two weeks and arranged for custody hearings. The presiding judge determined that the men should be released on probation as they did not pose any threat to society. He noted that the police had provided no evidence linking the detainees to gang activity, nor to the guns and drugs allegedly found at the party.

The Right to a Custody Hearing Under International Law

The right to be brought before a judge without delay is enshrined in treaties ratified by Brazil, including the ICCPR and the American Convention on Human Rights. The United Nations Human Rights Committee, which is responsible for interpreting the ICCPR, has advised states that the requirement applies “in all cases without exception” and held that the delay between the arrest of an accused and when he is brought before a judicial authority “should not exceed a few days,” even during states of emergency. The detainee “must be brought to appear physically before the judge,” the committees said, as “the physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received in custody.”

Other countries in Latin America have incorporated this right into their domestic law. For instance, in Argentina in cases of arrest without a judicial order, the detainee must be brought to a competent judicial authority within six hours.

In Chile, in cases in which a person is arrested while committing a criminal act, the detainee must be presented within 12 hours to a prosecutor, who must either release him or bring him before a judge within 24 hours of the arrest. In Colombia, the detainee caught while committing a criminal act must be brought before a judge within 36 hours. In Mexico that period is 48 hours.

In contrast, Brazil’s criminal procedure code requires that when an adult is arrested in the act, only the police files of the case must be presented to the judge within 24 hours, not the actual detainee. Judges evaluate the legality of the arrest and make the decision about continued detention or other precautionary measures based solely on written documents. They only see the detainee at their first hearing, often months after the arrest.

The Custody Hearing as a Safeguard Against Torture

Maranhão’s rules for custody hearings also instruct judges to observe signs of physical or mental mistreatment of detainees. Judge Fernando Mendonça said he found signs of mistreatment in three cases during the custody hearings he conducted from October until the end of January 2015, which he referred to the Prosecutor’s Office. Those physical signs of possible torture would have most likely have disappeared before a judge could see the detainees if they had not been granted custody hearings.

Torture remains a serious problem in Brazil. In previous research on this issue, Human Rights Watch found compelling evidence in 64 cases of alleged abuse since 2010 that security forces or prison authorities engaged in cruel, inhumane, or degrading treatment of people in their custody. Abuses often occur in the first 24 hours of police custody. The National Human Rights Ombudsman’s Office received 2,374 complaints of torture and cruel, inhuman, or degrading treatment in prison or in police stations through a telephone service in 2014, an increase of more than 25 percent over 2013, according to figures provided to Human Rights Watch.

The Future of Custody Hearings in Brazil

Under Maranhão’s pilot program, custody hearings are only held in São Luis and ordinarily only for people detained during the daytime. Judges who cover nights and weekends are reticent to carry out custody hearings, alleging it is hard to combine them with their regular workload, the first official report about the program said. The report said that this results in unequal treatment and that custody hearings should be held in all cases. The judges who conducted the pilot program told Human Rights Watch that they hope to expand custody hearings to the rest of the state and to all cases in São Luis in the next few years.

The National Council of Justice has urged other states to start holding custody hearings. It supported starting the pilot program in São Paulo, which also had the backing of the Justice Ministry. The program began on February 24, 2015. The hearings currently are being held in the center and southern part of São Paulo, but are to be expanded to the rest of the city in a few months, the National Council of Justice said. In addition, judicial authorities in the state of Piauí have said they will create a commission to prepare a custody hearings program.

The draft bill before Congress would require custody hearings within 24 hours of arrest nationwide. The bill says that a prompt hearing before a judge guarantees the physical and psychological safety of detainees, prevents torture, and allows judges to monitor the legality of the detention.

Source: Human Rights Watch