Suspended in much of Brazil since the beginning of the pandemic, in March of last year, custody hearings have been gradually and intermittently resumed amidst an intense debate about their virtualization through the use of videoconferencing.
With the shutdown and virtualization, the number of this type of audience dropped from 222,000 in 2019 to 66,000 in 2020. Until June of this year, there were only 19,000, according to data from the National Council of Justice (CNJ).
According to a report by the Criminal Justice Network, released this Thursday afternoon (11), the process of making these hearings remote means, in practice, their dismantling.
“During the pandemic, there were several initiatives by the Judiciary and the Legislature to make the custody hearings more flexible and held by videoconference”, says Janine Salles de Carvalho, executive secretary of the Criminal Justice Network.
“We entered a battle for this institute not to be virtualized because that compromises its purpose. It is not possible to detect torture through a screen.”
Created in 2015 to ensure the fundamental rights of prisoners, the custody hearing consists of the presentation before the judge, within 24 hours, of whoever was arrested in flagrante delicto or by arrest warrant.
Accompanied by a lawyer or defender, the arrested person is heard by the judge, who can maintain their prison, converted into preventive, or replace it with precautionary measures, or release them, in addition to checking for signs or reports of torture or ill -treatments.
Its implementation responds to issues such as mass incarceration in Brazil, which has the third largest prison population on the planet, the overcrowding of the prison system and the high percentage of people imprisoned provisionally without a conviction.
Hearings regulate the prison system’s gateway and are identified as the main contributing factor to the 11% drop in the number of pre-trial prisoners, which represented 37% of the prison population in 2015 and 30% in 2019.
The reduction avoided 277 thousand unnecessary arrests and a saving of at least R$ 13.8 billion to the public coffers by eliminating the need for new vacancies, without considering the cost.
Allegations of mistreatment by police officers at the time of arrest have more than doubled since custody hearings were instituted, from 2.4% of cases in 2015 to 6.2% in 2019.
Studies indicate, however, that there is underreporting of violence suffered in the act of arrests. Occurrences in 13 cities monitored under the supervision of the Institute for the Defense of the Right to Defense (IDDD) indicated that almost 24% of those arrested claimed to have suffered violence by police officers.
A survey carried out by the Public Defender of Rio de Janeiro based on data from the CNJ pointed to the impact of the suspension of in-person hearings.
From March to August 2020, only 0.83% of the records indicated the occurrence of torture, against 38.3% of allegations of ill-treatment made during in-person custody hearings between September 2017 and 2019.
This was the case with Marta (not her real name), presented to a judge a few days after the resumption of in-person custody hearings in Rio, in August 2020. She initially denied having suffered ill-treatment, even though she exhibited a cornered posture and an injury in the head.
Suspicious, the judge asked everyone to leave the room except the prosecutor and the defender. He explained to Marta that the confidentiality of the information would be guaranteed. More confident, she reported, through tears, that eight police officers had broken into her house, assaulted and threatened them in search of drugs.
“This case is very illustrative of the importance of having custody hearings in person, because the judge can transmit to her a security that is impossible to be passed on a screen”, evaluates Mariana Castro, coordinator of the custody hearings nucleus of the Public Defender’s Office of the Rio de Janeiro.
“Alone in a room, not knowing if someone is listening behind a door or a thin wall, and if there will be any retaliation once the camera is turned off, reporting becomes more difficult.”
According to the defender, it is common for victims of abuse to present themselves intimidated, frightened, traumatized or even embarrassed. “It is essential that the magistrate has direct contact with the person because there are nuances and subtleties, in posture, in the tone of voice, which cannot be properly perceived through screens.”
The use of videoconferencing for custody hearings during the Covid pandemic was even vetoed in May 2020 by the then president of the CNJ, Minister Dias Toffoli. He argued that international instruments —the International Covenant on Civil and Political Rights and the American Convention on Human Rights— emphasize the right to be present.
In September 2020, Minister Luiz Fux, already president of the CNJ, changed the understanding and edited the resolution that regulates videoconferencing during the pandemic, with the use of more than one camera or a 360-degree camera inside the room, in addition to a camera outside the room.
In the Legislative, the restriction was contained in the so-called anti-crime package (law 13964/2019), but the paragraph that prohibited the use of videoconferencing in custody hearings was vetoed by President Jair Bolsonaro (no party).
In April 2021, Congress overturned the president’s veto, but in June, Minister Nunes Marques’ preliminary decision in action by the Brazilian Magistrates Association (AMB) authorized the use of videoconferencing during the pandemic.
Six of the 11 ministers confirmed the decision, but the trial was interrupted by Minister Gilmar Mendes’ request for views.
AMB 2018 survey showed that 50.3% of the judges who act in the first instance are in favor of custody hearings. In second instance courts, the index rises to 80.9%; in the superior courts, it goes to 88.2%.
In a statement, the president of the AMB, Renata Gil, affirms that the holding of custody hearings by videoconference reduces costs, by reducing displacements and the use of police forces, and speeds up the processing of cases. She also says that the appeal prevents the perpetuation of abuse and allows magistrates to identify any signs of ill-treatment.
For Janine, from the Criminal Justice Network, the cost reduction argument, already mentioned by Minister Fux, is fallacious. “A study of the economic impact of this change was never presented, which implies the acquisition of image and sound equipment, in addition to quality internet, and employees for its operation and maintenance”, he says.
The Network’s report raised bids in eight states of the country for the acquisition of cameras, microphones and other equipment that, together, imply a cost of around R$ 40 million. In Maranhão alone, BRL 7.1 million will be invested in technical support, monitoring and infrastructure.
“Investments are being made in the states, and there is pressure to use videoconferencing. Our fear is that this virtualization process will become irreversible. And that is destroying the foundation of custody hearings.”