In April 2021, the National Congress overturned the passages vetoed by President Jair Bolsonaro in the so-called “anti-crime” package, a 2019 bill that made a series of changes to public security legislation.
One of the passages that lawmakers reinserted into the text of the bill approved by Congress concerns the requirement for detainees to be presented before a judge within 24 hours of their arrest. The president’s veto would have enabled pre-trial custody hearings to be held by video conference.
The overturning of this veto came in response to demands from civil society organizations that work to combat torture. In 2020, for example, several organizations staged the campaign #TorturaNãoSeVêpelaTV (#YouCantSeeTortureOnTV) against remote hearings.
Besides the “anti-crime” package, the CNJ (National Justice Council) also decided, in November 2020, that custody hearings could be held by video conference. The decision was justified by the Council as a preventative measure during the Covid-19 pandemic.
Established in 2015, the custody hearing is a procedure that must occur within 24 hours after an arrest, the main purpose of which is to assess the legality of the detention and whether the person in custody has been subjected to acts of torture or other types of degrading treatment during the police contact.
In response to the vote by the National Congress, the AMB (Association of Brazilian Judges) took the case to the Supreme Court through ADI (Direct Action of Unconstitutionality) No. 6841, which challenges the decision of the Lower House of Congress and the Senate to overturn of the presidential veto. As such, the organization is defending the possibility of remote custody hearings.
In the case, Supreme Court Justice Nunes Marques granted an injunction in June 2021 dispensing with the need for state governments to hold in-person custody hearings. After Justice Gilmar Mendes requested the case be heard by an in-person session of the Court, the judgment of the injunction granted by Justice Nunes Marques was suspended.
The organizations Conectas, IDDD, Pro Bono Institute, ITTC, GAJOP and National Decarceration Agenda together petitioned to be admitted in ADI 6841 as amicus curiae. They argue that one of the essential purposes of custody hearings is to “investigate high-handedness committed by agents of the State during arrests”, which requires that the detained persons be physically present.
- Case: ADI 6841
- Court: Supreme Court
- Status: Removal of virtual judgment and pending inclusion again on the court’s schedule
- 05/04/2021 – Initial Petition by AMB (Association of Brazilian Judges)
- 06/28/2021 – Injunction partially granted by the rapporteur of the case, Justice Nunes Marques
- Inclusion on the list of cases to be heard in an extraordinary virtual session from 06/30/2021 to 07/01/2021.
- 06/29/21 – Request by Conectas for admission as amicus curiae
- 06/30/2021 – Start of the Virtual Judgment
- 07/01/2021 – Following a request by Justice Gilmar Mendes for the matter to be heard by an in-person session, the case is removed from the virtual session