The abusive search is an invasive and degrading procedure to which family members of detainees are subjected when they visit prison facilities. Mothers, daughters, sisters and wives of prisoners are required to strip naked, squat three times over a mirror, contract their muscles and open their rectum and vagina with their fingers so agents of the State can perform searches for items in their private parts.
The issue of abusive searches is the subject of Special Appeal 959620 with General Repercussion (Topic 998), which will serve as a precedent for the resolution of at least 14 similar cases suspended in other courts. The appeal was filed by the Rio Grande do Sul State Public Prosecutor’s Office against a ruling by the local State Court, which acquitted a woman accused of drug trafficking who smuggled 96 grams of marijuana inside her body for her brother, an inmate at the Central Prison of Porto Alegre. According to the State Court, the evidence was obtained illegally, in violation of the constitutional guarantees of privacy, honor and image, since the visitor was subjected to an abusive search when she entered the prison to visit her detained family member.
In his vote – cast in 2020, when the matter was discussed in the Court – Justice Edson Fachin, rapporteur for the appeal, stated that evidence obtained from abusive and demeaning practices, such as undressing people, making them squat and searching their private parts, for example, they must be classified as unlawful as they violate the dignity of the human person and the fundamental rights to integrity, privacy and honor. The justice noted that, according to Law 10,792/2003, which amended the National Prison Law (Law 7,210/1984) and the Code of Criminal Procedure, the control of entry into prisons must be performed using electronic equipment such as metal detectors, body scanners, hand-held detectors and X-ray machines. The absence of this equipment, claimed the justice, does not justify the use of intimate searches.
The organizations Conectas Human Rights, ITTC (Land, Labor and Citizenship Institute) and IDDD (Defense of the Right to a Defense Institute) are participating in the judgment as amici curiae (friends of the court) to highlight the illegality of the procedure. The organizations form the Criminal Justice Network, a group of nine organizations that are working to promote a justice system that is based on human rights. The group has sent a technical opinion to the justices of the Supreme Court urging the procedure to be considered unconstitutional. The petitioning organizations are therefore asking the Court to rule as unconstitutional the practice of intimate and abusive searches and, consequently, any evidence obtained or produced from these searches.
- Case: Special Appeal 959620 with General Repercussion (Topic 998)
- Court: Supreme Court
- Status: Virtual judgment starting on May 12
- 03/31/2016 – Case filed
- 09/17/2018 – Request for amicus curiae status by Conectas accepted
- 10/28/2020 – Judgment suspended
- 05/12/2023 – Resumption of judgment in a virtual session