How the actions of Augusto Aras threaten the work of Public Defender’s Offices in the defense of the most vulnerable people

Requests from the Prosecutor-General to the Supreme Court will make it difficult for the Office to access public documents

O procurador Geral da República, Augusto Aras, durante sessão do STF que retoma julgamento sobre o compartilhamento de dados bancários e fiscais.

After learning of the case of a person detained for petty theft at the Itatinga Pre-Trial Detention Center, in the state of São Paulo, the State Public Defender’s Office requested from the facility a list of all the people imprisoned there for the same crime, in which the value of the stolen property is considered insignificant. In cases like this, the accused can be released on bail or not even face charges.

This was how the courts, through habeas corpus petitions, ordered the release of seven people in early November 2021. Among them was a man who stole a used wheelchair, another who stole a pair of pliers worth R$19.90 and a third who stole R$10 worth of old wires. In one of these cases, involving the theft of an iron fence, Supreme Court Justice Alexandre de Moraes reiterated the decision to release the detainee.

These cases by public defenders were only possible thanks to their ability to request documents from public bodies, which preceded the petitions for release from detention. It is this kind of access to information that the Prosecutor-General Augusto Aras intends to block.

In May 2021, Aras filed 23 cases in the Supreme Court claiming the unconstitutionality of this power by the country’s Public Defender’s Offices, seeking to overturn a piece of federal legislation from 1994 and other state rules that are, in fact, organic laws that are fundamental for the existence of these Offices. Starting on February 11, some of these cases will start to be heard by a virtual session of the Supreme Court.

The importance of the power to request information

It was thanks to this power to request information that, in June last year, the Specialized Center on the Prison Situation of the São Paulo State Public Defender’s Office was able to denounce Brazil to the Inter-American Commission on Human Rights (IACHR) for failing to respond to the crimes of torture that occurred in the Cedro unit of the Fundação Casa youth reform center in São Paulo.

In a petition to the IACHR, the São Paulo State Public Defender’s Office identified that 147 children and adolescents in the custody of the State between 2015 and 2017 had been victims of physical violence, isolation and threats. The document contains accounts and photos of aggression using belts, chains, broom handles, bricks and chairs.

According to Raissa Belintani, a lawyer and coordinator of the Strengthening Democratic Space Program at Conectas, one of the Prosecutor-General’s arguments is that the power to request documents from public bodies breaks the “balance of the procedural relationship” and infringes on the “parity of weaponry” between public defenders and lawyers.

“The prerogative to request information is one of the few tools that the law grants to balance the procedural relationship in favor of people assisted by the Public Defender’s Office. It applies the defense of the legal interests of those who are vulnerable, guaranteeing access to documentation that could otherwise not be obtained,” said Belintani.

Inequality in Justice 

“Limiting the role of public defenders is unconstitutional and will further increase the inequality in the justice system. Public defenders are already working beyond their capacity. The loss of this prerogative would have an immeasurable negative impact on access to justice by a population that, for the most part, is made up of black and poor people who cannot afford to pay for their right to defense,” she added.

The lawyer also notes that these requests are made outside the courts, which is positive in the context of an overloaded justice system. Furthermore, the requests of public defenders are in no way exempt from judicial review in the event of possible abuse.

ADI Case 6862

Conectas Human Rights, Legal Department XI August, Amparar, Peregum Institute and UNEAFRO Brazil addressed the Supreme Court as an amicus curiae in ADI Case 6852 – one of the cases submitted by the Office of the Prosecutor-General. In the request for admission as amicus curiae, the organizations emphasized that the power of public defenders to request documents helps compensate for the deficient access to information by economically vulnerable people.

“The people defended by the Public Defender’s Office are subject to poverty and lack of adequate education, and they belong to economically, legally and organizationally disadvantaged groups, which makes it even more necessary to invest in expanding the scope of the protection network created by the collective action of the institution,” they said.