IACHR to assess detention hearings

Hearing in the Inter-American Commission was requested by Justice Ricardo Lewandowski

Hearing in the Inter-American Commission was requested by Justice Ricardo Lewandowski Hearing in the Inter-American Commission was requested by Justice Ricardo Lewandowski

In a hearing requested by the CNJ (National Justice Council), the IACHR (Inter-American Commission on Human Rights of the OAS) will assess today, October 20, the implementation of detention hearings in Brazil.

The adoption of these hearings, which ensure that suspects see a judge within 24 hours of their arrest, has been a crusade of the president of the Council, Justice Ricardo Lewandowski. With the support of the State Courts, he has managed to implement pilot projects in all the state capitals since the start of this year.

The hearings serve two main purposes: to avoid unnecessary pre-trial detention, decongesting the prison system; and to prevent and investigate cases of torture or mistreatment at the time of the arrest.

Brazil is one of the few signatories to the American Convention on Human Rights that still does not have a federal law making the procedure mandatory, in spite of long-time pressure from human rights organizations to approve a bill in the Senate (Senate Bill 554/2011) that would institute detention hearings across the country.

According to human rights organizations involved in the matter, the initiative by CNJ, while positive, is still fragile and flawed.

“You can’t change the incarceration situation or stop torture in Brazil with the ‘stroke of a pen’. The detention hearings, in order to work, need to be backed by a federal law and not by the political will of a handful of people. Today, the president of the CNJ is heading up this project. But what about tomorrow. What will happen then?” said the lawyer Rafael Custódio, coordinator of the Justice program at Conectas.

In practice

Conectas, IDDD (Defense of the Right to a Defense Institute), ITTC (Land, Employment and Citizenship Institute), Justiça Global and the International Human Rights Clinic of Harvard University asked the IACHR about the possibility of participating in the hearing in order to verify the information that will be presented by Lewandowski

In the request, they cite the example of São Paulo, the state with the largest prison population in the country (219,000 prisoners, or 36% of the total). According to data from the São Paulo State Court, of the 6,246 hearings held between February 24 and August 5 at the Criminal Courthouse of Barra Funda, only 43.16% of the defendants were released pending trial.

“When more than half of the suspects are kept behind bars during the trial process, it is clear that pre-trial detention is not being used as an exceptional measure, as Brazilian procedural law determines,” they said.

Click here to read the document submitted by the organizations to the IACHR.

The organizations also drew attention to the lack of investigation of complaints of torture and mistreatment made by the defendants – one of the main reasons for holding the hearings within 24 hours of the arrest, so any physical marks of violence are still visible.

According to data from the São Paulo State Court, a total of 277 complaints of torture have been registered since the hearings began. To date, no proceedings have been filed related to these cases.

In a study that began in July, the organizations found that “many judges do not even ask the detainees if they have been exposed to violence and, when there are complaints, the procedure is limited simply to issuing an official correspondence to the department responsible for the police internal affairs units”.

They also challenged the data from the São Paulo State Court. “The study identified, in the months of August and September alone, that 151 complaints of torture were made at the hearings, leading us to believe that many are not followed up by the authorities.”

“If the torture cases are not properly investigated, then the hearings lose their significance,” said Custódio. “It’s also worth pointing out that the police, which are accused of perpetrating the violence in 79% of the complaints, are always present at the hearings in São Paulo, including during conversations between the defendant and the public defender. We cannot describe as successful a project that has been incapable of separating and protecting torture victims from their torturers.”


The IACHR is a principal and autonomous body of the OAS whose mission is to promote and protect human rights in the American hemisphere. It is formed by seven independent members who serve in a personal capacity. Created in 1959, the Commission has its headquarters in Washington DC and, together with the Inter-American Court of Human Rights (IAHR Court), installed in 1979, it is one of the institutions of the Inter-American Human Rights System (IAHRS).

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