Justice Council mulls holding custody hearings by video conference

Organizations defend in-person hearings as an effective way to prevent torture

Human rights organizations, public defenders and lawyers from across Brazil sent an official letter on Monday, November 23, to Justice Luiz Fux, president of the CNJ (National Justice Council), requesting the maintenance of the ban on the use of video conferencing for pre-trial custody hearings.

The organizations defend maintaining Article 19 of CNJ Resolution 329/2020, which bans the use of video conferencing, arguing that custody hearings should be held in person, respecting the right of detainees to be presented before a judge within 24 hours after their arrest, as an effective measure to prevent torture.

Among the 78 organizations that signed the letter are the National Association of Public Defenders (Anadep), the Association of Judges for Democracy, the State-Level and National Mechanisms to Combat and Prevent Torture, the Criminal Justice Network, the Association for the Prevention of Torture, the Catholic Church’s prisoner outreach service Pastoral Carcerária, the Brazilian Criminal Sciences Institute (IBCCRIM), the Defense of the Right to a Defense Institute (IDD), Justiça Global, Conectas Human Rights, the National Decarceration Agenda and the Black Coalition for Rights.

The organizations have launched the hashtag campaign #TorturaNãoSeVêpelaTV (#YouCantSeeTortureOnTV) to demonstrate that video is not an adequate tool for preventing mistreatment and torture, since it does not give the detainees the right conditions to report possible aggressions suffered at the time of their arrest. Without in-person custody hearings, an arrested person is at risk of not being seen personally by any executors of the law.

“Since it is possible for other hearings in the criminal justice system to be held by video conference, if custody hearings are also held remotely, there is a serious risk that a person accused of a crime will be prosecuted without ever having been in the physical presence of a judge,” reads the letter.

The organizations note that seven states are once again holding in-person custody hearings, as the essential purpose of these hearings requires. This has been possible through the strict observance of health protocols. “These experiences can and should be considered when establishing national guidelines for the safe resumption of the hearings,” continues the letter.

Given the pressure from judicial bodies to use video conferencing for custody hearings, the organizations are calling on the CNJ to uphold Article 19 of CNJ Resolution 329. “The revision of article 19 would do fatal damage to these hearings, which have been consolidated over the past five years after much effort and with the support of this Council and the Supreme Court. In view of this, the undersigned organizations hereby request the maintenance of Article 19 of CNJ Resolution 329/2020 and emphasize the need to resume in-person custody hearings in all Brazilian states.”

The organizations warn that the adoption of the rule that authorizes custody hearings to be held by video conference could result in the international accountability of Brazil. They pointed out that Juan Mendez, the former UN special rapporteur on Torture, said during the debate on Resolution No. 329 that “even though the maximum potential of the [custody hearings] is yet to be achieved, allowing them to be held by video conference would clearly be a setback”.

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