Supreme Court suspends judgment on unconstitutionality of abusive searches in prisons

The adjournment followed a request for the case to be heard by an in-person session of the Court

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Updated on 05/19/2023 at 4 pm

After a request for an in-person session by Justice Gilmar Mendes, the Supreme Court suspended on Friday its virtual judgment on the unconstitutionality of intimate and abusive searches in prison facilities and the legality of evidence obtained from this procedure. 

The development came after a reversal of the judgment. This morning, six justices had voted the procedure to be unconstitutional, guaranteeing an absolute majority for the recognition of abusive searches as representing a violation of the principles of human dignity. Later on, however, Justice André Mendonça changed his vote, keeping the vote count at five in favor of unconstitutionality and four against.

Besides the rapporteur of the case, Justice Edson Fachin, favorable votes were cast by justices Barroso, Rosa Weber, Carmen Lucia and Gilmar Mendes, although Mendes had expressed disagreements with the rapporteur’s thesis. Votes against unconstitutionality came from Alexandre de Moraes, Nunes Marques, Dias Toffoli and, finally, André Mendonça.

After the adjournment, the judgment returns to square one and the Court will analyze the case in an in-person session, although no date has yet been set.

About the judgment

The issue of abusive searches is the subject of Special Appeal 959620 with General Repercussion, 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.

Rights violations

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.

Civil society denounces violations

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.

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