Case Watch: Brazil’s Supreme Court Rules against Blanket Prohibition on Pretrial Release

In “Case Watch,” staff of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.

Brazil has the fourth-largest prison population in the world; as in many other countries in Latin America, a huge number of those behind bars are pretrial detainees who may wait or even years for a court appearance. They are held in overcrowded conditions, exposed to the risk of disease and illness, as detailed in our new video reports, and they face abuse and torture by police and guards.

But this grim situation could now start to change, thanks to a landmark ruling by Brazil’s Federal Supreme Court (a detailed account of the ruling in Portuguese can be found here) supporting the right of pretrial detainees to seek provisional release on bail, or some other cautionary measure, pending trial. By ruling against a 2006 law that prevented this kind of application in cases involving certain drug crimes, the court has taken a powerful stand against unjustified mass pretrial detention.

The ruling comes against the background of Brazil’s long struggle with drug gangs, which has fed public demands for more, not less mass incarceration, despite the justice system’s evident inability to cope with the flood of prisoners. So it is encouraging to see the Supreme Court stand up in support of a judicial process that is fair, balanced and meets international and constitutional standards.

The issue came up before the Supreme Court when a detainee filed a habeas corpus petition challenging his three–year long detention without trial. The man, who had been caught with about five pounds of cocaine and smaller amounts of other narcotics, had been held since 2009 awaiting trial, pursuant to a legal provision that makes pretrial detention mandatory for people accused of certain categories of drug crimes.

The majority of judges ruled that the detainee’s case must be re-heard by the lower level judge to allow the accused the chance to present evidence in favor of provisional release pending trial. The ruling declared that a general prohibition against pretrial release for entire categories of crimes “is incompatible with the constitutional principles of the presumption of innocence and due process of law, among other principles.” Further, the decision declared that a blanket rule deprives a competent judge the opportunity to, in this case, “analyze the allegations regarding the necessity of detention as a cautionary measure and an anticipated sentence, going against several constitutional devices.”

Given that the challenged law as drafted establishes a regime of mandatory pretrial detention—making detention the rule, and freedom the exception—the majority concluded that it violates provisions of Brazil’s 1988 Constitution which established freedom as the rule, and detention an exception to this rule, requiring a proper legal and factual foundation.

International standards establish that a person needs to be freed pending trial unless there are no alternatives to detention in order to prevent the accused from absconding, committing a serious offense, or interfering with the administration of justice. This test requires a careful consideration of the facts of the case, of the circumstances of the accused and of the available alternative cautionary measures. The international instruments also make clear that a judicial authority is to be in charge of such a review.

While not referring directly to these international standards, the Brazilian decision also highlighted the role of the judiciary, stating that judicial review should not only apply to the initial decision to detain, but also to the continuation of detention, stating: “There is a need for continuous judicial control of detention that not even the law can remove.” The decision stressed that it is up to the judiciary and not to the legislature, to verify whether or not, in each case, there are sufficient allegations based in fact to justify pretrial detention.

In one notable dissent a judge emphasized the scourge of drug crimes in Brazil and appeared to link the need for pretrial detention with the ability of the state to combat such crimes. But even that dissenting judge, while voting to uphold the constitutionality of the blanket prohibition on release, did vote to free the accused on the basis that he had been detained without trial for three years, stating that he considered this term “excessive.”

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Brazil should really do the right thing.

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