December 2, 2020
Last week, the National Council of Justice (CNJ) authorized videoconference custody hearings during the Covid-19 pandemic. The decision adopted in a Resolution represents a change in the agency’s understanding, which had previously prohibited remote custody hearings.
Custody hearings consist of the immediate conduct of the person arrested in flagrante delicto before the competent court. With the beginning of the pandemic and the adoption of measures to contain the spread of the virus, they were suspended in March of this year. Thus, the arrests in flagrante were being analyzed by the judge only on the basis of the documents of the case, without contact with the prisoner.
In October, the courts of some states of the country resumed holding the custody hearings in person, with the implementation of sanitary measures. Now, with the most recent decision of the CNJ, new discussions arise about the legitimacy of the procedure done remotely. This is because the hearing is an important instrument for guaranteeing the fundamental rights of the subject under arrest.
After all, can the virtual experience of the custody hearing be equated to the personal and face-to-face contact between the arrested person and the judge? Does it satisfactorily fulfill the role of the institute?
A custody hearing is a mandatory procedure, according to which a person arrested in the act of committing a crime must be presented to the judicial authority within 24 hours after the arrest. The constituted lawyer or Public Defender must be present, as well as the member of the Public Prosecution Service.
Custody hearings have been implemented in the Brazilian criminal justice system since Resolution No. 213 of the CNJ of December 15, 2015. They are based on the American Convention on Human Rights (or San José Pact of Costa Rica) and the International Covenant on Civil and Political Rights, international treaties to which Brazil is a signatory.
However, the institute was only incorporated into Brazilian criminal procedural legislation through Law 13.964/2019, known as the “Anti-Crime Law”. It changed the wording of article 310 of the Code of Criminal Procedure to make it mandatory to hold a custody hearing whenever there is an arrest in the act.
It is through the custody hearing that the judge will evaluate the legality of the prison and the need for its maintenance, as well as the physical and psychological integrity of the prisoner, who must be questioned about the circumstances in which the prison occurred and any ill-treatment suffered. At the same time, the Public Prosecutor’s Office and the technical defense will also be heard, who may ask questions of the prisoner and requests to the magistrate. Finally, the judge will decide whether the arrest in flagrante should be relaxed, converted into pre-trial detention, replaced by cautionary measures other than prison, or whether to grant provisional release, with or without bail.
In this sense, the custody hearing has a fundamental role in ensuring respect for the rights of the person under arrest and in curbing torture and police abuses, functioning as a kind of external control of police activity. It also contributes to the fight against mass imprisonment by facilitating the identification of arbitrary and illegal arrests. The importance of the procedure stands out when considering the high rates of police lethality and the rate of imprisonment in the country.
The reality of imprisonment in Brazil. Photo: Unknown author.
It is the moment in which there is direct and personal contact between the arrested person and the competent authority to decide on their fate in the coming months, or even years of their life. The implementation and legal obligation of custody hearings are therefore a human rights achievement, which is in line with constitutional principles.
Custody hearings returned to the spotlight when there was a suspension of the face-to-face work in the Judiciary due to the Covid-19 pandemic. To regulate the new format of activities, the CNJ approved Resolution 329 on July 30.
In general, it establishes criteria for the performance of procedural acts by videoconference, during the state of public calamity, in order to preserve the due legal process, the contradictory and the broad defense. Its article 19, however, prohibited the holding of custody hearings by videoconference.
In the vote, the majority was in favor of the proposal of the president of CNJ, Minister Dias Toffoli. He argued that “the videoconference system goes against the essence of the institute of the custody hearing, which aims not only to assess the legality of the prison and the need for its maintenance, but also to verify the occurrence of torture and mistreatment.” In other words, the understanding was that holding the custody hearing remotely would make it impossible for the judge to verify whether the person arrested was a victim of police violence.
The decision had repercussions and the Association of Brazilian Magistrates (AMB) requested the Federal Supreme Court (STF) to declare Article 19 unconstitutional. In the petition, AMB states that, in times of pandemic, it would be more prejudicial to the prisoner not to hold the custody hearing than to hold it by virtual means, exceptionally.
The STF has not yet ruled on this petition. However, a few months later, the CNJ approved a new Resolution that changed the wording of article 19 of the law. In Resolution 357, of November 26, 2020, the holding of custody hearings by videoconference is allowed “when it is not possible to hold them, within 24 hours, in person”.
The proposal was presented by the new President of CNJ, Minister Luiz Fux, who defended the same understanding of AMB. According to him, “for exceptional moments, we need to have exceptional measures” and holding the custody hearing by videoconference would be better than not holding it. Fux also said that there were no reports of possible torture neglected by remote hearings.
The Resolution provides that, preferably, hearings should be held in person. But, they may be held by videoconference when this is not possible, as long as the requirements are met. 360 degree cameras and an external camera should be installed to monitor the inmate’s entrance. The inmate should remain alone in the room, allowing only the presence of the defender or lawyer, or even the Public Prosecutor. Finally, a corpus delicti exam must be performed before the hearing.
The new wording of article 19, however, does not explain the reasons for this impossibility of being in person. The new panorama has generated reactions from entities that defend human rights.
Still in June, when the matter was included on the agenda for the first time, about 150 entities sent a letter to the CNJ advocating the prohibition of remote custody hearings. On the same occasion, it was launched the campaign #TorturaNaooseVêpelaTV on social networks.
The document stated that “the custody hearing does not fulfill its main function when performed by virtual means”. This is because it wouldn’t be possible to verify through a screen the occurrence of possible tortures or mistreatments. Thus, they defended a schedule for the gradual resumption of the realization of the presential custody hearings, following the orientations of the health authorities.
In addition, the letter recalls that during the votes on the “Anticrime Package,” Congress rejected the proposal to hold by videoconference procedural acts that depended on the participation of a prisoner. An express prohibition on holding custody hearings by videoconference was included in the legislation. This provision was vetoed by the President, but the analysis of the veto by Congress is still pending.
The new Resolution generated another wave of repudiation. In a Note, entities evaluate that the adequacy to the requirements for holding remote hearings would mean a much greater amount of resources than the adequacy of the rooms according to the sanitary measures. Thus, they advocate the adoption of a face-to-face and safe model for audiences, as has been adopted in some states.
It is worth highlighting that, although the pandemic has rekindled the discussion, the attempt by some actors in the justice system to implement the custody hearing by videoconference is not new. There are even earlier reports from judges who have tried to conduct it through WhatsApp. With the rationale of ensuring speedy processing, these arguments often disregard the role of the hearing in protecting the person arrested.
Data from the CNJ itself shows a drop of about 83% in the detection of torture and ill-treatment since custody hearings were suspended. As the Association for the Prevention of Torture (APT) highlights, in March 2020 there were 11,900 custody hearings in the country, in which 1,033 reports or indications of torture and ill-treatment were recorded. Between April and May, this number fell to 403 cases among 28,510 arrests made.
The cases that reach the media every day do not allow us to conclude that there was a drastic reduction in police violence during this period. Thus, the data explain that custody hearings are essential to reveal and combat torture and police ill-treatment.
Finally, it is worth concluding that the supposed dichotomy between holding videoconferences or not holding custody hearings is false. Given the increasing flexibility of social distancing measures, with the operation of malls, bars and concert halls, as long as the necessary precautions are taken, it does not seem true that there is no safe alternative for holding hearings in person.
The measures to confront Covid-19 must be considered in the light of human rights. It is therefore essential to create solutions that guarantee both human rights and health safety so that the custody hearings truly fulfill their objectives.
By Ana Carolina Rezende Oliveira  and Luísa Mouta Cunha .
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 Doctoral student in Law at the Federal University of Minas Gerais (UFMG). Master in Law at the Federal University of Rio de Janeiro (UFRJ). Researcher associated to the Center for Studies on Transitional Justice (CJT/UFMG).
 Undergraduate student in Law at the Federal University of Minas Gerais (UFMG). Extensionist of the Center for Studies on Transitional Justice (CJT/UFMG).