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NEWS

Commentary: The impact of COVID-19 on Brazil’s criminal justice system

FairTrialsAdmin - July 27, 2020 - COVID-19 Updates, Commentary, Rule of Law, Prisoner releases, Prison conditions

This post was written by Daniel Padilha Vilanova, lawyer at Padilha Advocacia e Consultoria in Brazil.

In the past three months, we have realized just how fragile our lives are. More than that, we have realized just how badly we have been living: too much traffic on the streets, bad relationships with our co-workers, unnecessary meetings, offices that are too big, and so on. In short: we have noticed that we have been wasting our time unnecessarily and creating chaos for ourselves.

            Brazil is a country with a lot of economic, social and political problems. Even before the pandemic, our politicians did not know how to tackle the difficulties we face and now the situation has only become worse. Moreover, our president is anything but qualified and every new day brings a new scandal involving his government, as if the pandemic wasn’t bad enough. As an example of this terrible situation, over the course of the pandemic we have already had two different ministers of health. The first was fired by the president and the second couldn’t stand all the things that the president did. As of the date of writing (17th June 2020), the post is still vacant, meaning that there hasn’t been a minister of health for one month now.[1]

            Against this backdrop, we are seeing a lot of changes – some good, some bad – due to COVID-19, especially in our criminal justice system. First, we came to an obvious conclusion: we must use technology to improve our justice system, more than we were doing before this pandemic. Technology has its advantages, such as an increase in judicial productivity. The National Council of Justice (CNJ) recorded an increase in productivity in the first weeks of remote working[2] in São Paulo, which is Latin America’s largest city, as well as in the state of Mato Grosso do Sul.

            At the same time, we cannot ignore the enormous difference between civil courts and criminal justice systems – both are important, but when dealing with crimes, prisons and other delicate questions, there is a stark contrast. Even though productivity has increased, we have to understand that does not mean that the justice system has necessarily improved: quantity is not quality, especially in criminal justice. There is a huge emotional component in criminal procedure, and it is not possible to exercise the rule of law if we overlook this aspect. There is no doubt that criminal procedures are much more effective if they are conducted in person. We must look for faster procedures, but while technology helps in this aspect, the human element is essential and has to be prioritized.

            We also expected huge problems in our prisons, because the Brazilian prison system was already completely broken and ineffective. Prisons have been overpopulated since before 2000. In 2010, Brazil’s prisons held 214,731 more people than they had capacity for; this had increased to 306,002 by 2019[3]. Facing these numbers and the bad conditions of Brazil’s prisons, the National Council of Justice promulgated Resolution Number 62 to try and slow down the spread of the virus and ensure that our Constitution would be respected. If you are a criminal, it does not mean you should die or suffer from overcrowding and disease. The State took your liberty, not your dignity.

            Resolution No. 62 is a recommendation for Brazilian judges and courts to adopt preventive measures to slow the spread of COVID-19. Its sixteen articles suggest alternatives to incarceration, underlining alternatives to arrest and incarceration. For example, if you are in an at-risk group and in jail, you should be in home detention or even set free.[4] Moreover, the resolution mentions the review of the judicial decisions and other necessary steps to fight this pandemic.

            However, President Bolsonaro has downplayed the risk of the pandemic, with comments such as “it’s just a flu.”[5] When a judge shares this view, it can create serious problems. For example, a São Paulo judge denied a request from the public defender to grant a prisoner home detention, based on Resolution No. 62. This judge justified his refusal by claiming that only three people in the world are free of COVID-19: Andrew Morgan, Oleg Skripocka, and Jessica Meier, all astronauts on a mission in space. In his opinion, people are using COVID-19 as a blank check to justify anything. This decision shows how unlimited the power of Brazilian judges is. Some appear to believe that they do not need to substantiate their decisions with reference to the Constitution, the Criminal Code of Procedure, or even civil law. Some would prefer to let people suffer and even die in jail than to follow the legal system properly. Fortunately, the CNJ has initiated an investigation into this judge.

Measures to combat COVID-19 have compelled Brazil’s justice system to be more productive, to use technology in its favour, and to create ways to assure fundamental rights, as lawmakers have attempted with Resolution No. 62. However, at the same time, we have some judges that act with apparent impunity, demonstrating how powerful Brazilian judges are and how this power allows them to make arbitrary decisions. It is good to see that even in a difficult situation it has been possible to maintain access between lawyers and clients, and that the authorities are working to uphold fundamental rights and principles. It is also disheartening to see others acting against these important steps.

 

[1] Mr. Eduardo Pazuello, a general, is occupying the post as interim minister.

[2] https://www.cnj.jus.br/3a-regiao-aumenta-produtividade-nas-primeiras-sem...

[3]INFOPEN:https://app.powerbi.com/view?r=eyJrIjoiZTk3ZTdmMDEtMTQxZS00YmExLWJhNWYtM...

[4] Resolution No. 62, Art. 8, I, B

[5] Phrase said by the President on 25th March 2020.

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