(São Paulo) – The Constitution, Justice and Citizenship Commission in Brazil’s Senate should approve a bill that would introduce basic due process procedures to prevent arbitrary detention, Human Rights Watch said today. The measure can also reduce prison overcrowding and lessen the risk of ill-treatment or torture.

Custody hearings are not only a part of basic due process that is missing from Brazil’s system, but can also help alleviate the country’s appalling prison conditions by reducing the number of people sent to pretrial detention.

Maria Laura Canineu

Brazil director

The bill, which is scheduled for a vote on August 12, 2015, mandates police to take anyone detained while allegedly committing  a crime  before a judge within 24 hours of arrest for a so-called “custody hearing.” Such prompt hearings are required for anyone detained on criminal grounds under international law but are rarely provided in Brazil.

“Custody hearings are not only a part of basic due process that is missing from Brazil’s system, but can also help alleviate the country’s appalling prison conditions by reducing the number of people sent to pretrial detention,” said Maria Laura Canineu, Brazil director at Human Rights Watch.

Custody hearings prevent the unlawful arbitrary imprisonment of nonviolent suspected offenders while they await trial, Human Rights Watch said. The hearings allow judges to make informed decisions regarding whether a person has been lawfully detained and should be incarcerated while awaiting trial.

A judge holds a custody hearing for a detainee in São Paulo on May 11, 2015, with the participation of a prosecutor and a public defender.

Without the hearings, detainees in Brazil waiting to see a judge for the first time may spend months and even years in overcrowded prisons, under intense pressure to join gangs, Human Rights Watch research found. Pretrial detainees, who in many cases should not be in custody at all, are routinely housed with convicted criminals, in violation of international standards.

Custody hearings can also be critical to stemming torture and mistreatment of detainees by police, a serious problem in Brazil, Human Rights Watch said. The obligation to take a detainee before a judge within 24 hours may dissuade police from mistreating detainees and help with investigations of human rights violations, since the Human Rights Watch research shows that abuses often occur during the first hours after arrest.

The Constitution, Justice and Citizenship Commission approved bill PLS 554/2011 on a first vote on August 5, 2015. If it approves it on second reading on August 12, the bill will go to the Chamber of Deputies without a vote in the full Senate, unless a group of senators file an appeal to force such vote.

Ten Brazilian states have begun custody hearings pilot programs since 2014 with support from the National Council of Justice (CNJ, in Portuguese). They are Maranhão, São Paulo, Espírito Santo, Minas Gerais, Mato Grosso, Rio Grande do Sul, Paraná, Amazonas, Tocantins, and Goiás.

In 60 percent of cases in the pilot program in Maranhão —the state with the worst prison violence in recent years— presiding judges found that pretrial detention was not warranted and ordered the detainee’s release, according to official data. In cases in which judges made custody determinations based only on police reports, without a custody hearing, judges ordered detainees released in 10 percent of the cases, although international law provides that there should be a legal presumption in favor of release.

“The experiences of states with custody hearings demonstrate that those programs both help guarantee that the person’s human rights will be respected and produce promising results”, Canineu said.