The custody hearing is a necessary step in Brazil, established in the San José Pact of Costa Rica and governed by CNJ Resolution No. 213/2015, which requires the prompt appearance of the arrested individual before a judge within 24 hours.
The primary goal is to confirm the legality of the detention facility, the necessity of holding individuals in custody, and the presence of any abuse or torture.
The lawyer’s performance is crucial to ensure the rights of the accused, advocate for temporary release, and contest any irregularities during the arrest.
This article discusses how custody hearings are conducted and important aspects of defense strategies.
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Custody Audience Goals
The custody hearing was introduced nationwide in Brazil by the CNJ in 2015 and started aligning the legislation with Law No. 13,964/2019 (Anticrime Package), which modified Article 310 of the Code of Criminal Procedure.
The main objectives of the custody hearing are to guarantee that the detention is conducted in accordance with the law and upholds the fundamental rights of the individual detained.
- The judge assesses if the prison complied with legal standards by examining the procedures, reasons for detention, and adherence to legal guarantees. If any violations are found, the judge may order the individual’s immediate release.
- The judge decides whether the detainee can be released with precautionary measures or if they should remain in prison based on the case’s circumstances, following the Criminal Procedure Code’s criteria.
- During the hearing, the defendant can report any mistreatment by government officials while in custody, during transport, or detention. If the judge finds evidence of inhumane treatment, they can order an investigation and take steps to protect the prisoner’s well-being.
Custody hearing process
The custody hearing follows a typical procedure to promptly review the legality of confinement and safeguard the rights of the accused.
- The defendant must be brought before a judge within 24 hours of their arrest, in accordance with the guidelines set by the Supreme Court (STF) and international human rights agreements that Brazil has ratified.
- The detainee is questioned by the magistrate regarding any mistreatment, aggression, or torture experienced during the police process. If abuse is confirmed, steps may include referral to the Prosecutor’s Office and identification of the crime committed.
- The prosecutor assesses the legality of the detention, ensuring compliance with legal standards. They may request the release of the individual on bail or with restrictions, or, if irregularities are found, recommend easing the detention.
- The defense lawyer argues for the defendant’s freedom by contesting the legality of their imprisonment and requesting alternative precautionary measures.
- The judge will make a decision in the case after listening to the parties involved and may choose one of the following options.
- If an arrest is deemed illegal, the prisoner is released right away.
- The judge has the authority to grant temporary freedom to the defendant, with or without imposing conditions like wearing an electronic ankle monitor, attending regular check-ins, or avoiding contact with specific individuals.
- If the judge perceives a threat to public order, legal procedures, or law enforcement, they can order pretrial detention to keep the accused in custody.
The custody hearing is a crucial process in preventing unjust detentions, upholding basic rights, and ensuring the transparency and legality of the criminal justice system.
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Lawyer’s role in a custody hearing.
The attorney has a crucial role in the custody hearing, making sure the prisoner’s rights are upheld and pursuing the optimal legal resolution for the situation.
Its duties encompass various elements, including evaluating the legality of incarceration and safeguarding against the imposition of pretrial detention.
Guarantee the right to a comprehensive legal defense.
The attorney needs to make sure that the defendant fully comprehends their rights from the start of the hearing.
- Right to remain silent in order to prevent self-incrimination.
- Right to legal representation, whether provided by a private attorney or a public defender.
- Right to communicate with family members, to update them on their condition and whereabouts.
Make sure the prisoner is not subjected to excessive pressure to admit to crimes or accept unfavorable conditions for their defense.
Examine the legality of the prison
The attorney needs to ensure that the prison has met the legal standards. Common issues that may lead to the prison being eased include:
- Lack of a valid reason for imprisonment, such as a clearly fabricated accusation or the absence of any obvious crime.
- Entering someone’s home without a court order is prohibited unless specified by law in exceptional circumstances.
- Utilization of illegal evidence, like coerced confessions or unlawfully seized items.
- Police misconduct, such as physical violence, torture, or humiliating treatment.
- Failure to submit to the judge within 24 hours, as mandated by the Supreme Court (STF).
If any illegal actions are discovered, the lawyer should ask for the expensive item to be released immediately by arguing that the imprisonment is invalid.
Need temporary release
If the arrest is lawful, the lawyer can request temporary release, with or without bail, showing that the defendant poses no threat to the legal proceedings or the public.
The primary reasons for providing temporary release are:
- No repeat offenses.
- Maintaining a stable home and exhibiting positive social conduct.
- Legal employment and strong family connection.
- Cases involving non-violent crimes, such as property crimes without physical harm, are given priority based on the nature of the offense committed.
The request might involve different preventive measures instead of imprisonment, such as regular court appearances or electronic surveillance, as stated in Article 319 of the CPP.
Fighting against the imposition of pretrial detention
The lawyer must oppose the Public Prosecutor’s request to convert the prison sentence by pointing out the absence of necessary legal conditions.
Article 312 of the CPP mandates specific justification for ordering pretrial detention, which is only permitted under certain conditions.
- Risk of public disorder may arise if expensive individuals engage in further criminal activities.
- Risk of giving procedural guidance in order to pressure witnesses or tamper with evidence;
- Possibility of evading legal consequences through criminal law enforcement.
The lawyer needs to show that the defendant’s freedom will not hinder the legal process if these elements are not present.
Report incidents of police misconduct or torture.
The custody hearing aims to protect the prisoner’s well-being, both physically and psychologically. The attorney needs to inquire about any abuse or harm experienced by the individual while in prison, during transportation, or in custody.
If there are indications of mistreatment, the defense can ask for:
- Conducting a thorough body assessment to document any injuries.
- Investigation initiated against the involved agents.
- Referring the Public Prosecutor and the Police Department for disciplinary and legal actions.
The lawyer’s role is crucial in stopping institutional violence and ensuring prisoners are treated respectfully.
Tips for lawyers in child custody hearings.
- Maintain composure and professionalism: the defense’s behavior should be strong yet respectful, steering clear of unnecessary conflicts with the judge or prosecutor.
- Verify if the Public Prosecutor and Public Defender are present. If the Public Prosecutor is absent, document the situation and request the hearing’s nullification if required.
- Whenever feasible, make sure to speak before the Public Prosecutor to present the defense arguments without being influenced by the accusatory narrative.
- The request for freedom should be grounded on the lack of conditions for preventive detention (Article 312 of the Criminal Procedure Code) and the principle of presumption of innocence.
- Utilize current legal rulings to support your arguments, focusing on recent decisions regarding prison precautionary measures.
- If the customer is experiencing health issues such as medical conditions, substance dependence, or psychiatric disorders, it may be necessary to consider releasing them from prison.
- If any irregularity is found, report it, request to be included in the legal documents, and take appropriate actions as needed.
The Advocate’s Role in Custody Hearings
The custody hearing is an important tool for protecting the prisoner’s rights and decreasing unnecessary arrests.
The lawyer plays a crucial role in contesting unlawful arrests, avoiding the automatic transformation of detention into pretrial custody, and safeguarding against mistreatment.
The lawyer can achieve positive outcomes for their client by using technical expertise and strategic reasoning to ensure proper legal procedures and the presumption of innocence are upheld.
Read our article on Unauthorized Use: Varieties, Consequences, and Contrasts Between Theft and Larceny.
What is a custody hearing and what is its legal foundation in Brazil?
The custody hearing in Brazil is a required process that involves bringing the arrested individual before a judge within 24 hours. It is based on international agreements, national resolutions, and laws to ensure that arrests are lawful and respect the detainee’s rights.
What are the three primary goals of the custody hearing?
The custody hearing serves three main purposes: assessing the legality of the detention, determining whether the detainee can be released with or without conditions, and investigating any claims of mistreatment or torture by state agents.
What are the primary irregularities that the attorney should investigate to support the request for the prisoner’s release?
The attorney needs to examine specific irregularities that could warrant the release from prison: Lack of valid grounds, like clear forgery or absence of a clear crime; Unauthorized entry into a home without a court order (unless allowed by law in exceptional circumstances); Utilization of illegal evidence, such as coerced confessions or unlawful seizures; Police misconduct, including physical violence, torture, or inhumane treatment; Failure to present the individual before a judge within 24 hours, as mandated by the STF.
What are the primary points that the attorney could present to argue for temporary release?
The lawyer could argue for temporary release by emphasizing the lack of criminal repeat offenses, evidence of good behavior and stable residence, lawful employment and strong family ties, the non-violent nature of the crime committed, absence of legal grounds for preventive detention as outlined in Article 312 of the Criminal Procedure Code, and the option for alternative precautionary measures to imprisonment under Article 319 of the Criminal Procedure Code.
How should the lawyer respond to prevent being detained before trial?
The lawyer must challenge the prosecution’s request by showing the absence of legal prerequisites, lack of specific reasons for public order risks, absence of evidence for compromising the legal process, no flight risk or threat to law enforcement, adequacy of alternative precautionary measures, and emphasize the exceptional nature of preventive detention and the presumption of innocence.
How should the lawyer proceed in identifying evidence of police misconduct or torture?
When identifying signs of police misconduct or torture, the attorney should: Ask for a physical examination to document injuries; Demand an investigation against the officers involved; Urge the case to be referred to the Public Prosecutor and Internal Affairs; Document allegations of violence in detail; Take photos of any injuries, if feasible and permitted; Request judicial intervention to safeguard the victim’s well-being; Evaluate filing a habeas corpus petition or other suitable legal actions.
What precautions should the lawyer take when dealing with clients who have specific health issues?
The lawyer should address special health concerns of clients by emphasizing health issues that warrant release from prison, providing medical evidence of pre-existing conditions, advocating for appropriate treatment in prison, requesting specific medical evaluations as needed, seeking alternative measures suitable for the client’s health, and recommending specialized treatment for chemical dependence or psychiatric disorders.
What should be the attorney’s stance like in the custody hearing?
The lawyer should maintain a calm and professional demeanor during the custody hearing, offering a strong yet respectful defense. They should be attentive to the presence of the Public Prosecutor and Public Defender, noting any absences. It is advisable to be proactive by seeking to speak first to present defense arguments without being influenced by the accusatory narrative. The defense should be solid, emphasizing the lack of grounds for preventive imprisonment and the presumption of innocence. It is essential to have current legal precedents to support their arguments and to be vigilant for any irregularities, documenting them when they arise.
What options does the judge have following the custody hearing?
After the custody hearing, the judge could decide to release the accused due to lack of evidence, grant temporary release with or without conditions, or keep the accused in preventive detention if there is a perceived risk to public order or legal procedures.
