Detainees on Stage: Achievements and Challenges of the Newly-Implemented Bail Hearings in São Paulo State Courts

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Author(s):
Publish Date:
2017
Publisher:
Stanford Law School
Format:
Dissertation or Thesis
Citation(s):
  • Thiago Nascimento dos Reis, Detainees on Stage: Achievements and Challenges of the Newly-Implemented Bail Hearings in São Paulo State Courts, 2017.
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Abstract

In compliance with its obligations under the American Convention on Human Rights and the International Covenant on Civil and Political Rights, Brazil started to provide an in-person judicial review of arrests in 2015. Judicial review that used to be solely written and without mandatory prior intervention by the defense, now includes a hearing within 24 hours where judges must assess the legality of the arrest, the necessity of pretrial detention and other precautionary measures, as well as whether the suspect suffered police violence. This case study analyzes the practice of São Paulo state courts (pioneering jurisdiction) with bail hearings through an essentially qualitative approach that involved observing 160 hearings and interviewing 17 judicial actors for four weeks between December 2015 and March 2016. Despite the multiple and significant challenges, the findings herein support the conclusion that bail hearings improved pretrial proceedings’ compliance with Inter-American human rights standards. On personal liberty, bail hearings help to abbreviate illegal or unnecessary detentions by: (a) assuring the immediate judicial review of arrests; (b) improving the assessment of suspects’ personal conditions; (c) allowing them to provide their version of the facts directly to the judge; and (d) guaranteeing a mandatory prior defense. The hearings fell short, however, of making pretrial detention exceptional due to a systematic disregard for suspects’ right to presumption of innocence. Regarding access to justice for violations of personal integrity, bail hearings provide an opportunity for suspects to denounce abuses to an impartial and independent agent empowered to trigger investigations, as well as transparency to visible signs of violence. Nonetheless, hurdles are partially undermining hearings’ ability to expose violence: (i) flawed questioning about police violence; (ii) constant presence of Military Police officers; and (iii) excessively restrictive criteria to trigger investigations. As for subsequent investigations, interviewees were unanimous about their absolute ineffectiveness. Institutional acquiescence and flaws in evidence-gathering are preventing the hundreds of proceedings initiated from ascertaining the veracity of allegations and from holding perpetrators liable. In view of this diagnosis, this case study offers 11 recommendations for improving the legal structure underlying bail hearings and the culture of relevant judicial actors.