Commissioners: James L. Cavallero, Esmeralda Arosemana de Troitiño

Petitioners: Brazilian Institute of Criminal Science (IBBCRM), Conectas Human Rights, Global Justice.

State: Brazil

On March 22, 2017, Petitioners from Brazilian civil society organizations presented on issues of overcrowding and violence within the Brazilian prison system before the Inter-American Commission on Human Rights (IACHR).

Paulo Malvezzi of IBBCRM described the gravity and pervasiveness of human rights abuses in Brazilian prisons. He described the many well documented cases of torture, violence, overcrowding, and lack of access to health and legal services. He also noted that indigenous and foreign populations as well as homosexual and trans women are most affected, while the white-male controlled system protects perpetrators of abuses rather than punishing them.

Rafael Custodio of Conectas Human Rights spoke to Brazil’s recent violent prison rebellions, noting that in the first fifteen days of 2017 alone, 130 people were killed in the prison system. He stressed that these violent rebellions are the result of human rights abuses perpetrated by the state. In response to the recent killings, public officials made callous and insensitive remarks, and announced some measures to address the problems, such as creating new prisons, expanding space in existing prisons, and authorizing military intervention. Custodio believes that such measures may cause even more human rights violations.

Isabel Lima of Global Justice recalled that the IACHR held a hearing about the prison system in 2010 and that problems of overcrowding, and violations of the rights of personal liberty and presumption of innocence, have continued and worsened since that time. Although Brazil instituted a system of probable cause hearings two years ago in an effort to curb pre-trial detention, this effort has been unsuccessful. She also spoke to the issue of police violence, noting many reports of violence at hearings but very low rates of investigation. She made a number of recommendations to the state, including reducing penalties, reforming drug laws, prohibiting prison privatization and demilitarizing police.

Marco Antônio Severo Silva of the National Penitentiary Department responded for the state of Brazil. He sought to “demistify” the concept of a “mass incarcaration policy” saying that no such policy exists, and high levels of incarceration is the result of many different administrations’ disparate policies. He noted that an expansion of the behaviors classified as crimes could be a root cause of the increase in incarceration, and he said that organized crime groups inside of prisons are the root causes of violent rebellions. He expressed concern on behalf of the state about mass incarceration and violence in prisons and proposed solutions such as building more prison space and hiring more security staff to keep violence at bay. He also mentioned some recent changes to the criminal code to encourage alternatives to detention.

Commissioner James Cavallero, who is the Rapporteur on Persons Deprived of Liberty, expressed concern over the pervasive issues of police violence and public officials’ lack of concern over killings in prisons. He discredited the idea of the state having no official mass incarceration policy, pointing to the reality of mass incarceration, illustrated by the fact that incarceration has increased six-fold since 1990, whereas the murder rate has only increased two-fold. Finally, he admonished the state to address the root policy causes of mass incarceration rather than ramping up prison space and staff to accommodate it. Commissioner Esmeralda Arosemana de Troitiño emphasized the importance of cooperation between the executive and judiciary branches to address the issues.

Author’s Legal Analysis

Principal I of The OAS Principles and Best Practices on the Protection of Person’s Deprived of Liberty in the Americas holds that “all persons [deprived of liberty] subject to the jurisdiction of any Member State of the Organization of American States shall be treated humanely.” Principal III prohibits arbitrary detention, principals X-XIII provide that all persons deprived of liberty should have access to health services, clothing, food, hygiene, and educational and cultural activities, principal XVIII prohibits overcrowding, and principal XXIII mandates prevention of violence in prisons. Brazil is bound by these principles and is currently in violation of the above named principles and others due to unnecessary pre-trial detention, poor conditions in detention facilities, and rampant violence in its prisons.