The custody hearing is a compulsory process in Brazil, as outlined in the San José Pact of Costa Rica and governed by CNJ Resolution No. 213/2015, requiring the immediate appearance of the arrested individual before a judge within one day.
The primary goal is to confirm the legality of the detention facility, the necessity of custody, and any instances of abuse or torture.
The lawyer’s performance is crucial for ensuring the rights of the accused, advocating for temporary release, and contesting any irregularities in the arrest process.
This article discusses how the custody hearing functions and the key practical elements of defending a case. Take a look!
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Goals of the Custody Audience
The custody hearing was introduced nationwide in Brazil by the CNJ in 2015 and started aligning the laws with Law No. 13,964/2019 (Anti-Crime Package), which modified Article 310 of the Code of Criminal Procedure.
The primary objectives of the custody hearing are to guarantee that the arrest is conducted in accordance with the law and upholds the individual’s fundamental rights.
- The judge assesses the legality of the prison by examining adherence to legal standards, including the handling process, reasons for detention, and procedural rights. If any violations are found, the judge may order the individual’s immediate release.
- The magistrate determines if the detainee can be released with precautionary measures or if preventive detention is necessary based on the case circumstances and Criminal Procedure Code criteria.
- During the hearing, the defendant can report any mistreatment by State officials while in custody, during transport, or in detention. If the judge finds signs 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 process, which includes promptly assessing the legality of imprisonment and safeguarding the rights provided at no cost. The steps in the procedure are as follows:
- The prisoner must be brought before a judge within 24 hours of the arrest, as mandated by the Supreme Court (STF) and international human rights agreements signed by Brazil.
- The magistrate interviews the prisoner to inquire about any mistreatment, violence, or torture experienced while in police custody. If there is evidence of misconduct, the case may be forwarded to the Prosecutor’s Office for further action.
- The prosecutor reviews the legality of the detention, ensuring that all legal conditions are met. They may request changes to the detention status based on their assessment.
- The defense attorney or public defender argues for the defendant’s release by challenging the legality of the imprisonment and seeking to overturn the preventive detention or request alternative custody measures.
- The judge will make a decision after listening to the parties involved and may choose from the following options.
- If an arrest is found to be illegal, the prisoner is promptly set free.
- The judge can grant temporary freedom by deciding to release the defendant with or without imposing precautionary measures like wearing an electronic ankle monitor, attending court regularly, or avoiding contact with specific individuals.
- If the judge believes there is a threat to public order, legal procedure, or law enforcement, they can order preventive detention to keep the accused in custody.
The custody hearing is a crucial process to prevent unjust arrests, uphold basic rights, and guarantee transparency and legality in the criminal justice system.
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Lawyer’s role in a custody hearing
The attorney has an important role in the custody hearing, making sure the prisoner’s rights are upheld and striving for the optimal legal outcome for the situation.
The performance includes various elements, such as examining the legality of incarceration and defending 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 his rights from the start of the hearing.
- Right to remain silent in order to prevent self-incrimination.
- Right to legal representation from a private or public attorney.
- Communication with family members is a right, allowing individuals to keep their loved ones informed about their well-being and whereabouts.
Make sure that the prisoner is not subjected to excessive pressures to admit to crimes or agree to detrimental terms for his defense.
Examine the legality of the prison.
The attorney needs to ensure that the prison has met all legal standards. Common irregularities that may warrant easing the imprisonment include:
- Absence of a valid reason for imprisonment, such as a clearly fabricated accusation or lack of clear evidence of a crime.
- Entering someone’s home without a court order is prohibited, unless specified by law in exceptional circumstances.
- Utilization of unauthorized evidence, like coerced confessions or unlawful seizures.
- Police misconduct, like physical violence, torture, or humiliating treatment.
- Failure to comply with the Supreme Court’s (STF) requirement of submitting to the judge within 24 hours.
If any illegal actions are discovered, the attorney should demand the prompt release of the defendant by arguing that the imprisonment is invalid.
Request temporary release
If the arrest is lawful, the lawyer can request temporary release, with or without bail, to show that the defendant poses no threat to the legal proceedings or society.
The primary reasons for providing temporary release are:
- Lack of repeated criminal behavior.
- Good manners and a permanent home.
- Lawful job and strong family connection.
- Crimes committed will be evaluated based on their nature, with a focus on cases that do not involve violence or serious threats, like property crimes without physical harm.
The request might involve different preventive measures instead of imprisonment, such as regular court appearances or electronic surveillance, as outlined in Article 319 of the CPP.
Fighting against the imposition of pretrial detention
The lawyer must challenge the request for converting the prison sentence to prevent, if the Public Prosecutor requests it, by arguing the absence of legal requirements.
Article 312 of the CPP mandates specific justifications for ordering pretrial detention, which is only permissible under certain conditions.
- Risk of public disorder due to the possibility that individuals who are expensive to detain may commit further crimes.
- Risk of providing guidance in order to pressure witnesses or tamper with evidence.
- Possibility of evading punishment through criminal law enforcement.
The lawyer needs to show that releasing the defendant will not hinder the case if these elements are missing.
Report any instances of police misconduct or torture.
The custody hearing is also intended to safeguard the prisoner’s physical and psychological well-being. The attorney needs to inquire about any instances of violence or abuse experienced by the prisoner while in prison, during transportation, or while in custody.
If abuse is suspected, the defense can ask for:
- Examining the body thoroughly to document any injuries is a delightful process.
- Investigation initiated against the involved agents.
- Referring the Public Prosecutor and the Police Department for disciplinary and criminal actions.
The lawyer’s role is crucial in preventing institutional violence and ensuring dignified treatment of prisoners.
Practical advice for attorneys during child custody hearings
- The defense should remain composed and act professionally by being firm yet respectful, while also steering clear of unnecessary conflicts with the judge or prosecutor.
- Ensure the attendance of the Public Prosecutor and Public Defender; in case the Prosecutor is absent, note the situation and request the hearing’s nullity if needed.
- Whenever feasible, make sure to speak first: address the Public Prosecutor directly to present defense arguments without being influenced by the accusatory narrative.
- The request for freedom should be grounded on the lack of conditions for preventive detention and the principle of innocence until proven guilty.
- Utilize current case law to support your arguments, particularly regarding different prison precautionary measures.
- If the customer has health issues, such as medical conditions, substance dependence, or psychiatric disorders, it may be appropriate to consider releasing them from prison.
- Report any irregularity: in case of infringements on rights, request to be included in the official records and, if needed, take appropriate actions afterward.
The Advocate’s Role in Custody Hearings
The custody hearing plays a crucial role in protecting the prisoner’s rights and minimizing unnecessary arrests.
The lawyer plays a crucial role in contesting unlawful arrests, averting automatic detention, and safeguarding against mistreatment.
The lawyer can achieve positive outcomes for their client by using technical expertise and strategic argumentation, ensuring that legal procedures are followed and the presumption of innocence is upheld.
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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 a detained individual before a judge within 24 hours of their arrest. It is based on international agreements, national resolutions, and Brazilian laws to ensure that arrests are conducted within legal boundaries while upholding the rights of the detained individual.
What are the three main purposes of the custody hearing?
The primary aims of the custody hearing include assessing the legality of the detention, determining whether the detainee can be released with or without conditions, and investigating any allegations of mistreatment or torture by state officials.
What are the primary abnormalities that the attorney should investigate in order to argue for the prisoner’s release?
The attorney needs to review certain irregularities that could warrant the release from prison: Lack of valid reason, like obvious falsification or absence of clear wrongdoing; Unauthorized search of a home without a court order (unless in specific legal exceptions); Utilization of illegal evidence, such as coerced confessions or unlawful seizures; Police misconduct, including physical violence, torture, or inhumane treatment; Failure to present the detainee to a judge within 24 hours, as mandated by the STF.
What are the primary points that the attorney could present to request temporary release?
The lawyer may argue for interim release based on lack of previous criminal behavior, evidence of good social conduct and stable living arrangements, lawful employment and strong family ties, the nature of the offense committed (especially if non-violent), absence of legal grounds for pre-trial detention as per Article 312 of the Criminal Procedure Code, and the potential for alternative precautionary measures as outlined in Article 319 of the Criminal Procedure Code.
What actions should the lawyer take to fight against the imposition of pretrial detention?
The lawyer should challenge the Public Prosecutor’s request by showing the legal requirements are not met, arguing that there are no specific justifications for public order risk, proving the defendant won’t obstruct the legal process, showing no risk of escape or harm to law enforcement, demonstrating existing precautionary measures are adequate, and emphasizing the exceptional nature of preventive prison and the presumption of innocence.
How should the lawyer proceed in recognizing evidence of police mistreatment or torture?
To identify signs of police misconduct or torture, the attorney should request a physical exam to document injuries, demand an investigation against the officers, refer the case to the authorities, detail the allegations of violence, photograph any injuries with consent, request protective measures from the judge, and consider legal actions like habeas corpus.
What precautions should the lawyer take concerning clients with unique medical needs?
The lawyer should focus on health issues that warrant release from prison, provide medical evidence of pre-existing conditions, argue that the prison system cannot provide appropriate treatment, request specific medical evaluations as needed, ask for alternative measures suitable for the client’s health, and recommend specialized treatment for substance abuse or psychiatric disorders.
What should be the attorney’s stance like in the custody hearing?
The attorney should maintain a calm and professional demeanor during the custody hearing, providing a strong yet respectful defense. They should acknowledge the presence of the Public Prosecutor and Public Defender, noting any absences. It is important to be proactive by seeking to speak first to present defense arguments independently from the accusatory narrative. The defense should be well-supported, emphasizing the lack of grounds for preventive imprisonment and the presumption of innocence. The attorney should be ready with current legal precedents to strengthen their arguments and be vigilant in noting any irregularities that arise during the proceedings.
What outcomes can the judge decide on following the custody hearing?
After the custody hearing, the judge has the authority to decide on prison relaxation, interim freedom concession, or preventive prison conversion based on various factors such as legality, risk assessment, and public safety.
