Domestic, Brazil Gisela Sin Gomiz Domestic, Brazil Gisela Sin Gomiz

Supreme Federal Court of Brazil, Habeas Corpus nº 143.641 / SP - Brazil

Background

The case was brought on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves, by the Defensoria Pública da União (Public Defenders’ Office), the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU), and other solicitors to challenge the automatic adoption of preventative detention of these women.

The applicants affirmed that preventive imprisonment, which disproportionately affected poor women and their families, by confining pregnant women in precarious prisons, denying them access to prenatal health programs, regular assistance during pregnancy and after childbirth, and also depriving children of adequate conditions for their development, constituted inhuman, cruel and degrading treatment that violated the constitutional principles related to the individualization of punishment, the prohibition of cruel punishment and respect for the physical and moral integrity of the prisoner. They reported that, despite the entry into force of Law no. 13.257/2016, which amended the Code of Criminal Procedure to enable the substitution of pre-trial detention for house arrest for pregnant women and mothers of children, this option had been rejected by the judiciary in approximately half of the cases due to the seriousness of the alleged offence and the need to demonstrate the inadequacy of the prison environment in each specific case. They also claimed that the lack of nurseries and mother-child centres in these facilities (as required by the Law of Criminal Enforcement (LEP)) affects the development of children, “which not only affects their learning and socialization capacity, but also seriously violates their constitutional, conventional and legal rights” (p. 6).

This was the first time that the Supreme Federal Court of Brazil admitted a collective habeas corpus.

Reasoning

First, Justice Ricardo Lewandowski recognised that collective actions were probably "the only viable solution to ensure effective access to justice, especially for the most socially and economically vulnerable groups" (p.1) in the country and that the use of a a collective habeas corpus was justified given that it was intended to safeguard one of the most important fundamental human rights, which is freedom.

Justice Lewandowski affirmed that, as emerged from the decision ADPF 347 MC/DF, there was a deficiency of structural character in prison and a “culture of incarceration” (p. 9) revealed by the overuse of provisional imprisonment for poor and vulnerable women. Therefore, women were effectively subjected to degrading situations, especially being deprived of pre-natal and post-natal medical care and children were suffering from the lack of nurseries and day-care centres. He referred to the case Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) to illustrate the State’s inability to ensure maternity care for the female population. He stressed that, as stated in Millennium Development Goal (MDG) 5 and Sustainable Development Goal (SDG) 5, attention to maternal health was considered one of the priorities to be observed by the different countries in terms of their commitment to promoting development. By protecting maternal, newborn and child health, as well as reproductive health, the Judge held that the State would also be giving also effect to the Constitution (arts. 5(II), 5(XLI), 5(XLV), 5(L), 5(XLVIII) and 5(XLIX)) and to the Law no. 11.942/2009, which promoted changes in the Criminal Enforcement Law in this regard. However, Justice Lewandowski concluded that neither the Constitution nor the above mentioned domestic laws had been respected by the authorities responsible for the prison system and that evidence and reports showed that “there [was] a systematic breach of constitutional, conventional and legal rules regarding the rights of women prisoners and their children" (p. 20). This conclusion was also consistent with international standards (Universal Declaration of Human Rights , the International Covenant on Civil and Political Rights , the American Convention on Human Rights, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas , the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders ('the Bangkok Rules')) and the position of the Federal Supreme Court (Repercussão Geral de número 423).

Justice Lewandowski stated that children under the responsibility of these women unjustly suffered the consequences of their imprisonment, contravening articles 227 and 5(XLV) of the Constitution, articles 7, 8 and 9 of the Early Childhood Statute (Law no. 13.257/2016) and article 318 and 319 of the Criminal Procedure Code (Law no. 3.689/1941).

Remedy

Pregnant women, mothers of children up to the age of 12, and mothers of children with disabilities were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants, in which case their imprisonment has to be analysed on a case-by-case basis by the judges.The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Role of children

Children under the age of 12 of women in pre-trial detention in the national were represented by Defensoria Pública da União (Public Defenders’ Office) and the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU).

Enforcement and other outcomes

Pregnant women, mothers of children up to the age of 12, and mothers with disabled children were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants. The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Following the Federal Supreme Court's decision, Law 13.769 was enacted on 19 December 2018 , introducing amendments to article 318-A in the Criminal Procedure Code (Law no. 3.689/1941). This law not only regulated the substitution of pre-trial detention for house arrest for pregnant women and mothers or women responsible for children under 12 or persons with disabilities, but went further and established similar conditions for serving a prison sentence for women convicted in the same situation. To a great extent it was the result of the Federal Supreme Court's effort to reduce the imprisonment of women.

The implementation and enforcement of the decision has been limited. According to Prison Insider, “between December 2018 and December 2019, 6,357 women were preventively arrested in the state of São Paulo”, of which 3,168 were women that met the requirements of the law for house arrest. Of the total number of women who meet the requirements of the law, 915 remained provisionally imprisoned, meaning that “29% of mothers, pregnant women or those responsible for people with disabilities had not the benefit of house arrest”. In the Brazilian central region, where the largest number of potential women benefiting from the Legal Framework of Early Childhood were concentrated, “of the 1,435 women in custody, 78% fit the criteria, but 33% remained in prison” by the end of 2019.  11 out of 16 prison units inspected by the Secretariat of Penitentiary Administration (SAP) answered affirmatively to whether the data collection of the arrested women contained matters related to maternity as required by the law, while the other 5 prison units did not respond. This absence of data on maternity in compliance with the law “impaired the monitoring of conditions of women prisoners” and “the right to information and transparency of public bodies”.

Significance of the case from a CRSL perspective

This was the first collective habeas corpus that was admitted by the Supreme Federal Court of Brazil and it was applicable to the whole national territory.

Children were identified as a priority group in circumstances where it is not appropriate to place women in preventative incarceration, subjecting their children to the precarious incarceration facilities. The judgment considered the effects of having the children taken from their mothers who are incarcerated in circumstances where no family members could take over their care, placing them in a situation of vulnerability, and breaking the familial bond of the child and the mother, with potentially nefarious psychological consequences to children.

The judgment sought to ensure that the issues above were minimized by the requirement that the relevant group under consideration is granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the children.

Country

Brazil

Forum and date of decision

Supremo Tribunal Federal, Segunda Turma (Supreme Federal Court of Brazil, 2nd panel)

February 20, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

Applicant’s information:

(on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves)

Amici Curiae:

Av. Gal Afonso Albuquerque Lima
Edifício Seplag - 2ºandar
Cambeba - Fortaleza, CE

State of Parana

Rua José Bonifácio, 66 - Centro
80020-130 - Curitiba - PR

State of Amapa

Avenida Raimundo Álvares da Costa, 676

Centro, Macapá - AP

State of Espirito Santo

Praça Manoel Silvino Monjardim, nº54 - Centro

Vitória - ES

State of Goias

Alameda Cel. Joaquim de Bastos, nº 282

Qd. 217, Lt. 14 - Setor Marista

State of Maranhao

Rua da Estrela, 421

Praia Grande, Centro

São Luís - MA

State of Para

Rua Padre Prudêncio, nº 154

Belém - Pará

State of Paraiba

Rua Deputado Barreto Sobrinho, 168

Tambiá, João Pessoa - PB

State of Pernambuco

Rua Marques do Amorim, 127,

CEP 50070-330, Boa Vista,

Recife-PE

State of Piaui

Rua Nogueira Tapety, nº 138,

Noivos – Teresina-PI

State of Rio Grande do Norte

Rua Sérgio Severo, 2037,

Lagoa Nova, Natal-RN

State of Rondonia

Av. Jorge Teixeira, nº: 1722

Embratel, Porto Velho – RO

State of Roraima

Avenida Sebastiao Diniz, nº 1165

Centro, Boa Vista -RR

State of Rio Grande do Sul

Rua Sete de Setembro, 666 – Centro Histórico

Porto Alegre - RS

State of Sergipe

Travessa João Francisco da Silveira, n° 44,
Bairro Centro - Aracaju - Sergipe

State of Sao Paulo

State of Tocantins

Quadra AA SE 50, Avenida Joaquim Teotônio Segurado,

Plano Diretor Sul, Palmas - TO

State of Bahia

Avenida Ulisses Guimarães, nº 3.386, Edf. MultiCab Empresarial
CEP - 41745-007, Sussuarana, Salvador/Bahia

State of Distrito Federal

SCN Qd. 01, Conjunto G, Lote 01

Ed. Rossi Esplanada Business

State of Minas Gerais

Rua dos Guajajaras, 1707 - Barro Preto Belo Horizonte, Minas Gerais

State of Rio de Janeiro

Rua dos Guajajaras, 1707

Barro Preto Belo Horizonte, Minas Gerais

State of Mato Grosso

Rua Engenheiro Agrônomo Arnaldo Duarte Monteiro, s/nº

State of Mato Grosso do Sul

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