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The Right to a “Custody Hearing” under International Law

by Maria Laura Canineu
February 3,2014

A person who is arrested has a right to be brought promptly before a judge. This is a longstanding and fundamental principle of international law, crucial for ensuring that the person’s arrest, treatment, and any ongoing detention are lawful.
Yet, until now, Brazil has not respected this right. Detainees often go months before seeing a judge. For instance, in São Paulo state, which houses 37 percent of Brazil’s total prison population, most detainees are not brought before a judge for at least three months. The risk of ill-treatment is often highest during the initial stages of detention, when police are questioning a suspect. The delay makes detainees more vulnerable to torture and other serious forms of mistreatment by abusive police officers.
In 2012, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reported that it had received “repeated and consistent accounts of torture and ill-treatment” in São Paulo and other Brazilian states, “committed by, in particular, the military and civil police.” The torture had allegedly occurred in police custody or at the moment of arrest, on the street, inside private homes, or in hidden outdoor areas, and was described as “gratuitous violence, as a form of punishment, to extract confessions, and as a means of extortion.”
In addition to violating the rights of detainees, these abusive practices make it more difficult for the police to establish the kind of public trust that is often crucial for effective crime control. These practices undermine legitimate efforts to promote public security and curb violent crime, and thus have a negative impact on Brazilian society as a whole.
The right to be brought before a judge without unnecessary delay is enshrined in treaties long ago ratified by Brazil, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. The United Nations Human Rights Committee, which is responsible for interpreting the ICCPR, has determined that the delay between the arrest of an accused and the time before he is brought before a judicial authority “should not exceed a few days, ” even during states of emergency.
Other countries in Latin America have incorporated this right into their domestic law. For instance, in Argentina, the federal Criminal Procedure Code requires that in cases of arrest without a judicial order, the detainee must be brought to a competent judicial authority within six hours.
In contrast, Brazil’s criminal procedure code requires that when an adult is arrested in flagrante and held in police custody, only the police files of the case need to be presented to the judge within 24 hours, not the actual detainee. Judges evaluate the legality of the arrest and make the decision about whether to order continued detention or other precautionary measures based solely on the written documents provided by the police.
The code establishes a maximum of 60 days for the first judicial hearing with the detainee, but does not explicitly say when this period begins. In practice, this often means that police in Brazil can keep people detained, with formal judicial authorization, for several months, without giving the detainee a chance to actually see a judge.
According to the code, the only circumstance in which police need to bring a person before the judge immediately applies to cases of crimes not subject to bail in which arresting officer was not able to exhibit the arrest order to the person arrested at the time of arrest. Otherwise, the detainee may also not see a judge for several months.

(www.hrw.org. Editado e adaptado)

Leia o texto para responder às questões:


The Right to a “Custody Hearing” under International Law

by Maria Laura Canineu
February 3,2014

A person who is arrested has a right to be brought promptly before a judge. This is a longstanding and fundamental principle of international law, crucial for ensuring that the person’s arrest, treatment, and any ongoing detention are lawful.
Yet, until now, Brazil has not respected this right. Detainees often go months before seeing a judge. For instance, in São Paulo state, which houses 37 percent of Brazil’s total prison population, most detainees are not brought before a judge for at least three months. The risk of ill-treatment is often highest during the initial stages of detention, when police are questioning a suspect. The delay makes detainees more vulnerable to torture and other serious forms of mistreatment by abusive police officers.
In 2012, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reported that it had received “repeated and consistent accounts of torture and ill-treatment” in São Paulo and other Brazilian states, “committed by, in particular, the military and civil police.” The torture had allegedly occurred in police custody or at the moment of arrest, on the street, inside private homes, or in hidden outdoor areas, and was described as “gratuitous violence, as a form of punishment, to extract confessions, and as a means of extortion.”
In addition to violating the rights of detainees, these abusive practices make it more difficult for the police to establish the kind of public trust that is often crucial for effective crime control. These practices undermine legitimate efforts to promote public security and curb violent crime, and thus have a negative impact on Brazilian society as a whole.
The right to be brought before a judge without unnecessary delay is enshrined in treaties long ago ratified by Brazil, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. The United Nations Human Rights Committee, which is responsible for interpreting the ICCPR, has determined that the delay between the arrest of an accused and the time before he is brought before a judicial authority “should not exceed a few days, ” even during states of emergency.
Other countries in Latin America have incorporated this right into their domestic law. For instance, in Argentina, the federal Criminal Procedure Code requires that in cases of arrest without a judicial order, the detainee must be brought to a competent judicial authority within six hours.
In contrast, Brazil’s criminal procedure code requires that when an adult is arrested in flagrante and held in police custody, only the police files of the case need to be presented to the judge within 24 hours, not the actual detainee. Judges evaluate the legality of the arrest and make the decision about whether to order continued detention or other precautionary measures based solely on the written documents provided by the police.
The code establishes a maximum of 60 days for the first judicial hearing with the detainee, but does not explicitly say when this period begins. In practice, this often means that police in Brazil can keep people detained, with formal judicial authorization, for several months, without giving the detainee a chance to actually see a judge.
According to the code, the only circumstance in which police need to bring a person before the judge immediately applies to cases of crimes not subject to bail in which arresting officer was not able to exhibit the arrest order to the person arrested at the time of arrest. Otherwise, the detainee may also not see a judge for several months.

(www.hrw.org. Editado e adaptado)

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What is organized crime?

Organized crime was characterised by the United Nations, in 1994, as: “group organization to commit crime; hierarchical links or personal relationships which permit leaders to control the group: violence, intimidation and corruption used to earn profits or control territories or markets; laundering of illicit proceeds both in furtherance of criminal activity and to infiltrate the legitimate economy; the potential for expansion into any new activities and beyond national borders; and cooperation with other organized transnational criminal groups.”

It is increasingly global. Although links between, for example, mafia groups in Italy and the USA have existed for decades, new and rapid means of communication have facilitated the development of international networks. Some build on shared linguistic or cultural ties, such as a network trafficking drugs and human organs, which links criminal gangs in Mozambique, Portugal, Brazil, Pakistan, Dubai and South Africa. Others bring together much less likely groups, such as those trafficking arms, drugs and people between South Africa, Nigeria, Pakistan and Russia, or those linking the Russian mafia with Colombian cocaine cartels or North American criminal gangs with the Japanese Yakuza. Trafficked commodities may pass from group to group along the supply chain; for instance heroin in Italy has traditionally been produced in Afghanistan, transported by Turks, distributed by Albanians, and sold by Italians.

Organized crime exploits profit opportunities wherever they arise. Globalization of financial markets, with free movement of goods and capital, has facilitated smuggling of counterfeit goods (in part a reflection of the creation of global brands), internet fraud, and money-laundering. On the other hand, organized crime also takes advantage of the barriers to free movement of people across national borders and the laws against non-medicinal use of narcotics: accordingly it earns vast profits in smuggling migrants and psychoactive drugs. Briquet and Favarel have identified deregulation and the “rolling back of the state” in some countries as creating lacunae that have been occupied by profiteers. The political changes in Europe in the late 1980s fuelled the growth in criminal networks, often involving former law enforcement officers. Failed states, such as the Democratic Republic of Congo or Sierra Leone, have provided further opportunities as criminal gangs smuggle arms in and commodities out, for example diamonds, gold, and rare earth metals, often generating violence against those involved in the trade and in the surrounding communities. Finally, there are a few states, such as the Democratic Republic of Korea and Burma and Guinea-Bissau (once described as a narco-state) where politicians have been alleged to have played an active role in international crime.

Organized criminal gangs have strong incentives. Compared with legitimate producers, they have lower costs of production due to the ability to disregard quality and safety standards, tax obligations, minimum wages or employee benefits. Once established, they may threaten or use violence to eliminate competitors, and can obtain favourable treatment by regulatory authorities either through bribes or threats.

(www.globalizationandhealth.com. Adaptado)