Fachin’s thesis, vetoing intimate searches would cause impacts on security

Summary of this report:

• In a virtual trial at the STF, rapporteur Edson Fachin suggested banning the practice of strip searches on visitors to prisoners across the country. When his thesis was winning by 5 to 4, Gilmar Mendes asked for prominence and paralyzed the process, which will be resumed in the physical Plenary.
• The extent of Fachin’s restrictions has generated concern among public safety experts, who point to serious risks in understanding. The minister even proposed that all evidence found in these procedures be annulled by the courts.
• Alexandre de Moraes disagreed and suggested that the journals proceed with more criteria and only in exceptional cases.
• Items such as drugs, weapons, cell phones and even papers with messages to organized crime leaders tend to enter prisons secretly with visitors. Equipment for mechanical inspections is not a reality in most states and has weaknesses.

On May 12, the Federal Supreme Court (STF) began the judgment that could prohibit any form of intimate search of visitors to prisons in the country. In a virtual plenary session, ministers analyzed an appeal with recognized general repercussions, that is, the outcome would serve as a parameter for all similar cases in court.

At the trial, the ministers had already formed a majority to follow the thesis of the rapporteur, Edson Fachin, who understood that searches in the genital regions or with exposure of part of the body in visitors to the country’s prison system would be unconstitutional, as they would violate the dignity of the human person , as well as the fundamental rights to honor, intimacy and privacy.

In the thesis, Fachin determined that prisons that do not have electronic equipment to detect the entry of illicit objects, such as drugs, weapons, cell phones and even papers with messages to organized crime leaders, could not justify the lack of devices to carry out searches intimate. The minister also determined that all evidence collected in these procedures should be invalidated.

The rigidity of the thesis, which had already been accompanied by six ministers, attracted concern from specialists in public security, since in his vote Fachin treated as if all magazines of this type were presumably and completely vexatious and humiliating. The rules proposed by the minister were much broader than what happens in several developed countries, which allow strip searches, but with clear criteria to prevent abuse and excesses.

However, on the last day of the virtual trial, May 19, Minister André Mendonça changed his vote in support of Fachin’s thesis, and with that, the majority that had formed hours before to prohibit the procedure was undone. After Mendonça’s change of understanding, Minister Gilmar Mendes decided to ask for prominence, removing the trial from the virtual modality and taking it to the physical plenary for face-to-face discussion between the ministers.

The divergence from Fachin’s thesis, opened by Alexandre de Moraes, was followed by three other ministers. The judgment, when it was suspended, had 5 votes to 4 for the prohibition of intimate searches and, with the request for emphasis, the score will be restarted. There is still no date for the resumption of the trial in person.

For sources heard by People’s Gazettethere is a need to establish stricter criteria for the intimate search procedure to avoid abuse, however Fachin’s broad understanding would have serious consequences for public safety and would put detainees, family members and agents of the penitentiary system at risk.

“Prison establishments would be more vulnerable and susceptible to the entry of illicit objects, because the introduction of these items by family members is still a common practice. This exposes the family member himself, because he often takes it because he has to. So stricter inspections are a form of protection for the visitor himself”, explains criminal lawyer Ana Claudia Guimarães, former director of prisons in Ceará.

“If there is no such strict inspection, the family member can be pressured by the prisoner. And often those who take it are above suspicion. This ends up exposing both the prison establishment to risk – because, like drugs, weapons can pass – and the visitor himself”, he continues.

understand the case

The process in question, which reached the STF in 2016, began five years earlier when a woman was arrested red-handed in the Porto Alegre Public Prison, the former Presídio Central, with 100g of marijuana hidden in the genital area inside a condom. The drug, according to her, would be for the brother who was arrested. The procedure was carried out after the prison received an anonymous complaint regarding the woman, who was later convicted of the crime of drug trafficking. The initial penalty, which was for compliance under an open regime, was replaced by providing services to the community.

The State Public Defender’s Office appealed against the decision, and the Court of Justice of Rio Grande do Sul (TJ-RS) decided to acquit her on various grounds, such as the occurrence of an impossible crime, when the consummation of the crime is not feasible. In other words, the magistrates understood that she would invariably have to undergo a rigorous search, which would make it impossible for her to commit the crime. It should be noted, however, that the personal search is not a mandatory criterion, and occurs upon well-founded suspicion – that is, it was the anonymous complaint that motivated the intimate search, leading to the identification of the drug.

The Public Ministry of Rio Grande do Sul (MP-RS) appealed the decision, taking the case to the STF. The body’s understanding was that prohibiting intimate examination even when there is no objection from the examinee would mean a “true safe conduct to the commission of crimes”. Until now, the intimate magazine aspect was not even in focus. When appealing the measure, however, the Public Prosecutor’s Office brought this issue to the fore, which motivated the Supreme Court’s analysis specifically on the procedure.

In a dissenting vote, Moraes points out “catastrophic effects” in the thesis defended by Fachin

In disagreement with Edson Fachin’s vote, Moraes argued that strip searches cannot always and automatically be defined as vexatious and degrading – and, therefore, unconstitutional. “Giving this automaticity, that an intimate search is vexatious in itself, this will have catastrophic effects in many branches of criminal prosecution”, said Moraes.

The minister brought examples from several countries “that proclaim and defend absolute respect for human rights” and that even so do not prohibit the practice. According to Moraes, what is most common in legal systems around the world is the prohibition of excesses and abuses, but not the absolute impossibility.

“The exercise of visitation rights cannot be allowed to be used for the entry of drugs, cell phones and orders from criminal factions, for communication between organized crime inside and outside prisons,” he declared. “Searches are absolutely necessary”, he pointed out, stressing that detection equipment is not always able to identify illicit items carried by visitors.

In fact, according to data from the National Penitentiary Department (Depen), in the first half of 2020 alone, 25,500 cell phones and 83 firearms were seized with visitors from prisoners who were trying to enter prison units with the items. During this period, 254,000 drug arrests were also made on visitors to inmates.

Finally, Moraes argued that since it would not be possible to consider all strip searches as unconstitutional, it would also be impossible to assume that all evidence collected in procedures of this nature was illegal.

The minister proposed a new thesis, replacing Fachin’s, suggesting that searches of this type should be an exceptional measure for when other methods are not enough, and for them there must be a strict protocol. In cases where there is a need to search the genital areas, he pointed out that the measure must be provided to the visitor; If you do not want to do this, you will not be allowed access to the prison. The physical examination in these regions should also be obligatorily performed by a doctor of the same sex as the visitor, according to the minister.

With the absence of a specific national law for strip searches, states maintain different rules

The personal magazine is provided for in art. 244 of the Code of Criminal Procedure (CPP), which determines that the procedure does not depend on a court order in cases where there is “founded suspicion that the person is in possession of a prohibited weapon or of objects or papers that constitute evidence”.

The norms for strip searches vary from state to state. While some prohibit the practice, others allow it under specific rules, in particular determining that they are performed by people of the same gender as the visitor. The lack of search equipment, such as body scanners, metal detectors and X-ray machines, for example, are common limitations in most states.

There are, in the National Congress, bills in progress that deal with the subject. The main one, PL 7,764/2014, was approved by the Senate and is awaiting consideration by the Chamber. The proposal provides for the prohibition of total or partial stripping in searches, determines the prioritization of the use of electronic equipment and allocates the manual search for specific situations, to be carried out obligatorily by a person of the same gender as the visitor.

For Ana Guimarães, although the absolute restriction on manual searches is harmful, the procedure cannot be done indiscriminately. The former director of prisons agrees with the divergence opened by Moraes and points out that if there is well-founded suspicion and the visitor chooses not to undergo an intimate search, he can leave without entering the prison, not being obliged to undergo the procedure.

Adriano Klafke, a specialist in public security and Constitutional Law, makes a reservation regarding the full replacement of manual searches by mechanics, through body scanners and other devices. “These devices are not completely reliably effective when it comes to items introduced into cavities, from small arms with rubber or plastic casings, and even cell phones. The effectiveness in these cases is quite low, ”he says. Klafke reinforces that the eventual approval of the thesis suggested by Fachin would translate into enormous facilitation for organized crime, especially for factions linked to drug trafficking.