judgment on strip searches goes to the physical plenary

Minister Gilmar Mendes, of the Federal Supreme Court (STF), asked for prominence in the judgment on strip searches of visitors to prisoners in the Brazilian prison system. With this, the judgment will leave the virtual plenary and must be restarted (from scratch) in the physical plenary of the Court. No date has yet been set for the new trial.

Before Mendes’s request, the virtual trial score was 5 to 4 in favor of banning strip searches. For Minister Edson Fachin, who is the rapporteur of the case, the practice of intimate searches is incompatible with the 1988 Constitution, among other points, for violating the dignity of the human person. Fachin agreed with the arguments presented in an extraordinary appeal to the STF, in which the defense of a woman from Rio Grande do Sul asked for the annulment of evidence obtained through intimate searches. The appeal has recognized general repercussions.

“It is inadmissible the vexatious practice of the intimate search in social visits in establishments of compulsory segregation, forbidden in any form or way the stripping of visitors and the abominable inspection of their body cavities, and the evidence obtained from it is illicit, not fitting as excuses the absence of electronic and radioscopic equipment”, said the rapporteur.

Fachin was accompanied by ministers Cármen Lúcia, Luís Roberto Barroso, Rosa Weber and Gilmar Mendes.

On the other hand, the divergence was opened by Minister Alexandre de Moraes. He was accompanied by Dias Toffoli, Kassio Nunes Marques and André Mendonça. Luiz Fux had not yet voted.

Before the prominent request, Fachin and four other ministers had presented the understanding that the absence of equipment for detecting the entry of objects in prisons would not justify carrying out intimate searches. In practice, prisons that do not have such mechanisms will be even more vulnerable to the clandestine entry of items such as cell phones and drugs into prisons. In parallel, these five justices voted so that the evidence obtained from the procedure could not be used in possible criminal proceedings.

André Mendonça changes the vote

Minister André Mendonça changed his vote in this action and, with that, the majority that had formed hours before to prohibit strip searches in prisons was undone. The minister’s office informed the Brazil Agency that there was a material error at the time of computing the vote, which was corrected.

Mendonça now appears as an adherent to the divergence opened by Minister Alexandre de Moraes, who sees the possibility of carrying out intimate searches, provided that under pre-established protocols and specific rules.