Lewandowski’s flag, custody hearing released 566 thousand prisoners

Since it was implemented nationwide by Ricardo Lewandowski, future Minister of Justice, 8 years ago, the custody hearing has resulted in the release of 566,576 arrested people. Freedom was granted in 40% of the 1,422,200 custody hearings held from 2015 to date. The procedure, which consists of taking a prisoner in the act to the judge within 24 hours, so that his detention can be evaluated, is considered Lewandowski’s greatest achievement in the Federal Supreme Court (STF), which he presided over between 2014 and 2016.

The numbers were extracted this Wednesday, January 17, from Sistac, a public system of the National Council of Justice (CNJ) updated daily by judges and state and federal courts across the country.

Source: National Council of Justice| Source: National Council of Justice

Lewandowski and defenders of the custody hearing say that it is a humanitarian measure, as it allows for the immediate release of anyone who has been arrested without the requirements required by law and justice, or in an abusive manner, with torture or ill-treatment by police officers. . More than that, they openly state that it is an instrument for “de-incarceration”, a policy that basically advocates the emptying of penitentiaries, in order to leave them, theoretically, only criminals who could represent a real danger to society.

Critics say that, over time, the custody hearing ended up favoring crime and, even worse, demotivating and inhibiting the police officers who make the arrests. For these critics, many prisoners falsely accuse police officers of ill-treatment just to get their release – as a result, when they are subject to internal punishments, police officers become afraid to make arrests, so as not to suffer from unfair processes.

For this reason, Lewandowski’s entry into the Ministry of Justice and Public Security has caused concern among parliamentarians linked to public security, who fear that, in the Executive, he could deepen policies that encourage the release of prisoners, such as custody hearings, and intensify abusive supervision of the police.

“It’s legal crap they invented. Today, the biggest source of demotivation for public security operators is the custody hearing. These days we saw a judge offer coffee and a coat to a criminal arrested at a custody hearing, and the OAB then paid tribute to the judge. We are living in a phase where criminals have more rights than citizens. Lewandowski has these flags, there’s no way it will work”, says federal deputy Alberto Fraga (PL-DF), colonel in the Military Police, one of the oldest parliamentarians on the security bench and a strong name to preside over the area’s thematic commission in the Chamber this year.

For prosecutor Marcelo Rocha Monteiro, from the Public Ministry of Rio de Janeiro, the custody hearing was implemented incorrectly in Brazil because it was explicitly part of the extrication policy on the part of its defenders. For him, there is an “absolutely mistaken premise that Brazil arrests too much”.

“Brazil arrests the criminal in around 10% of homicide cases, less than 5% of robbery cases (and there are around 3 million robberies per year), and so on. Any Brazilian living in Rio de Janeiro, São Paulo, Porto Alegre, Belo Horizonte and other capitals knows that the country’s problem is not the excess of imprisoned criminals, but rather the excess of released criminals”, says the prosecutor.

“What there is is a serious problem with a shortage of places in the prison system, but the construction of new prison units is systematically boycotted by NGOs ‘defending human rights’, left-wing parties and an entire ecosystem that sees the criminal as a ‘ victim of society’ and who claims that ‘arresting doesn’t solve the problem’. For this view, the solution is not to build more vacancies, but to release offenders, under the most diverse pretexts”, he states.

CNJ data show that, in the 1,422,200 custody hearings held since 2015, judges ordered the preventive detention of 851,528 prisoners caught in the act. In other words, in 60% of cases, they remained in prison – this does not mean that they have remained in prison to this day, as there are countless habeas corpus that can be filed so that they can be freed before final sentencing. In 110,903 of the cases of arrest in the act analyzed in custody hearings (7.7%), there was a finding of mistreatment or torture by police officers.

Custody hearing history

The custody hearing is an institution provided for in the American Convention on Human Rights (San José de Costa Rica Pact), approved in 1969 and internalized by Brazil in 1992. “Every person arrested, detained or detained must be taken, without delay, to the presence of a judge or other authority authorized by law to exercise judicial functions”, says the international rule.

In 2015, when he was also presiding over the National Council of Justice (CNJ), Lewandowski launched a project to nationalize the institute, which had already been applied by the São Paulo Courts for some years on a partial basis. The minister began visiting several states to organize the courts to universalize the procedure.

“By developing this project, we will be able to completely change the horrible reality of prisons in Brazil. I appeal to us to take the lead, showing that the Judiciary is capable of doing new things”, said Lewandowski at the time, during a meeting with all the presidents of state courts in the country. At that time, Brazil had 600,000 prisoners, an “unsustainable” situation in the minister’s view. “We need to raise awareness about the importance of the custody hearing, as solving the problem of overcrowding is everyone’s duty and this is not something achieved overnight. It is important that we make this effort so that we become an example for the world”, he said in May 2015.

That same year, the Association of Brazilian Police Delegates (Adepol) challenged the validity of the institute in the STF and lost. They claimed that only a federal law, initiated by the Executive, could implement the measure. The majority of ministers approved the custody hearing and, in September 2015, when judging a PSOL action, the STF ordered all judges to carry it out.

In 2019, the custody hearing was finally regulated by law, within the anti-crime package – the original proposal by the then Minister of Justice, Sergio Moro, did not include the institute, which was incorporated into the bill by left-wing deputies under the influence of lawyers and guarantor judges. The rule not only made it mandatory, but also opened loopholes for freedom to be granted if the hearing did not take place within 24 hours. Those responsible for non-compliance, police officers or judges, are still subject to punishment.

In March 2023, the STF determined that custody hearings be held in all types of prisons, not just those executed in the act. As a result, people detained preventively or temporarily (before conviction, to avoid escape, harm to investigations or the commission of new crimes), to be extradited and to begin serving their sentence, after definitive conviction, also began to be imprisoned. evaluated in 24 hours.

Congress still tries to restrict measure

Since its national implementation, Congress has tried to rebel against the custody hearing. Still in 2016, deputy Eduardo Bolsonaro (PL-RJ) presented a draft legislative decree to suspend the CNJ rule. He pointed out formal unconstitutionality and argued that the custody hearing would promote a “reversal of values ​​and roles”.

“The repeated practice of criminal acts generates a feeling of impunity, which encourages criminals, terrifies citizens and gives police officers a feeling of impotence, given the daily work to which these professionals are subjected. The custody hearings, established by a normative act of the National Council of Justice (CNJ), a body that is part of the Judiciary, worsened this feeling by establishing an inversion of values ​​and roles in which those investigated became, primarily, the police agents responsible for the prisons, and criminals were actually disguised as potential victims, regardless of the nature or severity of the criminal offense committed,” he said in the proposal.

Over time, the project lost strength and remained at a standstill, especially since 2019, when the custody hearing was approved into law, within the anti-crime package.

In recent years, the opposition has started to defend more restrictive rules for its implementation. There is a project in the Chamber, for example, by deputy Kim Kataguiri (União-SP), to prevent the granting of provisional release to recidivist criminals who commit crimes repeatedly. In the Senate, there is a proposal to make the custody hearing mandatory only in cases where the accused is not a repeat offender or has a good record. Presented between 2022 and 2023, the projects are still in their initial phase.