1 Conselho Nacional do Ministerio Público, “Sistema Prisional em Números”, available at: www.cnmp.mp.br/portal/relatoriosbi/sistema-prisional-em-numeros (all internet references were accessed in June 2019 unless otherwise stated).

2 World Prison Brief, “Highest to Lowest – Prison Population Total”, accessed 14 July 2018, available at: www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

3 In order to circumscribe its scope, this study focuses solely on torture and does not include acts or situations that would qualify as cruel, inhuman or degrading treatment or punishment. The study adopts the definition of “torture” provided in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments. According to the Convention, “torture” refers to “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Under the definition, torture constitutes the infliction of severe pain, or suffering, by public agents, for the specific purposes enumerated. However, it is contended that the purposive element of the definition is what distinguishes torture from other cruel, inhuman or degrading treatment or punishment. On that topic, see Nowak, Manfred, “What Practices Constitute Torture? US and UN Standards”, Human Rights Quarterly, Vol. 28, No. 4, 2006, p. 839CrossRefGoogle Scholar; Evans, Malcolm D., “Getting to Grips with Torture”, International and Comparative Law Quarterly, Vol. 51, No. 2, 2008, pp. 381–383Google Scholar.

4 Juan Mendez, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on His Mission to Brazil, UN Doc. A/HRC/31/57/Add.4, 29 January 2016, para. 50.

5 Ibid., para. 58.

6 Interview with Amerigo Incalcaterra, Regional Representative for South America of the Office of the UN High Commissioner for Human Rights, 24 January 2017, available at: https://nacoesunidas.org/onu-impunidade-por-tortura-nas-prisoes-e-regra-no-brasil/.

7 Supremo Tribunal Federal, Medida cautelar na argüição de descumprimento de preceito fundamental 347, 9 September 2015, available at: http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=10300665.

8 Human Rights Watch, “Brasil: Eventos de 2017”, available at: www.hrw.org/pt/world-report/2018/country-chapters/313303.

9 Departamento Penitenciário Nacional, Levantamento Nacional de Informações Penitenciárias: Atualização – Junho de 2016, Brasilia, June 2016, p. 10 (InfoPen 2016), available at : http://depen.gov.br/DEPEN/depen/sisdepen/infopen/relatorios-sinteticos/relatorio_2016_2211.pdf.

10 Carver, Richard and Handley, Lisa, Does Torture Prevention Work?, Liverpool University Press, Liverpool, 2016, p. 83CrossRefGoogle Scholar.

11 See, e.g., Mecanismo Nacional de Prevenção e Combate à Tortura, Relatório Anual: 2016–2017, 2017, pp. 18, 21, 22, 25; Mecanismo Nacional de Prevenção e Combate à Tortura, Relatório Anual: 2015–2016, 2016, para. 56; Pastoral Carcerária, Tortura em tempos de encarceramento em massa, 2016, p. 56, available at: http://carceraria.org.br/wp-content/uploads/2016/10/Relat%C3%B3rio_Tortura_em_Tempos_de_Encarceramento_em_Massa-1.pdf.

12 Supremo Tribunal Federal, above note 7.

13 J. Mendez, above note 4, para. 50; SPT, Visit to Brazil Undertaken from 19 to 30 October 2015: Observations and Recommendations Addressed to the State Party, UN Doc. CAT/OP/BRA/3, 16 February 2017, paras 16–17, 33–36.

14 Brazil, National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21, UN Doc. A/HRC/WG.6/27/BRA/1, 27 February 2017, para. 102.

15 Brazil, Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, UN Doc. A/HRC/36/11/Add.1, 6 September 2017, para. 136.75 (a).

16 InfoPen 2016, above note 9, p. 8. On average, detainees are young (74% of the prison population is between 18 and 34 years old: InfoPen 2016, above note 9, p. 30), Afro-Brazilian (64% of the prison population: InfoPen 2016, above note 9, p. 32), male (Departamento Penitenciário Nacional, Levantamento Nacional de Informações Penitenciárias Infopen Mulheres: 2ª edição, Brasilia, March 2018, p. 11, available at: http://depen.gov.br/DEPEN/depen/sisdepen/infopen-mulheres/infopenmulheres_arte_07-03-18.pdf), and with little formal education (75% did not pursue education further than primary school: InfoPen 2016, above note 9, p. 33). 28% of the prison population is detained for drug trafficking offences (InfoPen 2016, above note 9, p. 43).

17 InfoPen 2016, above note 9, p. 8.

18 Ibid., p. 9

19 Ibid., p. 52. Out of 10,000 detainees, 7.7 deaths were classified as “natural”, three as “criminal”, 0.8 as suicide, 0.4 as “accidental” and 1.6 as death with “unknown cause”.

20 Ibid., p. 10.

21 Departamento Penitenciário Nacional, Sistema Integrado de Informações Penitenciárias – InfoPen: Quadro Geral, Brasilia, December 2010, available at: http://depen.gov.br/DEPEN/depen/sisdepen/infopen/relatorios-sinteticos/populacaocarcerariasintetico2010.pdf.

22 InfoPen 2016, above note 9, p. 10.

23 Ibid., p. 8.

24 Data collected by the PDORJ for the purpose of a class action brought against the State of Rio de Janeiro, on file with author.

25 The International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments, the American Convention on Human Rights, and the American Convention to Prevent and Punish Torture.

26 In particular, Articles 129 (bodily harm), 132 (“to expose the life or health of others to direct and imminent danger”), 135 (the omission to assist a person in danger) and 136 (ill-treatment). Torture is also considered to be an aggravating factor under the Penal Code: Código Penal, Decreto-Lei No. 2.848, 7 December 1940, Art. 61(II)(d).

27 Lei No. 9807, 1999, Art. 2(2). The law does not preclude public agencies from adopting protection measure for persons deprived of liberty on an ad hoc basis, but such measures would not be related to the programme. Also, Article 11 of Decreto No 3.518 of June 2000 provides that persons excluded from the federal protection programme can still count on the subsidiary protection of the Protection Service for Special Witnesses (Serviço de Proteção ao Depoente Especial). However, the admission to the programme was described as “very restrictive”: Lívia Tinôco, “O serviço de proteção ao depoente especial do department de polícia federal”, in Cartilha sobre programas de proteção a vítimas e testemunhas ameaçadas, 2013, p. 56, available at: http://pfdc.pgr.mpf.mp.br/atuacao-e-conteudos-de-apoio/publicacoes/protecao-a-testemunha/cartilha_protecao_vitimas_testemunhas_pfdc_2013.

28 Lei No. 12.847, 2013, Arts 8–11.

29 The National System for the Prevention and Combating of Torture seeks to strengthen the prevention and combating of torture through the coordination of its members (the MNCPT, the National Committee for the Prevention and Combating of Torture, the National Council for Criminal and Penitentiary Policies and the National Penitentiary Department). Ibid., Arts 1–5.

30 The National Committee for the Prevention and Combat to Torture is tasked, among other things, with monitoring and presenting initiatives and processes (judicial, administrative or legislative) related to the prevention and combating of torture. Ibid., Arts 6–7.

31 Lei de Execução Penal, Lei No. 7210, 11 July 1984, Art. 72(I).

32 Ibid., Art. 64(I).

33 Ibid., Arts 64(VIII), 72(II).

34 State Law No. 5778, 30 June 2010, Art. 1.

35 In 2016, the State Mechanism conducted fifty visits. Mecanismo Estadual de Prevenção e Combate à Tortura, Relatório Anual do Mecanismo Estadual de Prevenção e Combate à Tortura do Rio de Janeiro, 2017, p. 8.

36 State Law No. 5778, Art. 4.

37 Lei de Execução Penal, Art. 66(VII).

38 Lei de Execução Penal, Art. 68, para. 1.

39 The Penitentiary Council is an institution made up of professors, legal professionals and members of the community tasked, among other things, with monitoring the way in which detainees are serving their sentences. See Ibid., Arts 69, 70(II).

40 The Community Council is an institution present in all judicial districts that is composed of one representative of a commercial or industrial association, one lawyer appointed by the bar association, one public defender and one social worker. It is tasked, among other things, with submitting reports to the Penitentiary Council and with providing support to persons deprived of liberty. See Ibid., Arts 80, 81(I).

41 Ibid., Art. 81-B(V).

42 Brazil, Replies of Brazil to the Recommendations and Request for Information made by the Subcommittee, UN Doc. CAT/OP/BRA/1/Add.1, 18 February 2013, para. 194.

43 Constitution of the Federative Republic of Brazil, 1988, Art. 5(LXXIV) (author's translation).

44 Ibid., Art. 134 (author's translation). The autonomy of the institution was later guaranteed in 2004 through Constitutional Amendment No. 45, Art. 1.

45 Lei Complementar No. 80, 12 January 1994, Arts 1, 4.

46 Lei Complementar No. 132, 7 October 2009.

47 Lei Complementar No. 80, Art. 3 (modified by Lei Complementar No. 132) (author's translation).

48 Ibid., Art. 4(XVIII) (modified by Lei Complementar No. 132).

49 Ibid., Art. 4(III).

50 Ibid., Art. 4(IV).

51 Ibid., Art. 4(X), 4(VI).

52 Ibid., Art. 4(VII –VIII).

53 Ibid., Art. 4(XVII).

54 For the objectives of the amendment, see Câmara dos Deputados, Proposta de emenda à Consstituição, March 2013, p. 4, available at: www.camara.gov.br/proposicoesWeb/prop_mostrarintegra?codteor=1064561&filename=Tramitacao-PEC+247/2013. Before the adoption of the amendment, there were several public defenders’ offices throughout the country. However, the amendment made clear that the services of the public defenders must be available in all judicial districts within eight years.

55 Constitution of the Federative Republic of Brazil, Art. 134, as modified by Constitutional Amendment No. 80, 4 June 2014, Art. 1.

56 It is important to note that at the state level, in Rio de Janeiro, Lei Complementar No. 6 on the PDO already granted the task of providing legal aid in detention centres to the public defenders (Lei Complementar No. 6, 1977, Art. 22, para 4). While it does not task the PDO with conducting inspections, this law provides that under no circumstance may the penitentiary administration impede the PDO from interviewing a detainee. Despite the normative framework in place, however, the PDO only started to provide legal aid to detainees permanently in 1999.

57 Lei de Execução Penal, Arts 10, 11, 15.

58 “The Federative Units must provide a service of legal assistance in penal establishments.” Ibid., art. 16. This disposition allowed, as in the case of Rio de Janeiro up to 1999, that prison staff were in charge of providing legal aid and representation to detainees.

59 Lei Complementar No. 80, 12 January 1994, Art. 4(VIII).

60 Ibid., Art. 128(VI).

61 Ibid., Art. 108(IV), as modified by Lei Complementar No. 132, 2009.

62 Ibid., Art. 108(IV), as modified by Lei Complementar No. 132 (author's translation).

63 Lei de Execução Penal, Art. 16, as modified by Lei No. 12.313, 2010.

64 Ibid., Arts 16, 83(5), as modified by Lei No. 12.313.

65 Câmara dos Deputados, Avulso: Projeto de Lei No 1.090-B de 2007, 2008, para. 16, pp. 8–9 (author's translation), available at: https://tinyurl.com/yxqlumca.

66 Lei de Execução Penal, Art. 61(VIII), as modified by Lei No. 12.313.

67 Ibid., Art. 81-A, 185, 186(IV), as modified by Lei No. 12.313.

68 Ibid., Art. 81-B(I).

69 Ibid., Art. 81-B(III).

70 Ibid., Art. 81-B(IV).

71 Ibid., Art. 81-B(V).

72 Ibid., Art. 81-B(VI).

73 Renata Tavares da Costa, “A atuação da Defensoria Pública no Sistema Penitenciário”, in PDORJ, Ideias para uma a construção de uma Execução Penal democrática, Rio de Janeiro, 2010, p. 23.

74 Marcelo de Menezes Bustamante, “Histórico”, in PDORJ, above note 73, p. 11.

75 R. Tavares da Costa, above note 73, p. 23.

76 Interview with Americo Grilo, former Coordinator of NUSPEN, Rio de Janeiro, 14 July 2016.

77 According to the coordinator of NUSPEN, the process only concluded in 2012.

78 Decreto No. 25.685, 8 November 1999, Preamble, para. 2; interview with Americo Grilo, above note 76.

79 Decreto No. 25.685, Art. 1.

80 Interview with Americo Grilo, above note 76.

81 PDORJ, Resolução 260, 11 February 2004, Art. 2a.

82 PDORJ, Deliberação CS/DPGE 82, 14 December 2011.

83 Interview with Marlon Barcellos, Coordinator of NUSPEN, Rio de Janeiro, 29 August 2016.

84 PDORJ, Convênio garante ao Verde a disponibilização de dados da Seap, 25 May 2018, available at: www.defensoria.rj.def.br/noticia/detalhes/5943-Sistema-Verde-sera-implementado-no-Nuspen.

85 R. Carver and L. Handley, above note 10, p. 83.

86 Of the thirty-six public defenders working at NUSPEN, four temporarily tasked with administrative functions were not considered for data collection as they were not conducting interviews at the time of the study.

87 The public defender in charge of prison visits within NUDEDH, the coordinators of NUSPEN and of the criminal defence section of the PDORJ, and the deputy head of the PDORJ consented not to have their identity kept confidential.

88 The list of functions of the public defenders of the State of Rio de Janeiro is established by Deliberação CS/DPGE No. 80, 11 November 2011, Art. 7.

89 The PDORJ also meets with remand prisoners. The public defenders meeting with remand prisoners dealt with more than the double the number of detainees than those working with sentenced detainees, as they were each responsible for approximately 2,400 people. The interviews conducted by those public defenders are slightly different from those of the public defenders working with sentenced detainees. The interviews with remand prisoners seek to inform them of scheduled court hearings and to inform them that there is a public defender responsible for their case and that any question relating to the case should be addressed to him or her. The discussion is considerably shorter than those with detainees already sentenced. Indeed, while public defenders representing sentenced detainees met with an average of sixty detainees per day, public defenders working with remand prisoners met anywhere between 150 and 270 detainees per day.

90 At the time the interviews were conducted, the interviewed public defenders had been practicing law, on average, for the past 14.8 years. On average, they had been working with people deprived of liberty for 9.5 years. Nineteen public defenders interviewed were female, while nine were male.

91 Out of the twenty-five public defenders interviewed who work with convicted detainees, only four reported being able to visit each detainee at least every three months. Twelve public defenders stated that it takes at least five months to see someone again. According to internal regulations, each detainee should be visited at least every three months.

92 The public defender responsible for the monitoring visits was excluded from this section. Also, one public defender did not share information about the privacy of the interview.

93 Interview with Public Defender 6, Rio de Janeiro, 22 June 2016.

94 Interview with Public Defender 10, Rio de Janeiro, 6 April 2016.

95 Interview with Public Defender 15, Rio de Janeiro, 16 June 2016.

96 At the time the study was conducted, no protocol was in place to specify the steps that public defenders should take when they collect allegations of torture. However, in June 2018, the PDORJ adopted Resolução 932, which establishes a protocol detailing how public defenders should respond when they receive accounts of torture and other cruel, inhuman or degrading treatment or punishment. It establishes that NUDEDH is responsible for handling such cases.

97 Interview with Marlon Barcellos, above note 83.

98 Ibid.

99 At the time of data collection, only NUDEDH was conducting inspections. NUSPEN started to conduct monitoring visits in December 2016 and conducted six visits up until July 2018.

100 PDORJ, above note 82, Art. 12(2).

101 Interview with Marlon Barcellos, above note 83.

102 Interview with Robert Fraenkel, NUDEDH Public Defender, Rio de Janeiro, 11 August 2017.

103 R. Carver and L. Handley above note 10, p. 83.

104 The prosecutor in charge of collective rights in the penitentiary system of the Public Ministry of the State of Rio de Janeiro, Tiago Joffily, also considered that the cases of torture officially denounced represent a “tiny fraction” of all instances of torture in the penitentiary system of the State of Rio de Janeiro. Interview with Tiago Joffily, Prosecutor of the Public Ministry of the State of Rio de Janeiro, Rio de Janeiro, 27 June 2016.

105 The lack of a protective mechanism for detainees denouncing torture was also identified as a reason for underreporting of torture by Tiago Joffily, above note 104, and the Ombudsman of the National Penitentiary Department, Maria Gabriela Peixoto. Interview with Maria Gabriela Peixoto, Ombudsman of the National Penitentiary Department, Brasilia, 26 July 2016.

106 Brazil, above note 42, para. 194.

107 The United Nations Subcommittee on the Prevention of Torture and the International Committee of the Red Cross use a similar mode of action.