By Prof Dr Clara Burbano Herrera and Prof Kristal Moreira Gouveia
Prof Dr Clara Burbano Herrera (left)
Clara Burbano Herrera is a Professor of International Human Rights Law and Director of the Programme for Studies on Human Rights in Context (Ghent University, Belgium). Prof Burbano Herrera is also the principal investigator of the ERC Project IMPACTUM, which aims to assess the Impact of Urgent Measures in Protecting at-risk detainees in six Latin-American countries.
Prof Kristal Moreira Gouveia (right)
Kristal is a Professor of Legal History, Legal Hermeneutics, and Legal Philosophy at Centro Universitário Paraíso (Brazil). Prof Moreira is also a visiting professor at the Programme for Studies on Human Rights in Context (Ghent University, Belgium). Her current research is funded by the Global Minds scholarship.
Introduction
Respect for human dignity is the guiding principle in the context of persons deprived of their liberty. The American Convention on Human Rights (ACHR), in its Article 5(2), provides: “No one shall be subjected to torture or cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.” Indeed, everyone deprived of their liberty must be treated with respect and dignity. They must not be tortured or treated cruelly, inhumanely, or in a degrading way.
Article 5(2) ACHR cannot be suspended, even in times of war, public danger, or other threats to the independence or security of the State Parties (Article 27(2) ACHR). Failure to respect the dignity of persons deprived of their liberty violates a fundamental principle of democratic societies. The Inter-American Court of Human Rights (IACtHR) has held that the direct impairment of the right to liberty and the indirect impairment of other rights by incarceration must be strictly minimised. To that effect, the Inter-American Court has stated:
[T]he State must ensure that the manner and method of any deprivation of liberty do not exceed the unavoidable level of suffering inherent in detention and that the detainee is not subjected to sufferings or hardships exceeding the unavoidable suffering inherent in detention, and that, given the practical requirements of incarceration, the detainee’s health and welfare are adequately warranted. (Montero Aranguren et. al v. Venezuela, IACtHR, para. 86)
Simultaneously, the IACtHR has asserted that the dispossession of certain rights must not accompany the deprivation of liberty. The rights of detainees to life, personal integrity, and a fair trial, for example, must be effectively respected and guaranteed, just as they must be ensured to individuals who have not been deprived of liberty (Juvenile Reeducation Institute v. Paraguay, IACtHR, para. 155).
In light of the above context, this opinion aims to provide an overview of the current situation of persons deprived of their liberty in Brazil and to analyse to what extent it aligns with international human rights standards. It is argued that the situation of individuals deprived of their liberty in Brazilian prisons and jails reflects multiple state failures, ranging from negligence in enforcing criminal procedural legislation to criminal policy choices rooted in social marginalisation. These practices align with Achille Mbembe’s concept of necropolitics, which spotlights the State’s power to deem certain bodies expendable, often under institutional cover. This deliberate act of segregating and killing targets specific racial profiles, woven into everyday governance. In racially stratified societies, prisons and similar State-controlled spaces become arenas where vulnerability is heightened, reflecting the State’s ultimate control over who lives and who dies.
The promulgation of the Federal Constitution of 1988, a result of Brazil’s re-democratization process, incorporated several provisions guaranteeing fundamental rights. Art. 4 (II) enshrines human rights as a principle of the Republic. Because its Articles 5 to 11 set out an extensive range of individual and collective rights and guarantees, the Constitution became known as the ‘Citizen’s Constitution’, internationally recognised as progressive and aligned with human rights. Despite constitutional norms reflecting Brazil’s international commitments and guaranteeing dignity in criminal cases, there has historically been a chasm between the norm and its implementation in Brazil, marked by illegality and disrespect for human rights. Norms and reality remain far apart, particularly in the prison system, where abuses and violations persist.
The Brazilian Prison Context: An unconstitutional state of affairs
The Brazilian prison situation has become so critical that in 2023, the Brazilian Supreme Court (the Court) deemed it to be an "unconstitutional state of affairs" when adjudicating the Action for Non-Compliance with Fundamental Precept No. 347 MC/DF. The Court considered that the complex of irregularities in the situation of people deprived of liberty reflects a multiplicity of violations of their fundamental rights and a failure of all institutions, generating obligations for the three branches of government to plan and execute coordinated actions to repair and recover the scenario of violations. According to the Court, the situation of people deprived of liberty, marked by the violation of their rights, is an affront to the constitutional order, and "its modification depends on comprehensive measures of a normative, administrative and budgetary nature" (ADPF No. 347 MC/DF).
Illegality in police approaches: racial selectivity, torture and police lethality
On many occasions, the prison system in Brazil is marked by illegality at all stages of the procedure, from the arrests to the legal and factual conditions for serving sentences. Illegal police approaches, focusing on socially and economically vulnerable groups and racial minorities, with the systemic use of violence and the lack of accountability of public agents, are characteristic of the moments of apprehension of suspects and criminal investigations.
Data from the Brazilian Public Security Report indicate that, in 2023, 69.1% of people incarcerated in Brazil were black. According to the survey, At no point in the historical series, which covers the period between 2005 and 2023, was racial representation different. We are, therefore, dealing with a criminal process that has color. From this, it is reasonable to assume that the decision of who will be stopped, searched, detained and convicted is guided by race.
In many contexts, approaches are guided by torture and lead to death, mainly when they occur in the context of favelas and economically vulnerable areas. In April 2023, The UN Committee against Torture (CAT) released its conclusions on the review of Brazil and the measures that should be taken to combat torture in the country. As suggestions for tackling the problem recognised as endemic, the Committee condensed the recommendations into 4 points: 1) the need to take urgent measures to end the use of excessive force, especially lethal force by law enforcement and military officials, 2) pursuing efforts to eliminate overcrowding in all detention centres, 3) bring the juvenile justice system fully in line with international standards and promote alternatives to detention, ensuring that detention is used as a last resort and, for lastly, 4) establish a network of preventive mechanisms against torture in all states and ensure that these bodies have the necessary resources and independence.
Brazil has been a signatory to the United Nations Convention Against Torture since 1989; however its last report to the Committee Against Torture was submitted in 2017. The lack of provision of information has been the target of criticism in the international context, being an element indicated by the UN Committee Against Torture.
Penal populism and punitivism as cultural marks: human rights exist only to benefit “criminals”
A structurally violent, highly militarised police force that is culturally inclined to allow its officers to be impunity reinforces this system, which is socially supported by the population due to a strong sense of penal populism (Instituto Humanitas, 2024), fueled by widespread outrage over the lack of public safety. The media and a growing political force aligned with the extreme right, strengthened by conservative groups and an evangelical parliamentary base, reinforce this punitive discourse (Instituto Humanitas, 2024). This discourse has gradually gained widespread support in Brazil, fueled by society's aversion to recognising the human rights of people deprived of their liberty and the widespread distortion of the meaning of "human rights," often wrongly associated with impunity.
This is what is evident in the popular saying “Human rights for righteous humans (Direitos humanos para humanos direitos)”, popularised socially and representing a collective opinion averse to guaranteeing human rights to people deprived of liberty, resulting in criticism of humanised actions by the Public Authorities, generally carried out by governments aligned with the left-wing political spectrum. A distortion of the concept of human rights in the education of the Brazilian people in general is responsible for this perception, as can be seen in the 2018 survey by the Ipsos Institute. According to the data collected, one in three Brazilians believes that human rights exist only to benefit “criminals” and do not protect victims. All of these factors create a chaotic scenario characterized by the cult of institutionalised violence and a culture of penal punitivism.
Illegality of arrests and high levels of pre-trial detention
The illegalities of this situation go beyond the moment of suspects' arrest and are perpetuated, especially during their incarceration, both in “preventive detention,” a legal provision intended for suspects awaiting trial who present dangerousness and risk of fleeing, and during imprisonment as a sentence after trial and final conviction (Code of Criminal Procedure, articles 312 to 316).
Within this context, one factor that is part of the institutional illegality of the Brazilian prison system is the arrests carried out outside of legal guidelines due to “excessive time limits” and the lack of adequate legal representation. The preventive detention procedure must be reviewed within 90 (ninety) days (Art. 316, Code of Criminal Procedure), and, if necessary, it may be re-ordered as long as it is through a well-founded decision. Failure to review the detention makes it illegal, effectively turning what should be a temporary measure into a de facto sentence, imposed even before the conclusion of the criminal proceedings. Also, this procedure should occur only in specific cases provided for in criminal law at a time before imprisonment. What is known to happen recurrently is that its term is repeatedly exceeded due to failure to execute the sentence, resulting in illegal arrests of inmates awaiting trial, stalled proceedings, lack of expression by the Public Defender's Office and inaction by the responsible judicial body. According to the Penal Information Report ( Relipen ), for the first half of 2023, on June 30, there were 180,205 people provisionally detained in physical cells in Brazil, corresponding to approximately 28% of the prison population. These figures demonstrate the high rate of pre-trial detention, which contributes to prison overcrowding and forces people to serve their sentences without being convicted.
In 2023, the National Council of Justice conducted a survey in which it identified 21,000 people who were wrongfully detained in prisons. This means they were being held under the condition of "preventive detention", but the situation did not actually fit into the hypotheses legally provided for this type of detention. Or even that the procedure for reviewing the situation was not carried out within the time period provided for in art. 316 of the Code of Criminal Procedure. Thus, a detention condition that should be "provisional" and linked to specific cases ends up going beyond the time and applicable situations and becomes, in practice, a sentence executed without due legal process and, therefore, violates the human rights of these people. At the time, the report identified repeated resistance by the judiciary to apply theses from the Supreme Federal Court, which would lead to the revocation or relaxation of illegal detentions. In addition to illegal detentions, the CNJ's action in 2023 identified that in 70,452 cases, there was a need for procedural review and that 27,010 people deprived of liberty had their imprisonment situation changed.
Lack of adequate legal representation
Another critical point is the lack of updates on the procedural status of criminal proceedings, which makes many cases outdated concerning the situation of imprisonment. This means that, for example, processes in which the deadline for changing to a less onerous regime has already passed, due to the lack of updating of this data (due to failure in legal representation), remain out of date and, therefore, restrict people deprived of liberty from the right to progress to a more beneficial regime. Without due legal representation, requests for remission or modification of the sentence serving regime to a less severe one are not made, even when the requirements (as the passage of predicted time) are already implemented. In 2023, the CNJ action identified 22,276 cases of inmates serving sentences in the "closed regime" modality. However, their condition could already be changed to "open" or "semi-open" due to the implementation of the requirements, which demonstrates the recurrence of this type of event.
The collective review action is called "Mutirão carcerário" (Prison Task Force) and was practised annually from 2008 to 2014 to address the endemic problem of prison overcrowding and the recurrence of illegal imprisonments due to stalled cases and negligence in legal representation. The project had been on hold since 2015 and was resumed in 2023, with the implementation of the aforementioned action, based on the recognition in 2015 of the unconstitutional state of affairs that characterises the Brazilian prison system.
The data reflect a failure to represent people adequately in court and a slow performance by the Public Defender's Office, which leads to violations of the human rights of defence and adversarial proceedings due to state negligence. Excessive time in pretrial detention leads to the recurring situation of people in prison serving sentences without conviction, awaiting trial for up to a year, to such an extent that, according to the Violence Monitor, pretrial detainees account for more than 30% of the prison population, which represents the illegality of the arrests and the lack of adequate legal representation, symptoms of state negligence and institutional abandonment. It must be noted that according to the IACtHR, preventive detention must meet the essential requirements in a democratic society; that is, it must be exceptional and limited by the principles of legality, presumption of innocence, necessity, and proportionality (García Asto and Ramírez Rojas v. Peru [2005] IACtHR, para. 106.) The lack of access to information, compounded by conditions of economic vulnerability, makes this group of people subject to procedures that are processed outside of legal guidelines, characterising the thousands of cases with recognised excessive time and lack of regime progression, consequently making these arrests illegal.
Despite recent actions to improve the situation, such as the “Mutirão Carcerário”, the number of cases analysed is still limited concerning the total number of criminal proceedings in Brazil. In 2019, Brazil's prison population consisted of 812,564 people deprived of liberty, according to the Prison Monitoring Database of the National Council of Justice (CNJ). Of this number, 41.5% were people awaiting trial. In addition, there were 366,600 pending arrest warrants at the time. These figures place Brazil as the third largest prison population in the world, behind only the United States and China. From 2020 to 2022, this data was not updated, and in June 2023, this population was over 649,000 people, which, although a reduction compared to previous years, still exceeds the number of places in prisons by 34%.
Terrible prison conditions
Prison exacerbation, unsanitary conditions of hygiene and food, and lack of health care are factors that lead to death and illness. The lack of assistance for people with disabilities, pregnant women or the elderly aggravates health problems and joins police violence as a cause of lethality in prison. The relationship between illness and prison lethality is demonstrated by the survey commissioned by the National Council of Justice (CNJ), “Prison lethality: a matter of justice and public health” (CNJ, 2023). The study, coordinated by Maíra Rocha Machado (Fundação Getúlio Vargas) and Natália Pires de Vasconcelos (Insper), analysed 112,000 cases in which the sentence was extinguished due to the death of the convicted person between 2017 and 2021 and found that 62% of deaths in prisons in Brazil occur due to illness. According to the study, the risk of death from cachexia (extreme weakness) is 1,350% higher for people deprived of liberty than for the general population. The occurrence of tuberculosis is 30 times higher among people deprived of liberty in Brazil than in the general population. These are some of the numbers presented in the report that demonstrate the appalling and unhealthy conditions to which the Brazilian population is subjected.
Also, according to the report "Prison lethality: a matter of justice and public health" (CNJ, 2023), evidence leads to the conclusion that official data presents underreporting. As a consequence, the close relationship between illness due to state negligence and prison lethality is often hidden in official statistics due to the practice of underreporting, which limits access to information about prisoners by their families.
In addition to this context, a parallel power is forming in prisons, reinforced by corruption, the formation of militias and the illegal exchange of favours between inmates and, often, institutional actors. These movements occur outside the law and judicial control, whose effectiveness is limited in relation to the reality of prisons. The outbreak of prison riots is an expected result of this chaotic situation. Recently, violence has exploded, with a war between factions that left 133 inmates dead. In 2019, 56 inmates were killed in the city of Manaus alone (Brazilian Institute of Criminal Sciences, 2019).
Brazilian Prisons and the Inter-American Court of Human Rights
Many prisons in Brazil have structural problems that affect their entire population, leading persons deprived of their liberty to request provisional measures from the IACtHR (Burbano Herrera, 2010). In these situations, the petitioners have alleged deplorable prison conditions related to violence and overcrowding. For example, in the case of the Penitentiary Complex of Curado (Brazil), the IACtHR found that the prison was overcrowded, with a density of more than 200 per cent. (Penitentiary Complex of Curado v. Brazil, IACtHR, paras. 80– 81)
Children deprived of liberty have also faced situations of extreme danger in Brazilian prisons. As a result, the IACtHR granted provisional measures to protect all the children imprisoned in the case Unidade de Internação Socioeducativa (la Unidad o la UNIS) v Brazil, IACtHR. (See also President of the IACtHR, 2014, 2015, and 2017) and Children and Adolescents Deprived of Liberty in the “Complexo de Tatuapé” of FEBEM (Brazil).
The issues afflicting Brazil's prison system have persisted for many years. The phenomenon of overcrowding in Brazilian prisons can be traced back to at least the early 19th century. (Burbano Herrera and Haeck, OUP 2024). In that sense, for example, during the Twelfth UN Congress on Crime Prevention and Criminal Justice in 2010, the President of the Supreme Federal Court of Brazil asserted that “Brazil's prison system is on the brink of total collapse.”
Unfortunately, similar problems to those already described in Brazil can be found in other Latin American countries, including Argentina, El Salvador, Colombia, Peru, Ecuador, Honduras, Guatemala, and Venezuela. Several factors contribute to the prison crisis in some Latin American countries, including a tendency to expand the use of criminal law, incarceration, and preventive detention in the face of various societal issues.
Conclusion
An analysis of the situation of persons deprived of their liberty in Brazil reveals that a significant number of people are living in undignified conditions of detention that are incompatible with international human rights standards. The Brazilian prison crisis has resulted in high levels of overcrowding, violence and deaths, as well as a lack of investigation and punishment for those responsible for these human rights violations. In this context, both the Inter-American Court and the UN Committee against Torture have called on Brazil to reconsider its long-standing policies and practices of criminalisation and incarceration.
It is imperative that the international community continues to exert firm pressure to ensure that the Brazilian state complies with its international and domestic obligations. The state must be held accountable for any human rights violations that have already occurred and must end these systematic violations. It is crucial to emphasise that all individuals, including those deprived of their liberty, should be threatened with dignity and respect for their human rights.
“This result is part of a the ERC project IMPACTUM that has received funding from the European Research Council (ERC) under the European Union’s Programme Horizon 2021 research and innovation programme. Grant Agreement 101044852”
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