The Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Leandro Despouy, ended a two-week visit to Brazil at the end of last month.
The following note from the Special Rapporteur is from a news briefing in Brasília held to provide the local media with an overview of his mission:
The Special Rapporteur thanked the Government, especially the Special Secretary of Human Rights, and all the authorities and sectors that collaborated very openly in the realization of the visit.
He extended his gratitude to the non-governmental organizations (NGOs) and other representatives of civil society for the valuable information provided and the trust given to him.
The Special Rapporteur visited Brasília, São Paulo, Porto Alegre, Recife and Belém.
He also met representatives of organizations and institutions of other states of the country, namely Ceará, Rio Grande do Norte, Paraíba, Maranhão, Roraima and Rondônia.
He had over 60 meetings and interacted with some 500 people: governmental authorities at the federal, state and municipal levels; judges, prosecutors and lawyers, judicial and bar associations; public defenders; and a high number of representatives of civil society.
He also maintained constant contacts with the press throughout the visit.
The Special Rapporteur made a number of preliminary observations:
1. Lack of access to justice. Most people do not have access to justice for being socially or economically excluded. Vulnerable or discriminated against groups are the most affected.
He referred to children, adolescents, women, indigenous people, homosexuals, transsexuals, quilombolas, black people, sick people, and social movements like the workers without land and the environmentalists.
2. The judicial system is extremely slow. The many guarantees foreseen by the system, which provides for several appeals, coupled with the excessive number of cases that get to the Federal Supreme Court, cause significant delays and can turn the judicial system ineffective.
3. The situation is not consistent throughout Brazil. The quantity and lengthy of proceedings is much bigger, for example, in São Paulo, where there are some 13 millions ongoing cases and each judge has a workload of 8,000-10,000 cases.
This problem is less exacerbated in Rio Grande do Sul, where there is an advanced judicial system and a virtual process is being experimented.
In Pernambuco and Amazonas, the impact of violence on the justice system is tangible.
Judges, lawyers, prosecutors and defenders are exposed to high risks of violence and threats, especially those involved in the rural and environmental questions or in the fight against organized crime.
In many cities, the links between judges and the political and economic elites affect the independence of the judiciary and explains the high levels of impunity registered in these cities.
4. A major concern is the situation of children and adolescents. In the North and North-East, most sexual crimes against children and adolescents are not investigated and in some cases representatives of the judiciary are involved in those crimes.
The Special Rapporteur expressed a few preliminary considerations on some elements of the ongoing judicial reform, such as the binding opinion (súmula vinculante) and the opinion restricting the appeal (súmula impeditiva de recurso); the federalization of the most serious human rights violations; the establishment of the National Council of the Judiciary and the National Council of the Public Prosecutor’s Office; the creation of specialized tribunals for the rural question; the financial and functional autonomy of public defenders; and the investigative powers of prosecutors.
He also mentioned some positive experiences he identified along the visit, such as the Integrated Centres of Citizenship in São Paulo; the public audits of the judiciary in Porto Alegre; and the Rights’ Desk in Belém.
The Special Rapporteur ended the press briefing by indicating some preliminary recommendations:
A. The approval of the law establishing the financial and functional autonomy of public defenders should be a priority. States that do not have public defenders (São Paulo, Goiás and Santa Catarina) should proceed to set up their system of public defenders.
B. The judicial proceedings should be reformed with a view to simplify the system while preserving all guarantees.
C. International human rights law should be applied by judges, lawyers, defenders and prosecutors in the judicial proceedings.
D. More specialised tribunals should be created in at least two areas: crimes against children and adolescents; the rural question.
E. International cooperation among the different actors of the judiciary, especially in the border areas, is essential to fight a trans-frontier phenomenon like organized crime.
F. Positive experiences at the federal and state levels should be collected and evaluated to study their feasibility in other areas of the country. A national meeting could be called upon to this end.
The Special Rapporteur will present his findings, conclusions and recommendations in a report to the sixty-first session of the Commission on Human Rights in April 2005.
UN Press Release