Inter-American Court of Human Rights Critiques “Over-Incarceration” and Prison Building in Brazil

Landmark Aníbal Bruno (Curado) Prison Complex Rulings Also Innovate on Rights of LGBT Prisoners; Prisoners with Disabilities; and Anti-Corruption Measures

Sounding the alarm on mass incarceration, the Inter-American Court of Human Rights recently ordered officials in Brazil to adopt an emergency plan to reduce overcrowding at the abusive Aníbal Bruno (Curado) Prison Complex in Recife, Pernambuco. Noting that it “shared the concern expressed by several Brazilian authorities…with respect to the tendency toward ‘over-incarceration’ [‘super encarceramento’] witnessed over the past decade throughout the country, and with particular intensity in Pernambuco,” the Court also demanded other measures that can promote decarceration. These include the hiring of public defenders and the listing of the legal grounds for the detention of each prisoner at the Complex.

Currently, the Complex holds some 7,000 men in space designated for less than 2,000. The Court gave the state 90 days to comply, with Brazil’s federal prosecutor’s office (Ministério Público Federal – MPF) tapped to monitor implementation.

The ruling marks a major advance for the civil society petitioning coalition comprised of the Serviço Ecumênico de Militância nas Prisões – SEMPRI, Pastoral Carcerária, Justiça Global, and the International Human Rights Clinic. For years, the coalition has urged authorities to redress overcrowding through decarceration measures. Brazil today has the world’s fourth largest prison population, with over 600,000 detained. In its resolution, the Court warned that “until the tendency [toward over-incarceration] is reversed,” state policies promoting prison construction “will not be sufficient” to deal with the problem.

There is growing recognition in Brazil that its turn toward mass incarceration is unwise and unsustainable. Earlier this year the head of Brazil’s federal penitentiary department (Departamento Penitenciário Federal – DEPEN) declared, “incarceration does not reduce criminality.” Over the past 25 years, the country has seen a 575 percent increase in the prison population.

The Court’s decision also innovated on other legal issues. Pointing to a wave of sexual violence and other abuses against LGBT persons at the prison Complex, the Court ordered the state to “adopt specific measures to protect the personal integrity and life of groups in situations of vulnerability.” Other novel points of the decision include measures protecting the rights of prisoners with disabilities and a demand for evidence demonstrating the existence of judicial oversight of the prison.

The resolution comes at the end of a year in which the Court sent a delegation to inspect the infamous Aníbal Bruno (Curado) detention center for itself in June in what was the tribunal’s first-ever site visit to a prison. The trip made an impression. Among the Court’s findings, it observed conditions were “extremely overcrowded, infrastructure deteriorated, with irregularities built by the prisoners themselves.”

At an especially inhumane cell block known as Warehouse (Galpão), the Court noted, “prisoners live and sleep all together on the floor. Some prisoners have individual cells they built themselves, with holes in the walls of this warehouse.” The Court announced it will consider a second visit to the facility in the near future.

The November 2016 resolution is not the first time the Court has broken legal ground in the Aníbal Bruno (Curado) case. Following a 2015 hearing, the Court issued a wide-ranging resolution in October of that year; that decision included an order that the state “diligently investigate the complaints of corruption and arms trafficking on the part of staff and prisoners and that it inform the Court with respect to this.” The decision marked a watershed moment in international jurisprudence linking human rights and anti-corruption efforts.

Since that time, indications of investigations into corruption at the facility have emerged. This past November, journalists reported authorities arrested one prison officer allegedly attempting to enter the facility with a concealed pistol, ammunition, and cell phone chargers. The month prior, news broke of a May 2016 complaint concerning a military police officer accused of attempting to bring drugs into the prison; according to the report, the drugs were to be left hidden near trash in the interior of the detention center. The case followed another involving a military police officer, who was reportedly arrested in March for allegedly stealing a portion of drugs that had been apprehended by authorities.

The civil society coalition will now focus on implementation of the Court’s rulings, an area in which much remains to be done despite some progress. With this in mind, the coalition has urged federal officials to take greater responsibility for what is too often painted as a state-level problem. Last year, the Inter-American Court echoed those calls, stating the state cannot invoke a “lack of coordination between federal and state authorities” for its failure to ensure that “not a single further death occurs” at the notoriously violent Complex.

Following the Court’s express reference to federal responsibility, the office of Brazil’s attorney general (Procurador-Geral da República – PGR) subsequently opened an inquiry aimed at the potential federal takeover (Incidente de Deslocamento de Competência – IDC) of the investigation and prosecution of grave human rights crimes at the prison. As of this writing, that inquiry remains pending.