Custody Hearings in Brazil: Rights of the Arrested Person and the Judge’s Role

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

A custody hearing is a procedural tool designed for immediate review of arrests made in the act of a crime (prisão em flagrante). It requires that an arrested person be physically brought before a judge within 24 hours of the arrest, creating an institutional safeguard against unlawful arrests, mistreatment, and unnecessary detention before the detainee’s situation is fully examined.

Legal Basis and Mandatory Nature of the Hearing

The custody hearing is grounded in Article 7, item 5, of the American Convention on Human Rights (the Pact of San José, Costa Rica), which provides that every person arrested has the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power. By ratifying the Pact, Brazil took on this commitment at the international level.

Under Brazilian domestic law, Article 310, caput, of the Code of Criminal Procedure, as amended by Law 13.964/2019, made the hearing mandatory within 24 hours of receipt of the arrest report. Resolution 213/2015 of the National Council of Justice had already regulated the procedure before the legislative change, and it served as the basis for the gradual rollout of the hearing in courts across the country.

Missing the deadline does not necessarily mean the detainee must be released immediately. It can, however, amount to unlawful restraint, which may be challenged through a petition for habeas corpus, and it may expose the State to a finding of responsibility for the undue delay in bringing the person before a judge. The Federal Supreme Court has held that the hearing is a personal right of the detainee and an institutional obligation of the Judiciary, and that it cannot be waived for reasons of administrative convenience.

Rights Guaranteed to the Detainee at the Hearing

During the hearing, the detainee has the right to have an attorney or public defender present, to remain silent about the facts that led to the arrest, and to speak with counsel beforehand without interference from the authorities. The judge must also check for visible signs of physical violence and whether the detainee reports having suffered torture, degrading treatment, or any other form of abuse since the moment of arrest.

Statements the detainee makes at the custody hearing cannot be used as proof that the offense occurred or that the detainee committed it, under the thirteenth paragraph of Article 185 of the Code of Criminal Procedure. This ensures the hearing does not turn into a disguised interrogation. The sole purpose of the hearing is to examine the circumstances of the arrest and to decide whether the person should remain in pretrial custody.

The detainee’s right to notify a family member or trusted person of the arrest is also part of these protections. This duty falls on the police from the moment of arrest and must be confirmed before the judge at the hearing. A failure to give this notice can strengthen a request to release the detainee for unlawful restraint, especially when combined with other formal defects in the arrest report.

The custody hearing does not judge the crime. It examines whether the arrest was carried out lawfully and whether the person’s liberty can be preserved without a concrete risk to public order or to the criminal investigation and trial.

The ban on using the detainee’s statements as evidence does not prevent the judge from considering information obtained at the hearing when deciding on the appropriate precautionary measure. The key is not to confuse an account of the circumstances of the arrest with a confession to the alleged offense. This distinction is central to applying the hearing correctly.

The Judge’s Role and the Possible Decisions

When conducting the custody hearing, the judge hears the prosecutor, the defense, and the detainee, in that order. The judge checks the formal lawfulness of the arrest, the regularity of the report drawn up by the police, and whether there are signs of abuse of power. The judge does not decide the merits of any future criminal case and only examines whether pretrial custody should continue, based on what has been presented.

At the end of the hearing, there are three possible outcomes: the release of the detainee because the arrest was unlawful (relaxamento da prisão ilegal), when the arrest has a formal or substantive defect; the granting of provisional release, with or without bail, and with or without precautionary measures other than detention; or the conversion of the arrest into pretrial detention (prisão preventiva), when the requirements of Article 312 of the Code of Criminal Procedure are met, above all a concrete risk to public order, to the economic order, or to the proper conduct of the criminal investigation and trial, or a danger of flight.

The alternatives to detention set out in Article 319 of the Code of Criminal Procedure include electronic monitoring, a ban on going to certain places, bail, suspension from public office, and nighttime home confinement. The judge must prefer these measures whenever they are enough to neutralize the risk that would justify pretrial detention. Otherwise, the decision violates the principle of proportionality and the rule that pretrial custody is exceptional.

Frequently Asked Questions

What happens if the custody hearing is not held within 24 hours?

Failing to hold the hearing within the legal deadline amounts to unlawful restraint and allows a petition for habeas corpus to be filed with the competent court. The delay alone does not automatically lead to the detainee’s release, but the judge must decide, case by case, whether the irregularity tainted the arrest so much that it can no longer stand. Systematic failure to meet the deadline may also give rise to the State’s civil liability toward a detainee who suffered the effects of the unjustified delay.

Is the detainee required to speak during the custody hearing?

No. The right to remain silent is a constitutional guarantee under Article 5, item LXIII, of the Federal Constitution, and it applies fully to the custody hearing. The detainee may decline to answer any question, and this cannot be treated as a confession or used to worsen the detainee’s legal situation. Even if the detainee chooses to speak, those statements cannot be used in the criminal case as proof that the offense occurred or that the detainee committed it, as the law expressly provides.

Can the judge order pretrial detention at the custody hearing even if the detainee has no criminal record?

Yes. The absence of a criminal record is a relevant factor, but it does not prevent pretrial detention if the legal requirements are concretely shown, especially a risk to public order or to the criminal investigation and trial. What the judge cannot do is base the order on abstract assumptions or on the general seriousness of the offense, without pointing to concrete facts of the case that justify the periculum libertatis (the danger posed by leaving the person at liberty). A specific statement of reasons is a constitutional requirement and a condition for the decision to be valid.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.