As mentioned above, several powers vested in the PDO are aimed at preventing torture. This section presents how, in practice, the public defenders of the State of Rio de Janeiro carry out their tasks and understand their own role in relation to the prevention of torture.
In this regard, Carver and Handley highlighted in their recent study the importance of the implementation of preventive measures related to the prevention of torture. Indeed, they found that
The interviews and observations conducted for the present study were fundamental to understanding the way in which the public defenders can fulfil in practice the mandate vested in the PDORJ. In particular, the observations allow us to understand how the interviews between the public defenders and the detainees are conducted in practice, to witness the environment in which they take place, and to identify the constraints experienced by public defenders. The interviews also sought to highlight how the practitioners understand their own role in preventing torture, as well as their perceptions of the occurrence of torture in the penitentiary system of the State of Rio de Janeiro. The self-perception of the public defenders is a relevant element to understanding how they undertake their tasks in practice, as it helps to explain the choices and strategies they adopt.
The findings of the present study are based on semi-structured interviews conducted between March and September 2016 with twenty-seven of the thirty-two public defenders working for NUSPEN at the time,86 as well as the public defender in charge of the monitoring visits conducted by NUDEDH, for a total of twenty-eight interviewees. All thirty-two public defenders of NUSPEN were contacted and invited to participate in the study. One public defender declined to take part in the interview, and four failed to respond. The three coordinators of NUSPEN were also interviewed, as were the public defender responsible for the area of criminal defence and a member of the Office of the Director of the PDORJ. Representatives of the National Penitentiary Department, the National Mechanism on the Prevention and Combating of Torture, the Public Ministry of the State of Rio de Janeiro, and civil society organizations (the Association for the Prevention of Torture and the Pastoral Carcerária Nacional) were also interviewed. The first coordinator of NUSPEN and the undersecretary of the Department of Justice of the State of Rio de Janeiro at the time of the creation of NUSPEN also accepted to be interviewed.
The interviews were conducted in Portuguese, without an interpreter; they were recorded and are on file with the author. All the persons interviewed consented, in writing, that the information provided would be used for an academic publication. The public defenders of NUSPEN were interviewed under the condition of anonymity. The other interviewees agreed to participate in the interview without having their anonymity preserved.87
The author also participated in monitoring visits with NUDEDH, observed interviews conducted by NUSPEN with detainees, and attended meetings between public defenders and family members of detainees.
Practice and perception
The activities of the PDORJ can be divided into three parts: individual representation of detainees (under the responsibility of the public defenders of NUSPEN), monitoring visits to detention centres (under the responsibility of NUDEDH), and collective actions and public interventions (under the responsibility of the coordinators of NUSPEN).
Individual representation of detainees by public defenders of NUSPEN
As mentioned, Brazilian law entrusts public defenders with representing detainees before courts for any legal matter arising from their criminal conviction. In the case of the PDORJ, an internal regulation specifies that the public defender is also responsible for representing detainees with any other legal matter they might face. For instance, public defenders may seek to secure medical treatment for the detainee, or represent him or her in family law procedures.88 On average, one public defender represents 1,077 detainees.89
Every week, the public defenders90 conduct interviews in detention centres, meeting an average of sixty detainees per week.91 The interviews between public defenders and detainees are short (an average of five minutes) and focus mainly on legal matters relating to the enforcement of the sentence. The public defenders share information about transfers to a different category of penitentiary establishment and other related requests (parole, temporary absence from the detention centre, etc.). They also discuss disciplinary actions taken against detainees, as these may have further negative consequences for the detainee – they may lead, for example, to the postponement of a transfer to a different category of penitentiary establishment and ultimately the release of the detainee. The interview is normally conducted in a way such that the public defender shares basic information with the detainee (i.e., date of release, date of transfer) and provides information about any legal actions they may take on the detainee's behalf. They may sometimes also collect information from the detainee in order to better inform their legal strategy.
Occasionally, public defenders receive special requests from detainees not strictly related to the enforcement of the sentence. In particular, detainees denounce the lack of medical care, which prompts the public defenders to take action on their behalf in that regard. Other requests could relate to facilitating family visits, transfers to other detention centres, family law matters, etc.
The public defenders entrusted with the legal representation of detainees generally do not visit the cells. In fact, only three public defenders shared that they regularly visit the cells where detainees are held. The main reasons for not visiting them were because NUDEDH carries out inspections, because there is not enough time to visit cells regularly, and to avoid generating conflict with the authorities.
The interviews between public defenders and detainees are usually not conducted in private, although the public defenders were emphatic in stressing that the interviews are not conducted in presence of penitentiary staff. Twenty-three public defenders reported that they do not conduct interviews in private, and only three respondents said that they do.92 Indeed, other detainees are often attended to simultaneously by interns or support staff, under the supervision of public defenders. It is also common that detainees wait to be interviewed in the room where other interviews are already taking place, or not far from it, which allows them to eavesdrop on the conversations. Depending on the size of the room where public defenders meet with detainees, there can be anywhere from one to thirty detainees waiting in the room.
The authorities play a crucial role in facilitating the work of public defenders. In particular, public defenders have to share the list of the detainees with whom they want to meet one day in advance to allow smooth movement on the day of the interviews. The cooperation of staff is considered essential by public defenders because of the key role they play in facilitating the interviews by bringing the detainees to the public defenders’ room. In that regard, nine public defenders spontaneously mentioned the importance of maintaining a good relationship with the penitentiary administration. These public defenders mentioned that the need for cooperation means they would refrain from personally confronting the authorities by being personally active in denouncing alleged acts of torture or by causing annoyance to the staff by visiting the cells.
It is not part of the routine of the public defender to actively inquire about occurrences of violence. As one public defender explained:
[If] we see signs of injuries or if we receive information about torture from a detainee, we ask questions. But if we do not have information, it is not part of our practice to act on that. That is because of the large number of interviews we have to complete.93
According to another public defender:
[D]etainees see the public defender as their “exit door”. They might speak about torture if they have long sentences. They are interested in three things: appeal, release, and transfer to a better penitentiary establishment. When someone else from NUDEDH comes, the relationship is different. They talk to them to make denunciations. It rarely happened to me; when it occurs, it must be a very serious situation. Even when I ask, they mention that they do not want to talk about that; they want to address the issue of liberty.94
One public defender stressed that “our focus is legal; it is not to identify torture”.95
Although inquiring about torture is not part of their routine, public defenders identified various means through which they receive allegations of torture: interviews in detention centres, appointments with family members, letters sent to the PDORJ, and notes sent through other detainees during interviews.
In general, however, public defenders seldom receive denunciations of torture during individual interviews. When public defenders collect allegations of torture, they notify the coordinators of NUSPEN, who are responsible for the follow-up.96 Between October 2015 and August 2016, only eight accounts were shared by public defenders with the coordinators of NUSPEN.97 None resulted in a formal denunciation to the Public Ministry.98
Monitoring activities of NUDEDH
The PDORJ also conducts monitoring visits to detention centres.99 At the time of the data collection, the NUDEDH was responsible for the organization of these visits. It counted on one public defender and two interns to organize and take part in the visits. As per internal regulations, two inspections were organized every month.100 One member of NUSPEN usually takes part in the visit, as well as a structural engineer.
The inspection is based on observations and discussions with detainees, and seeks to assess conditions of detention and identify overarching issues. It does not seek to address individual cases. The discussions with detainees are conducted collectively and in common spaces in order to avoid reprisals. During inspections, individual interviews in private are conducted only exceptionally. The public defender in charge of such inspections considers that detainees are more scared to share their stories in private than in a group. A report is prepared for each visit conducted. The reports are confidential, shared within the PDORJ and with the MEPCT. The PDORJ can, however, decide to use them in judicial proceedings against the state.101
According to the public defender in charge of the inspections, detainees share accounts of torture in the vast majority of inspections.102 They are either shared spontaneously or after the public defender has asked questions about the occurrence of violence. However, according to this public defender, detainees usually do not want to officially lodge complaints because of fear of reprisals. When NUDEDH receives more substantiated denunciations, it shares them with NUSPEN for further internal consideration. NUDEDH shares an average of five to ten such allegations per month with NUSPEN.
Between 1 January 2015 and 11 August 2017, only three cases of torture involving four victims identified in the context of inspections were formally denounced to the competent authorities. The public defender responsible for monitoring visits also highlighted that NUDEDH received more denunciation of deaths considered “suspicious” (i.e., which might be the result of violence) than formal denunciations of torture.
Collective actions and political activities by NUSPEN
While public defenders of NUSPEN are responsible for representing detainees before the courts for their individual cases, the coordinators of NUSPEN, together with NUDEDH, are responsible for collective actions taken on behalf of detainees. For instance, collective actions challenging rules concerning visits by relatives, seeking the recognition of reading as an activity leading to remission, or requesting the deactivation of a detention centre are presented by NUSPEN.
Additionally, both NUDEDH and NUSPEN collaborate with other organizations to tackle the issue of torture in the penitentiary system. In particular, the PDORJ is a member of the State Committee for the Prevention and Combating of Torture, a forum for discussing policies and initiatives related to torture prevention. Since 2015, the PDORJ is also part of a working group on torture that includes the Public Ministry and the MEPCT. The working group seeks to improve coordination amongst these institutions when accounts of torture arise.
The PDORJ also advocates for the protection of the rights of people deprived of liberty in international human rights fora. It has denounced several situations before the inter-American human rights system and the Special Procedures of the UN Human Rights Council, and has met with representatives of the SPT. The PDORJ also frequently intervenes in the media, drawing the attention of the public to problems in the penitentiary system.
Public defenders’ perception of their role and of occurrences of torture in Rio de Janeiro
This section focuses on public defenders’ perception of their own role in preventing torture. It also seeks to present their perception of occurrences of torture in Rio de Janeiro, with particular attention placed on their perception of the impact that their actions have on the prevention of torture. The relevance of the findings in this regard rests on the conclusion by Carver and Handley that “the way the torture prevention measures are implemented is the main factor determining their effectiveness”.103 In turn, the way the practitioner will implement the preventive measures is influenced by how they understand their role, as well as the potential impact of their work. Indeed, their perspective on the prevalence of torture in the penitentiary system and their role in preventing it will inform the way they will address this issue. Highlighting these subjective considerations helps to explain the choices made by the public defenders.
First, all twenty-eight public defenders interviewed considered that it is part of the role of the PDORJ to prevent torture and identified various ways in which the institution plays this role. Being present inside all detention centres, meeting regularly with detainees and conducting monitoring activities were relevant actions identified by the public defenders. According to them, this regular presence and providing detainees with a channel for denouncing torture would, in turn, result in prison staff refraining from torturing detainees because of the possibility of denunciations and being found responsible for these acts. The public defenders also mentioned that their work helps to reduce tensions and risk of violence inside the detention centre by providing detainees with regular updates on the date of their release and transfer to other categories of penitentiary establishment.
It is important to mention that twenty-two out of the twenty-eight public defenders spontaneously shared their belief that the presence of representatives of the institution has the effect of preventing torture. While public defenders provided a variety of reasons for this belief, it is striking to see that such a high number of public defenders spontaneously mentioned this fact. This is interesting because public defenders do not actively seek to ascertain whether detainees are victims of violence, and they rarely receive such allegations during the individual interviews conducted. Indeed, the interviews primarily focus on the procedural aspects of the enforcement of the sentence, such as the date of release and the transfer to other penitentiary establishments.
When asked whether they consider that torture is underreported in the State of Rio de Janeiro, twenty-four out of the twenty-eight public defenders answered in the affirmative.104 One of the twenty-eight public defenders said that torture was maybe underreported, and two did not share an opinion on the matter. Only one public defender considered that torture was not underreported in Rio de Janeiro.
The public defenders who considered that torture was underreported were asked the reason for such underreporting. Of these twenty-four public defenders, fourteen identified detainees’ fear of reprisal as a reason. Nine of those public defenders also mentioned explicitly that the lack of protective mechanisms for individuals denouncing torture in detention explained why public defenders could not ensure their safety.105 Five public defenders identified the lack of accountability and possibility of getting redress as a reason why detainees do not denounce torture. Four public defenders held that detainees have often come to believe that torture is simply to be expected when one is detained. Three public defenders stressed that detainees often do not make the distinction between the judge, the prosecutor and the public defender – given the role of the judge and the prosecutor in the conviction of the detainees, this confusion may inhibit the trust that detainees have in public defenders. Finally, one public defender mentioned generally a possible lack of trust in the public defender on the part of detainees.
The public defenders were asked to identify the strengths of the PDORJ in preventing torture. Half of the public defenders identified their regular presence in all detention centres of the state. Seven public defenders highlighted the legitimacy of the institution in the eyes of detainees and staff. Five respondents stressed the ability of the PDORJ to act strategically, including through actions seeking to safeguard collective rights. Three persons identified the PDORJ's capacity to use the judicial system, two identified the competence of the public defenders, and two referred to the institution's capacity to provide legal information. Tellingly, only one public defender mentioned the capacity to identify torture.
Finally, the public defenders were asked to identify the weaknesses of the institution when it came to the prevention of torture. Sixteen of the twenty-eight public defenders considered that lack of resources (support staff, psychologists, structural engineers, material resources, etc.) is a shortcoming of the PDORJ. Three respondents considered that there is a lack of strategic action in relation to torture. Three public defenders cited the lack of a protocol to respond to accounts of torture shared by detainees. Three respondents considered that more monitoring visits should take place. Finally, three public defenders complained that they are dependent on other institutions, such as the Public Ministry, when it comes to following up on denunciations of torture.