anotheR system is possiBle RefoRming BRazilian justice Edited by Conor Foley with a preface by José Eduardo Martins Cardozo Minister of Justice Another system is possible reforming brAziliAn justice Edited by Conor Foley with a preface by José Eduardo Cardozo Minister of Justice International Bar Association 4th Floor, 10 St Bride Street, London EC4A 4AD T: +44 (0)20 7842 0090 F: +44 (2)20 7842 0091 [email protected] www.ibanet.org ISBN 978-0-948711-22-0 British Library Catalogue in Publication Data. A catalogue record for this book is available from the British Library. © International Bar Association 2012 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without the prior written permission of the copyright holder. Application for permission should be made to the Content Department at the IBA address. Selling without prior written consent prohibited. The views expressed in this publication are those of the contributors, and not necessarily those of the International Bar Association. Printed by Ministério da Justiça Secretaria de Reforma do Judiciário (Ministry of Justice Secretariat of Judicial Reform), Brasília. Production International Bar Association United Kingdom Foreign and Commonwealth Office Project coordinator Alex Wilks (Senior Programme Lawyer, International Bar Association’s Human Rights Institute) editor Conor Foley MiniStrY oF juStice José Eduardo Cardozo (Minister of Justice) Flávio Crocce Caetano (Secretary of Judicial Reform) Kelly Oliveira de Araújo (Director of Department of Judicial Policy) Wagner Augusto da Silva Costa (Chief of Staff) Eduardo Machado Dias (Coordinator-General of Judicial Service Administration) Washington Leonardo Guanaes Bonini (Coordinator-General of Modernization of the Administration of Justice) international Bar aSSociation editing and Production teaM Emily Silvester (Content Editor) Kath Farrell (Editor) Leonie Girard (Creative Artworker) Dr John Jeffries (Indexer) Hannah Caddick (Editorial Assistant/Junior Sub-Editor) ACknowlEdgEMEnts The IBAHRI would like to thank the following individuals who provided invaluable assistance, time and effort in the production of this book: Gabriele Barros de Luca, Wagner Augusto da Silva Costa, Stefanie Ferraz, Pedro Freitas, Cyro Pereira Isolan, Eduardo Machado Dias, Marcela Magalhães, Michelle Morais Graciela e Silva, Margarida Hourmat, João Pedro Lacerda de Sá Teles, Raquel Pérez Lozano, Cida Taboza, Thiago Farias Lima Silva, Luciana Pinto da Silva and Danielle Renée Machado de Oliveira. The IBAHRI would also like to thank the following institutions for their collaboration in the project: the National Justice Council (Conselho Nacional de Justiça), the Federal Council of the Brazilian Bar Association (Conselho Federal da Ordem dos Advogados do Brasil), the São Paulo Public Defender’s Office (Defensoria Pública do Estado de São Paulo), and the Ministry of Justice Secretariat of Judicial Reform (Secretaria de Reforma do Judiciário do Ministério da Justiça) and the National Secretariat of Human Rights (Secretaria de Direitos Humanos da Presidência da República). This project was financed by the United Kingdom Foreign and Commonwealth Office. We are especially grateful to Ivone Dezaneti, Philip Everest and Marcia Sumire of the British Embassy in Brasília for their support and dedication. Finally, the IBAHRI is grateful to the Ministry of Justice Secretariat for Judicial Reform (Secretaria de Reforma do Judiciário do Ministério da Justiça) for printing copies of this book in both English and Portuguese. acKnoWledgeMentS iii ContEnts PrEFACE vii José Eduardo Cardozo Minister of Justice PrEsEntAtIon ix Flávio Crocce Caetano Secretary of Judicial Reform ForEword xii Justice Richard Goldstone BIogrAPhIEs oF ContrIButors xiii IntroduCtIon 1 Reforming Brazilian Justice: a new Model for International Cooperation and Development ChAPtEr onE 13 The Mutirão Carcerário – Conor Foley ChAPtEr two 31 Legal Aid and Pre-trial Prisoners: an Experiment in the City of Rio de Janeiro – Julita Lemgruber and Marcia Fernandes ChAPtEr thrEE 55 The Advocacy Project – Helena Romanach, José de Jesus Filho and Juana Kweitel ChAPtEr Four 69 The Silent Revolution: Innovare and Justice Reform – Conor Foley ChAPtEr FIvE 81 Community Justice: Building Peace – Gláucia Falsarella Foley ChAPtEr sIx 101 The Brazilian Model of Legal Aid: Characteristics of the Public Defender’s Office since the Constitution of 1988 – Carlos Weis ChAPtEr sEvEn 117 The International Committee of the Red Cross in Brazil and its Work in Rio de Janeiro’s Civil Police Lock-ups – Felipe Donoso ChAPtEr EIght 129 The International Bar Association in Brazil: Forging Partnerships – Alex Wilks ChAPtEr nInE 145 Fighting for Peace in Rio’s Favelas and Beyond – Luke Dowdney ChAPtEr tEn 161 Criminal Justice and Penal Policy: a Positive Agenda for Reform – Pierpaolo Cruz Bottini glossAry And trAnslAtIons 175 IndEx 181 PrEFACE While there are many legitimate criticisms to be made of the Brazilian justice system, there is also much that we can be proud of, particularly when compared with other countries at similar levels of economic, social and political development. Indeed, such is the current mood of optimism, many have concluded that Brazil may finally be arriving at the bright future which was always ahead of us. But we should never forget the scale of the challenges that confronted us along the way and those that we still face. Brazil has bucked a global trend, reducing social inequality while, in virtually every other major country in the world over the last decade, it has been rising. Successful government initiatives have also had an astonishing impact in lowering rates of absolute poverty and violent crime. However, there is no reason for complacency in the wake of such successes given how high all three have been historically, and the blight that they have inflicted on our society and so many people’s lives. The transition from dictatorship to democracy, which occurred within the collective memory of most Brazilians, posed profound and multi-faceted challenges to our system of governance and justice. We have experienced what we see many other countries going through today – particularly in sub-Saharan Africa and the Middle East. One lesson learnt from the transition is that judicial reform is a concern for everyone and not just the judiciary or executive. The continuing social and economic development of Brazil would not have been possible without strengthening the ability of the judiciary to function in accord with the needs of its citizenry. This book tells the story of the ‘silent revolution’ within the Brazilian justice system. It brings together a range of actors, both national and international, and draws upon a rich variety of experiences. It does not seek to minimise the many problems that still confront us – particularly the conditions in many of our prisons, the slowness and inaccessibility of judicial processes, and the continuing weakness of our system of public defence – but, in highlighting what we have achieved and what still needs to be done, it tries to do two things. First of all, the book demonstrates that many of our most successful national programmes started out locally, either in a community or through voluntary efforts, before being scaled-up to national level. Brazilians are proud of their creative ingenuity and the number of ‘community justice’ initiatives that have developed in recent years is truly impressive. By providing a brief snap-shot of some of them the book intends to inspire more. Secondly, we believe that some of the experiences described in this book may have an international relevance. Our government does not try to conceal the scale of its challenge in living up to the commitments contained within the international human rights conventions that Brazil has ratified. These are, and should be universal in their scope, but each country strives to implement them within its own social, economic, political and historical specificity. Our experiences of justice sector reform may be of direct relevance to other countries facing similar challenges. We offer our experiences as a contribution to debate, hoping to learn from others in turn. Too often international organisations promote justice sector reform projects which have been developed in PreFace vii the global north and pre-packaged for export, as if they were the only models on offer. A dialogue within the global south is urgently needed, based on mutual respect and reciprocity, from which new paradigms can arise. josé eduardo cardozo Ministro de Estado da Justiça viii PreFace