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International rules of human rights guarantee house arrest to pregnant woman

The Chief Justice of the Brazilian Federal Supreme Court (STF), Ricardo Lewandowski, conceded habeas corpus (HC 126107) to a pregnant woman that was arrested at the Female Penitentiary of the city of São Paulo. With the decision, the pregnant women will remain preventively arrested, but at home.

In the claim, the Office of the Public Defender of São Paulo informs that the arrestee “has severe heart disease” and is in “an advanced stage of pregnancy.” Furthermore, the arrestee “has been preventively arrested since 5/20/2014 due to the supposed practice of the crime provided in article 33 of the Law 11.343/2006 [drug trafficking].”

After analyzing the HC, Chief Justice Lewandowski highlighted that formal defects impeded the analysis of the claim. However, before the scenario of flagrant human rights violation, and based on the Brazilian Constitution and in international laws of human rights, Chief Justice Lewandowski ruled to concede ex officio the demand of habeas corpus.

Federal Constitution

On the Brazilian Federal Constitution level, the President of the STF stressed that the individualization of the sentence is a fundamental guarantee of the Rule of Law so that the unborn child cannot criminally “pay” for the supposed acts, which are still under investigation, committed by its mother.

“If it is certain that this reprobate fact, if, at the end, is proved, it perfectly fits in evident illicit trafficking of narcotics, this cannot be said in relation to the measure’s adequacy of the personal conditions of the accused woman (article 282 of the Code of Criminal Procedure) and of the unborn child itself, certainly to whom the effects of the eventual and future punishment cannot be extended to, in the terms of what is established by article 5, XLV, of the Federal Constitution,” stated the President of the STF.

Chief Justice Lewandowski further highlighted the fact that the Female Penitentiary of the Capital surpasses its inmate capacity by 13%, a fact that compromises the security and adequate medical treatment.

Human Rights

Besides the Brazilian legislation, Chief Justice Lewandowski sought foundations on international laws of human rights, when remembering that, “during the 65th General Assembly of the United Nations, held in December of 2010, the Standard Minimum Rules for Arrested Women were approved.”

These rules oblige the member-states of the UN, including Brazil, to “develop options of measures and alternatives to the preventive detention and to the sentence specifically designated to female offenders, inside the judicial system of the member-state, considering the history of the victimhood of diverse women and their maternal responsibilities.”

He also highlighted that such rules “are turned towards penitentiary authorities and criminal justice agents, including those responsible to formulate public policies, legislators, the Public Ministry, the judiciary and the public servants responsible to audit the probation involved in the management of the non-imprisonment sentences and of measures in the environment.”

Since his inaugural speech as President of the STF, Chief Justice Ricardo Lewandowski wishes that the members of the Brazilian Judiciary Branch observe and apply the understanding of the Human Rights’ Courts, integrating it to the judicial practice of Brazil, citing that “it is necessary, also, that our magistrates have a greater interlocution with international organizations such as the UN and OAS, for example, especially with the supranational courts in relation to the application of the treaties of human rights’ protection, including with the observance of these courts’ case laws.”


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