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Justice Celso de Mello cites "Bangkok Rules" in an order requesting proof that inmate is a nursing mother

Justice from Brazilian Federal Supreme Court (STF) Celso de Mello has opened a five-day deadline for the author of Habeas Corpus (HC) 134734, filed in defense of F.S.C., arrested cautiously for drug trafficking, evidence that she is a nursing mother. According to the lawyer in the petition, her client was transferred to the Franco da Rocha Women's Penitentiary in order to stay in touch with the baby and breastfeed him.

In requesting confirmation of the lawyer's allegations, Justice Celso de Mello points out that, if the situation be confirmed, it "will prove capable of giving rise to the application, such as the circumstances surrounding the case in question, subsection V of article 318 of the Code of Criminal Procedure, in the wording that gave the law of early childhood (Law 13.257, 03/08/2016).

The Code of Criminal Procedure provision determines that the judge may "substitute preventive custody by domicile", among other hypotheses that are exhaustively listed, in the case of a woman with a child under 12 years of age. This measure aims, Justice Celso de Mello points out, to give "differentiated treatment to a woman prisoner who, among other things, has the status of pregnant or nursing mother”. Justice Celso de Mello adds that this legal norm "has roots in an important international document to which Brazil has been linked, politically and legally, externally," entitled Rules of Bangkok.

"The United Nations General Assembly, on the recommendation of the Economic and Social Council, adopted rules for the treatment of female prisoners and the application of non-custodial measures for women offenders, the so-called Bangkok Rules, in which the elaborating and voting has active participation of the Brazilian State, " Justice Celso de Mello said when requesting the information.

The Justice adds that "the national legislator, although incompletely, sought to reflect in the criminal procedural plan the spirit of the Bangkok Rules, by means of innovations introduced in the Code of Criminal Procedure, especially Articles 6, 185, 304 and 318 , and also in the Law on Criminal Execution (Articles 14, paragraph 3, 83, paragraph 2, and 89).

"The merit of this treatment of women's prisons is also justified" by the need to give special protection to the child and adolescent population, especially to children, in order to make effective the commitments that Brazil assumed not only in face of its Constitutional order, but also, at the international level, in signing the United Nations Convention on the Rights of the Child."

According to Justice Celso de Mello, the STF, notably through its Second Panel, "has granted provisional remedy or even granted 'habeas corpus' orders in favor of women prisoners who are pregnant, nursing mothers, mothers of Children of up to twelve (12) incomplete years or still considered imprescriptible to the special care of a person under six years of age or with a disability."

National Justice Council

Considered as the main worldwide normative framework on female imprisonment, the Bangkok Rules had their official version for Portuguese launched on March 8, the date of the International Women's Day, by the National Justice Council (CNJ). Approved by the United Nations in 2010, the document provides guidelines for the treatment of female prisoners and non-custodial measures for female offenders.

On the occasion, the president of the National Justice Council and Federal Supreme Court, Justice Ricardo Lewandowski, stressed that the publication of the document is the first step to recover a historical debt of the country, regarding the protection of this social group. The Justice Lewandowski noted that although the Brazilian government participated actively in the negotiations for the drafting and adoption of the Bangkok Rules, the Bangkok Rules remained little known in the country.

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