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International human rights rules guarantee house arrest of pregnant women

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

In the request, the Public Defender of the state of São Paulo informs that the arrestee is "suffering from severe heart disease" and is "in an advanced stage of pregnancy". In addition, "it has been preventively arrested since 20/5/2014, due to the alleged practice of the crime provided for in article 33 of Law 11.343 / 2006 [drug trafficking]."

When examining the HC, Justice Lewandowski pointed out that formal defects would preclude consideration of the request. However, given the scenario of flagrant violation of human rights, and based on the Brazilian Constitution and international human rights standards, decided to grant the habeas corpus petition on its own motion.

Federal Constitution

In the Brazilian Federal Constitution, the president of the STF emphasized that the individualization of the sentence is a fundamental guarantee of the Democratic State of Law, so that the unborn child can not "pay" criminally for the alleged acts, still under investigation, practiced by his mother .

"If it is true that this reprehensible fact, if at the end proved to fit perfectly into illegal traffic in narcotics, the same can not be said as to the adequacy of the measure to the personal conditions of the accused (Article 282 of the Code of Criminal Procedure ) and of the own unborn child, who certainly can not extend the effects of possible and future punishment, in accordance with what is established in Article 5, XLV, of the Federal Constitution, "said the President of the Court.

Justice Lewandowski also pointed out that the Women's Penitentiary of the Capital found the number of prisoners 13% above of the capacity, a fact that would compromise safety and adequate medical treatment.

Human rights

In addition to the Brazilian legislation, Justice Lewandowski sought a foundation in international human rights standards, noting that "during the 65th United Nations General Assembly in December 2010, the Minimum Rules for Women Prisoners were approved."

These rules oblige UN member states, including Brazil, to "develop options for alternatives to pre-trial detention and punishment specifically directed at women offenders within the legal system of the Member State, taking into account the victimization history of several Women and their maternal responsibilities."

He emphasized that such rules "are addressed to penitentiary authorities and criminal justice officials, including those responsible for formulating public policies, legislators, the prosecution, the judiciary and parole officers involved in the administration of non-custodial sentences. Freedom and community action."

Since his inauguration speech as President of the STF, justice Ricardo Lewandowski expresses the desire that the members of the Brazilian Judicial Branch observe and apply the understandings of the Courts of Human Rights, integrating them into the legal practice of the country, citing that "It is also necessary for our magistrates to have greater contact with international organizations, such as the UN and the OAS, for example, especially with supranational tribunals regarding the application of the treaties for the protection of fundamental rights, including compliance with Jurisprudence of these courts ".



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