The right to temporary departure

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By MARCELO AITH*

Parliamentarians, eager to please their electorate, are not concerned about the prison life of prisoners held in Brazilian prisons

1.

In recent days, the so-called “temporary getaway” has gained new directions. Law 14.843/24, published in an extra edition of Official Gazette on April 11, 2024, originated in Bill 2253/22, approved by the Chamber of Deputies and the Senate, introducing some important changes to the Criminal Execution Law, such as the extinction of temporary departures to visit family (art. 122, I) and participation in activities that contribute to the return to social life (art. 122, III).

The President of the Republic partially vetoed the text, offering the following legal justification: “The institution of temporary departure is linked, exclusively, to the scope of the semi-open regime, in which the temporal projection of the execution of the sentence requires, from the State, proactive action for the achieving a balance between (i) the deprivation of freedom of those who violated criminal law (punitive action) and (ii) their progressive reintegration (preventive action). Therefore, the proposal to revoke the right to family visits, as a form of temporary exit, would restrict the prisoner's right to family life, in such a way as to cause the weakening of emotional-family ties that are already affected by the imprisonment situation itself”.

The veto also highlights that “the repeal of item III of the caput of art. 122 of Law No. 7.210, of 1984 – Penal Execution Law, since participation in activities that contribute to the return to social life is contained in item I of the caput of art. 3rd of the Bill, which also deals with family visits, an object of vetoed unconstitutionality”.

2.

The presidential veto is in line with the most modern jurisprudence of the Federal Supreme Court. The STF, when analyzing the Claim of Non-Compliance with Fundamental Precept (ADPF) No. 347, recognized the unconstitutional state of affairs in Brazilian prisons and did so with strong colors, as can be seen from the vote of Minister Marco Aurelio Mello, who asserts that “Prisons and police stations do not offer, in addition to space, minimum sanitary conditions. According to reports from the National Council of Justice (CNJ), prisons do not have facilities suitable for human existence. Precarious hydraulic, sanitary and electrical structures and filthy cells, without lighting and ventilation, represent a constant danger and risk to health, due to exposure to agents that cause various infections. The bathing and sun areas share the space with open sewers, into which urine and feces flow. Prisoners do not have access to water, for bathing and hydration, or to minimal quality food, which often reaches them sour or spoiled. In some cases, they eat with their hands or in plastic bags. They also do not receive basic hygiene materials, such as toilet paper, toothbrushes or, for women, panty liners.” (Brazil, STF, 2015).

According to information from the National Secretariat for Penal Policies – SENAPPEN, data from January to June 2023, Brazilian prisons have 649.592 people in physical cells. The number of existing vacancies is 481.835. In a chaotic system, such as the national one, with a deficit of almost 167 thousand places in prisons, how can we establish a mechanism for increasing the fulfillment of sentences, with the extinction of temporary trips to visit family and participation in activities that contribute to the return to prison? social interaction, as proposed by Bill No. 2.253/2022.

It should be noted, it is appropriate, that there are 331.557 (January 2024) arrest warrants pending execution, depending on what is obtained from the National Prison Monitoring Bank (BNMP), imagine if they were all executed? The penitentiary system would come to a boil.

In the Final Report of the Parliamentary Commission of Inquiry of the Chamber of Deputies, formalized in 2009, it already indicated that: “[…] overcrowding is perhaps the mother of all other problems in the prison system. Overcrowded cells cause unhealthy conditions, illnesses, riots, rebellions, deaths, and degradation of the human person. The CPI found men piled up like human trash in crowded cells, taking turns sleeping, or sleeping on top of the toilet.”

In the same sense, the final report of the CPI on the Prison System of 2015 pointed out that little changed between 2009 and 2014, as can be seen from the excerpt below: “The first and perhaps the main problem concerns prison overpopulation, which is present in all Brazilian states. In fact, according to data released by the Ministry of Justice (referring to June 2014), “all Federation Units have an occupancy rate above 100%”.

Important work was carried out by the Specialized Center for Prison Situations (NESC) of the Public Defender's Office of the State of São Paulo. The report prepared by NESC exposes the ills of the São Paulo penitentiary system. 27 prison units in the state were inspected, and very serious problems were found, such as: (a) overcrowding; (b) precariousness of the physical structures of buildings, including lack of ventilation, infiltration, cracks; (c) presence of insects and other pests; (d) lack of medical assistance; (d) rationing of water and hot showers; (e) limitation of sunbathing; (f) lack of or limited supply of personal hygiene material; (g) lack of food and; (h) violation of physical and psychological integrity and collective sanctions.

The Specialized Center for Prison Situations points out that there is a “perverse combination of violations of rights in prison, since unhealthy conditions, overcrowding and other degrading conditions are combined with the lack of medical and dental care and the absence of other health professionals, which makes it impossible to be healthy in these environments or, at least, not to contract any disease.”

Among the most sensitive and shocking problems highlighted by the Specialized Center for Prison Situations is the situation faced by prisoners who use a colostomy bag and catheter. The report highlights that they do not receive adequate treatment for hygiene and changing equipment. Without adequate hygiene and maintenance, equipment is a vector for infections, which can lead to septicemia and, consequently, death.

The report highlights another terribly serious issue consisting of the lack of regular and sufficient distribution of basic hygiene items. The appalling and disgusting situation of women imprisoned in the CDP Feminino de Franco da Rocha stands out. In that unit, numerous women reported to public defenders that, to make up for the lack of feminine absorbents, they use a piece of towel, a sheet of foam and even bread crumbs to hold back their menstrual flow.

3.

However, parliamentarians, eager to please their electorate, are not concerned about the prison life of prisoners held in Brazilian prisons. It doesn't matter that the STF decided to recognize the unconstitutional state of affairs in the country's prisons. The noble deputies and senators do not even take the care to examine the effectiveness of the measure proposed and approved by them.

They don't want to know that only a tiny proportion of prisoners who leave temporarily do not return to prison (between 2% and 5%). They are also not at all interested in knowing that the rates of those who commit a crime during this period are even lower (less than 1%). What really matters is guaranteeing the vote of those who believe that prisoners in general (convicted or pre-trial detainees) deserve to go through the difficulties they face in prison.

The worst thing is that the population, misinformed by the mainstream media and suffocated by the Whattsapp chain of disinformation, supports the end of the temporary exit (commonly called exit), arguing that those who cause violent crimes do not deserve this legal benefit, without having the knowledge that Law 14.843, of April 11, 2024, changed §2 of article 122 and extended the limitation of access to the aforementioned right or to external work without direct supervision, to “convicts serving a sentence for committing a heinous crime or with violence or serious threat against a person”, that is, restricting those who could effectively cause a risk to society with their premature exit from the system. Previously, “a convict serving a sentence for committing a heinous crime resulting in death” was not entitled to temporary release, that is, the limitation was substantially restricted.

Therefore, influenced by erroneous information, they start from a wrong premise, since those they want to see in prison will not be entitled to the right provided for in article 122 of the Penal Execution Law.

João Marcos Buch highlights, in a few words, why there is a need to discuss and present extrication instruments for the national penitentiary system and not create ways to make life in prison even worse: “Years ago, on a trip to Berlin, I decided to visit the Camp Concentration Center in Sachsenhausen, which is located on the outskirts of the thriving German capital. In that place, thousands of political opponents, Jews, gypsies and homosexuals were exterminated during the Second World War. Upon entering the field, passing through the emblematic portal under the inscriptions “Arbeit Macht Frei” (work frees), walking among the rubble and preserved warehouses, I felt deep anguish”. […] Today, when stepping on the floor of a prison and seeing the holocaust of that population made up mostly of young people, all crowded together and mixed, confined in dirty spaces, with rats and cockroaches, without adequate clothing, without hygiene materials , eating the pasty daily ration served with his hands; When I realize that most of them will not survive, will kill and die before the age of 30, I feel the same anguish, as I felt in the concentration camp”.

I hope parliamentarians are able to understand that the veto is correct and that the extinction of the right of temporary exit is unconstitutional, considering, let me repeat, that the Brazilian penitentiary system is effectively thrown to its knees and are true crushers of the dignity of prisoners, as recognized by the STF in ADPF 347/DF.

*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.


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