INSPER CONHECIMENTO

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In the early stages of the pandemic in Brazil, the CNJ (National Council of Justice or CNJ in Portuguese) recommended that courts adopt measures in order to prevent the spread of the virus in the prison system. In the state of São Paulo, however, few HCs (habeas corpus application) that mentioned Covid-19 were accepted.

Natália Pires de Vasconcelos, Professor at Insper, Maíra Rocha Machado and Daniel Wang, Professors at FGV Direito SP, analyzed 6,781 rulings on HCs applications published in the Official Gazette of the São Paulo Court of Justice between March 18 and May 4 – 88% of them were denied.

Habeas corpus consists of a type of lawsuit, aiming at protecting an individual’s right to liberty, that is, if someone is arbitrarily arrest  or feels that their right to freedom of movement  is under threat, they can take action it.

In the cases considered by researchers, the application were submitted to request a change in the sentence serving regime – to  home detention or to semi-open or open regimes – and above all, to revoke pre-trial detention – when the incarceration occurs prior to a final judgment. there has not yet been a final ruling on the case.

Both the possibility of changing the regime and the reevaluation of provisional imprisonment, which together represent about one fifth of the total imprisonment in the State of Sao Paulo, according to official data, appear in the list of CNJ recommendations.

The Council recommended that people in high risk groups for COVID-19 should be prioritized, this includes elders, people with respiratory or infectious diseases – such as HIV, tuberculosis or hepatitis -, mothers of children up to 12 years of age and pregnant women. The recommendation would also apply to people imprisoned in units overcrowded or without health staff.

To examine the decisions of the TJ-SP(Justice Court of Sao Paulo), the professors used text analysis in Phython, to determine whether the court granted the he HC relief and if the appeal where done individually or collectively.   This language processing analytics searches for common expressions, allow analysis of large volumes of texts at – and the opportunity to investigate their content.

Of all the collected decisions, 371 were read in full for a qualitative analysis. Almost a quarter of this sample, 95 cases, referred to people in high risk groups for COVID-19. Only five requests were granted.

In one of the rejected cases, whose requester was not a person in the risk group, but who had neither committed a violent crime nor posed serious threat, the judge argued: “The virus in circulation is dangerous, and as it is not possible to arrest it, we arrest ourselves. A drug dealer in liberty  is also dangerous, but we can get rid of them as long as we arrest them or keep them in prison, even for a period that makes them reflect on the seriousness of what he had done”.

In the evaluation of the Insper / FGV team, the results obtained so far are expressive and indicate that the São Paulo Court of Justice is not following the CNJ guidance regarding COVID-19.

The picture is similar to that verified by the Public Defender’s Office of the State of São Paulo. They found that release permits were issued in 3% of the cases of people whose situation is covered by the CNJ guidelines.

Failure to follow the recommendations, however, can increase exposure to Sars-Cov-2. In the prison system, the chances of contracting infectious diseases can be up to 60 times higher than outside. In addition, in São Paulo, the system is overcrowded.

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