IACHR
Press Release
IACHR Welcomes decision in favor of women imprisoned in Brazil
March 14, 2018
IACHR Press and Communication Office
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Washington DC - The Inter-American Commission on Human Rights (IACHR) welcomes the decision of the Constitutional Court of Brazil that promotes the incorporation of a gender perspective in the determination of alternative measures to preventive detention, as well as the best interests of the child and special protection over persons belonging to groups in special risk situations.
According to information of public knowledge, on February 20, 2018, the Second Chamber of the Constitutional Court of Brazil (Supremo Tribunal Federal) granted house arrest to women and teenagers in pretrial detention who are pregnant, with children up to 12 years of age, or who are in charge of people with disabilities. This decision could have impact on the situation of around 4,500 women and adolescents deprived of liberty. According to the data released in 2017 by the National Penitentiary Department (DEPEN), 74% of incarcerated women have, at least, one son or daughter and 49% of women's prisons do not have reserved or adequate spaces to respond to the needs of pregnant women, with newborns or infants.
The decision of the Constitutional Court determines that at the time of arrest, every woman and adolescent must be examined to verify if she is pregnant, and consequently, determine the application of house arrest immediately. Likewise, these measures must be observed when conducting custody hearings. According to the decision of the Constitutional Court of Brazil, the lower courts have a period of 30 days to comply with this decision.
Considering the differentiated consequences faced by women and adolescents deprived of their liberty, the advantages of applying alternative measures, and the effects that their imprisonment generates on the persons under their care, the Commission has established in its recent report on preventive detention that States must adopt the necessary measures to promote the application of alternative measures to the deprivation of liberty to women. In particular, States should promote the incorporation in all its dimensions of a gender perspective and, where appropriate, of the best interests of the child and of special protection with respect to persons belonging to groups at special risk, such as persons with disabilities. In particular, the imprisonment of women - and consequently the breaking of protective bonds - can have severe consequences for people with disabilities under their care, as they are exposed to situations of poverty, marginalization and abandonment.
"From a gender perspective, imprisonment has a differentiated affectation for women." said the President of the IACHR, Commissioner Margarette Macaulay. "The decision adopted by the State of Brazil complies with the recommendations made by the Commission on the matter, and seeks to protect imprisoned women against the violence that characterizes the context of deprivation of liberty in the countries of the region. In addition, another positive aspect that will result from the implementation of this measure is the reduction of the high rates of preventive detention that characterize the country," she added.
The Commission also salutes this decision because of the positive impact it has on the rights of children in Brazil, given that children of imprisoned mothers have the same right to grow and be cared for in a safe and favorable environment for their development, as other children do. In practice, the conditions of prisons imply that these children do not have the same opportunities to enjoy integral development, thus exposing themselves to serious negative effects on the enjoyment of their rights, with impacts on their integral development and well-being. The IACHR acknowledges on this occasion that the decision of the Federal Supreme Court has integrated the principle of the best interest of the child when evaluating the application of alternative measures to deprivation of liberty.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
* This is a corrected version of the press release originally issued.
No. 049/18