A 15 -year -old is accused of theft, using a fake weapon. He participates in a court hearing in a virtual way. And he tells the responsible judge that, at the time of the seizure, a military police sergeant (PM) assaulted him with a bottle in the head and a slap on his face.
The teenager shows the bruise and says he did not go into a body struggle with the PM, nor did he try to resist apprehension. “He said he didn’t like my face and started hitting me.”
Although the adolescent says that he can recognize the aggressor, the injuries to be visible and that there is a report from the Medical-Legal Institute (IML), none of the actors of the Judge, Prosecutor, Defender and Advisor-Mobilized Judge, Prosecutor, Prosecutor, Defender and Advisor- to investigate the policeman.
The case is highlighted in the Paths of Torture in Brazilian Youth Justice: the role of the Judiciary, made by the National Council of Justice (CNJ) between September 2023 and September 2024 in six federative units representing the five regions of the country. According to the CNJ press office, the federative units were not identified in the survey due to the General Data Protection Law (LGPD).
The research seeks to understand how torture against adolescents accused of committing offenses, who are responsible for the aggressions and how the magistrates act in these cases. The research focused on presentation hearings, which work the same way as custody audiences for adults.
The researchers observed 185 presentation hearings in the six federative units. In only 38% of the hearings, the magistrates asked adolescents how approaches and seizures were made. And in 18.9% of cases, they asked directly about torture or abuse. That is, the minority follows the procedures of CNJ Resolution 414/2021. Of this total hearings, 23 complaints of torture were made.
“Teenagers feel free to say that there was some kind of police violence when the magistrates give room for the teenager to speak. Spontaneously, it is very rare for teenager to talk about torture and/or abuse (only five cases in all 185 hearings observed, which corresponds to 2.7% of cases), ”says an excerpt from the survey.
According to the research, the theme of torture appears very little at the presentation hearings because the judges do not ask directly to the adolescent, there is no concern to establish active and welcoming listening, with accessible vocabulary, and because young people are afraid of retaliation and persecution.
The survey reveals that in 91.3% of the complaints, the perpetrators of the violence were military police and that, in just nine of the 23 complaints of torture, the case was referred to the authorities, such as the Public Prosecution Service, the Judicial Police and administrative bodies of correction.
By Law 9.455/97, which deals with the effective criminalization of torture, the penalty for this crime is imprisonment of two to eight years. The penalty may be increased from one sixth to one third, if the crime is committed by a public agent and if it is against a child or adolescent. The crime of torture is unenforceable, cannot be the target of free or amnesty, and the penalty must be served in a closed regime.
Torture and mistreatment
The researchers found torture situations that left apparent marks in the bodies of adolescents, as well as consequences in the state of mental health. In most cases, aggressions occur during approach or seizure of the young and on displacement to the police station.
The types of violence reported by adolescents were punches, kicks, asphyxiation, slaps, shocks, drowning and running over. Hands, feet, cassettes, firearms, pliers, teasers, spray pepper, sticks and motor vehicles. Some said they were long periods inside the trunk of the car, even after arriving at the police station, and was ill with the heat and shortness of breath. In addition to direct death threats, they denounced threats against family members, persecution and flagrant forged.
In the police stations, unhealthy conditions of the cells, the absence of bathroom, mattress or covered, lack of food and drinking water were reported. There were also long periods without eating, with the prohibition of receiving food from family members. Female adolescents reported precarious conditions regarding menstrual hygiene and the ban on using the bathroom at the police station, as well as intimate vexatious magazine.
Even with these reports, in only one of 185 hearings, the magistrates analyzed the examination of the body of crime. According to the study, this is because the judge does not ask about the examination, which may not have been performed or has not arrived in time for the case file. And even with the report of torture by adolescents, “there is no guarantee that the magistrate will analyze the report, or even require access to the report.”
Of the 23 complaints of torture, in only eight, the judge requested during the hearing that the case was explicitly registered in minutes. In ten cases, the denunciation of torture was not sent to the competent bodies.
Profile
In 88.1% of the 185 presentation hearings surveyed, the adolescent was male, at 11.4%, female, and 0.5% (one case) was trans. Regarding breed or color, 51.9% were black, 36.2%, brown; and 10.3%, white. Adding black and brown, there are 88.1% black adolescents. In 60% of cases, young people were 15 to 17 at the time of the hearing.
In 16.8% of the hearings, the accused were unaccompanied as responsible. The mother was the main escort (58.9%), followed by the father (14%). Other female relatives (grandparents, aunts, sisters, and special curators) appear following. Female escorts are the majority: 67.6%. In 8.6% of cases, the teenager had more than one companion.
Regarding the form of apprehension, in 69.2% of the situations, there was flagrant. In 15.7%, adolescents were released at the police station with a date set for the hearing and 8.6% were seized by search and seizure warrant.
The main charges were theft (35.7%), acts associated with the drug law (Law 11.343/2006 (17.3%) and thefts (11.9%). At the time of presentation hearings, 38.4%of Adolescents confessed to the offense, 51.9% denied and 9.7% were silent.
Presentation hearings
After the adolescent’s seizure, only two hearings are foreseen and, as a rule, in only one, he is heard: in the first phase of the process of investigating the offense, when he is presented to the judge. At this point, it is decided to decree or maintain the hospitalization, and the adolescent has the right to be accompanied by parents and a lawyer.
The rules related to the presentation hearing are established in the Child and Adolescent Statute (ECA). The moment is considered the ideal to verify the legality of the seizure and if there was respect to the fundamental rights of the adolescent, but many problems were verified by the research at this stage.
The first problem concerns the hearing date, whose marking may vary from 48 hours to 20 days after the time of seizure. While, in some places, the teenager is immediately presented to the judge, in others, he spends several days at the police station before that.
Another question is the duration time. In 38% of hearings, the duration was less than 10 minutes; at 33%, from 10 to 20 minutes; In 28%, more than 20 minutes. For researchers, less than 20 minutes (which corresponds to 71% of cases) is unfeasible time to comply with the full protection of the adolescent and the process.
The format of the audiences is also questioned: 80% occurred virtually. The sport has been allowed since 2020 because of the COVID-19 pandemic, but is currently not considered ideal by researchers. “We realize, throughout the observations, that the virtual hearing harms the guarantee of defense of the adolescent, especially in contact with the Public Defender’s Office and in understanding the audience by him and his family,” the study says . Connection and privacy loss problems of the adolescents were also observed.
Conclusions
The National Council of Justice research concludes that torture in the Youth Justice System is routine, but silenced due to lack of calculation and liability of the perpetrators, which indicates omission and connivance of justice.
“It is imperative that the Brazilian State, especially the judiciary, abandon inertia and adopt an active and incisive stance in the protection of the fundamental rights of adolescents to whom the practice of offenses is imputed,” says an excerpt from the study.
“Institutional neglect of this reality compromises not only the physical and psychological integrity of adolescents but also the constitutional mission of integral protection that should guide the performance of the Brazilian judiciary. Youth justice needs to be renovated so that torture is no longer tolerated and becomes inadmissible in all its forms, ”the researchers conclude.
