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The STF (Federal Supreme Court) minister, Edson Fachin, affirmed today, during a judicial trial, that intimate search is inadmissible and should be considered illegal, as it is a “degrading and inhuman” act.
According to the minister’s vote, evidence obtained through vexatious searches should be considered illegal. Fachin was the only one who voted in today’s virtual plenary session. The trial will continue tomorrow with the votes of the other ministers.
The intimate magazine is one in which the person who visits the prisoner is forced to be totally or partially naked, sometimes with an examination of the vagina or anus, to show that they are not bringing objects or drugs into the body. More than 80% of the visits are by women, the majority black, according to a survey conducted by public defenders and data from state governments obtained by human rights organizations.
According to Fachin, the demand for an intimate search indiscriminately can make visits to prisoners unfeasible. “The relatives are conceived as suspects only because of this link,” said the minister.
The STF began to judge on Wednesday an appeal by the MP-RS (Public Ministry of Rio Grande do Sul) against the decision of the TJ-RS (Court of Justice of Rio Grande do Sul), which acquitted the sister of the charges drug trafficking. of an inmate who tried to smuggle marijuana into a prison.
The drug was inside the visitor’s vagina and was found during an intimate search, and the Rio Grande do Sul court ruled that the evidence was illegal. The STF is today judging whether evidence obtained in intimate magazines should be considered illegal and therefore cannot be used as a basis for convictions. Fachin is the reporter on the case.
Other forms of magazine
For Fachin, it is not possible to “validate illegal evidence in the face of violation of constitutional principles” and that it will be up to “the States to exercise another form of control over the entry of drugs and prohibited objects into the prison system.”
According to the rapporteur of the case, “the intimate search is not compared with other forms of manual, mechanical or electronic investigation”. The magazine, said the speaker, can only be done on people and personal objects, as is done for example in the departure areas of airports and large events.
For the reporter of the case, the nudity, partial or total, of the visitors in intimate magazines should be prohibited and the “body cavities” of the visitors cannot be inspected.
MP says the safety principle has been violated
The Rio Grande do Sul Public Ministry appealed the judgment of the TJ-RS, alleging that the principle of public security was violated. The case reached the STF, which understood that the case has general repercussions, that is, it will have an effect in similar cases.
In today’s trial, the Rio Grande do Sul attorney general, Fabiano Dallazen, argued that declaring the evidence obtained in an intimate magazine illegal is contrary to the jurisprudence of the STF. “There are no absolute fundamental rights,” he said.
State cannot commit crimes it tries to prevent, says defender
For the public defender Domingos Barroso da Costa, who defended those accused of entering marijuana, the case that is being tried in the STF “reverberates with the claims of thousands of Brazilians humiliated when trying to visit friends and family prisoners.
According to him, the State cannot commit crimes more barbarous than those it seeks to prevent. According to Costa, intimate searches are allowed in Brazil by “tyrannical forces.” “It is a degrading punishment that transcends the person of the accused,” he said.
Lawyer compares intimate magazine with rape
Then, institutions registered as friends of the court (court friends). Through Ibccrim (Brazilian Institute of Criminal Sciences), lawyer Debora Nachmanowicz compared the intimate magazine with rape. “The absence of consent, the shame, the humiliation and the pain are the same,” he said.
The NGOs Conectas Human Rights, the ITTC (Instituto Terra, Trabalho e Cidadania), the IDDD (Institute for the Defense of the Right to Defense) and the Strategic Action Group of the Public Defender’s Office and the Public Defender’s Office of the Union also participated in the trial as amici curiae. (friends of the court) and defended the unconstitutionality of the practice.
Intimate search is prohibited or restricted by law in several Brazilian states. In states where the ban is in effect, the measure should be replaced by the use of a scanner or mechanical loader (made so that the person is not naked).
However, in practice, mothers, grandparents, wives and daughters of prisoners, including minors, continue to be unduly exposed.
For human rights organizations, the intimate magazine violates several Brazilian constitutional principles, such as the right to privacy, human dignity, no production the evidence against him and the principle of criminal law that the penalty does not go beyond the person of the convicted person.
The Inter-American Court of Human Rights considered the practice equivalent to torture and recommended its abolition throughout the continent.
The PGR defends the modulation of the prohibition of intimate magazines
The Deputy Attorney General of the Republic, Humberto Jacques de Medeiros, upheld the opinion issued in September by the Attorney General Augusto Aras for the intimate magazine to be declared unconstitutional as the norm to enter prison visits.
The PGR argued that the search only occurs in exceptional cases, such as when the scanner or other device does not work, but nudity and the use of mirrors during the inspection are prohibited. It was also suggested that one year should be allowed for states to adapt to manufacture only the mechanical or electronic charger.
“The security of the prison system does not justify humiliating acts, especially when they can be obtained by other less invasive means,” the PGR said in the ruling.
Three seizures per 10,000 visits
According to the lawyer Carolina Diniz, from Conectas, “women cannot be seen as suspects just because they exist.” The figures, he says, do not prove that women are used as mules to carry drugs and other objects into the bodies of prisoners.
In São Paulo, according to a survey by the Ombudsman’s Office, only 3 out of 10,000 intimate magazines (0.03%) resulted in the seizure of objects. Paraná and the Federal District presented similar data, according to a survey by Conectas.
Today (28), 40 religious institutions sent a letter to the STF in which they ask that the intimate visit be considered unconstitutional.
