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The Right to a “Custody Hearing” under International Law

by Maria Laura Canineu
February 3, 2014

        A person who is arrested has a right to be brought promptly before a judge. This is a longstanding and fundamental principle of international law, crucial for ensuring that the person’s arrest, treatment, and any ongoing detention are lawful.
        Yet, until now, Brazil has not respected this right. Detainees often go months before seeing a judge. For instance, in São Paulo state, which houses 37 percent of Brazil’s total prison population, most detainees are not brought before a judge for at least three months. The risk of ill-treatment is often highest during the initial stages of detention, when police are questioning a suspect. The delay makes detainees more vulnerable to torture and other serious forms of mistreatment by abusive police officers.
        In 2012, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reported that it had received “repeated and consistent accounts of torture and ill-treatment” in São Paulo and other Brazilian states, “committed by, in particular, the military and civil police.” The torture had allegedly occurred in police custody or at the moment of arrest, on the street, inside private homes, or in hidden outdoor areas, and was described as “gratuitous violence, as a form of punishment, to extract confessions, and as a means of extortion.”
        In addition to violating the rights of detainees, these abusive practices make it more difficult for the police to establish the kind of public trust that is often crucial for effective crime control. These practices undermine legitimate efforts to promote public security and curb violent crime, and thus have a negative impact on Brazilian society as a whole.
        The right to be brought before a judge without unnecessary delay is enshrined in treaties long ago ratified by Brazil, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights. The United Nations Human Rights Committee, which is responsible for interpreting the ICCPR, has determined that the delay between the arrest of an accused and the time before he is brought before a judicial authority “should not exceed a few days,” even during states of emergency.
        Other countries in Latin America have incorporated this right into their domestic law. For instance, in Argentina, the federal Criminal Procedure Code requires that in cases of arrest without a judicial order, the detainee must be brought to a competent judicial authority within six hours.
        In contrast, Brazil’s criminal procedure code requires that when an adult is arrested in flagrante and held in police custody, only the police files of the case need to be presented to the judge within 24 hours, not the actual detainee. Judges evaluate the legality of the arrest and make the decision about whether to order continued detention or other precautionary measures based solely on the written documents provided by the police.
        The code establishes a maximum of 60 days for the first judicial hearing with the detainee, but does not explicitly say when this period begins. In practice, this often means that police in Brazil can keep people detained, with formal judicial authorization, for several months, without giving the detainee a chance to actually see a judge.
        According to the code, the only circumstance in which police need to bring a person before the judge immediately applies to cases of crimes not subject to bail in which arresting officer was not able to exhibit the arrest order to the person arrested at the time of arrest. Otherwise, the detainee may also not see a judge for several months.

                                         (www.hrw.org. Editado e adaptado)

Empirically Based Leadership

A significant area of interest within the US Army empirical literature on leadership is emotional intelligence (EI), which in recent years has been the focus of considerable attention in relationship to leadership efficacy. Emotional intelligence involves an awareness of one’s own emotions as well as the ability to control them, social awareness of others and their emotions, and the capacity to understand and manage relationship and social networks.

In understanding others’ emotions, an important contributing factor to the success of the more effective military officers is their ability to empathize with their subordinates. In discussing empathy, FM (Field Manual) 6-22 defines it as “the ability to see something from another person’s point of view, to identify with and enter into another person’s feelings and emotions”. Empathy is not typically a quality that most soldiers would readily identify as an essential characteristic to effective leadership or necessary to producing positive organizational outcomes, but it is an important quality for competent leadership, especially as it relates to EI.

President Obama Launches Gun-Violence Task Force

Five days after deadliest elementary school shooting in U.S. history, President Obama said his administration plans immediate action early next year on proposals to curb an “epidemic of gun violence”. At a morning news conference, Obama announced the formation of a task force to be headed by Vice President Joe Biden that will formulate a package of policy recommendations by January. “The fact that this problem is complex can no longer be an excuse for doing nothing”, Obama said. “The fact that we can’t prevent every act of violence doesn’t mean that we can’t steadily reduce the violence and prevent the very worst violence.” The president said he intends to push for implementation of the proposals “without delay”. “This is a team that has a very specific task to pull together real reforms right now”, he said.

While Obama did not offer specifics, he suggested the task force would examine an array of steps to curb gun violence and prevent mass shootings, including legislative measures, mental health resources and a “look more closely at a culture that all-too-often glorifies guns and violence”. “I will use all the powers of this office to help advance efforts aimed at preventing more tragedies like this”, Obama said.

Obama made similar pronouncements following at least four other mass shootings that marked his first term. But few policy changes were made. “This is not the first incident of horrific gun violence of your four years. Where have you been?”, asked ABC News’ Jake Tapper. “I’ve been president of the United States, dealing with the worst economic crisis since the Great Depression, an auto industry on the verge of collapse, two wars. I don’t think I’ve been on vacation”, Obama responded.