[legal-professionals] UN Special Rapporteur on the independence of judges and lawyers concerned about lack of access to justice in Brazil

UNITED NATIONS
Press Release
1 November 2004

The Special Rapporteur on the independence of judges and lawyers of the
United Nations Commission on Human Rights, Leandro Despouy, ended a
two-week visit to Brazil on 25 October. The following note from the
Special Rapporteur is from a news briefing in Brasilia held to provide the
local media with an overview of his mission:

The Special Rapporteur thanked the Government, especially the Special
Secretary of Human Rights, and all the authorities and sectors that
collaborated very openly in the realization of the visit. He extended his
gratitude to the non-governmental organizations (NGOs) and other
representatives of civil society for the valuable information provided and
the trust given to him.

The Special Rapporteur visited Brasilia, Sao Paulo, Porto Alegre, Recife
and Belem.  He also met representatives of organizations and institutions
of other States of the country, namely Ceará, Rio Grande do Norte,
Paraíba, Maranhão, Roraima and Rondonia.  He had over 60 meetings and
interacted with some 500 people: governmental authorities at the federal,
state and municipal levels; judges, prosecutors and lawyers, judicial and
bar associations; public defenders; and a high number of representatives
of civil society. He maintained constant contacts with the press
throughout the visit.

The Special Rapporteur made a number of preliminary observations:

1. Lack of access to justice. Most people do not have access to justice
for being socially or economically excluded. Vulnerable or discriminated
against groups are the most affected. He referred to children,
adolescents, women, indigenous people, homosexuals, transsexuals,
quilombolas, black people, sick people, and social movements like the
workers without land and the environmentalists.

2. The judicial system is extremely slow. The many guarantees foreseen by
the system, which provides for several appeals, coupled with the excessive
number of cases that get to the Federal Supreme Court, cause significant
delays and can turn the judicial system ineffective.

3. The situation is not consistent throughout Brazil. The quantity and
lengthy of proceedings is much bigger, for example, in Sao Paulo, where
there are some 13 millions ongoing cases and each judge has a workload of
8,000-10,000 cases. This problem is less exacerbated in Rio Grande do Sul,
where there is an advanced judicial system and a virtual process is being
experimented. In Pernambuco and Amazonas, the impact of violence on the
justice system is tangible. Judges, lawyers, prosecutors and defenders are
exposed to high risks of violence and threats, especially those involved
in the rural and environmental questions or in the fight against organized
crime. In many cities, the links between judges and the political and
economic elites affect the independence of the judiciary and explains the
high levels of impunity registered in these cities.

4. A major concern is the situation of children and adolescents. In the
North and North-East, most sexual crimes against children and adolescents
are not investigated and in some cases representatives of the judiciary
are involved in those crimes.

The Special Rapporteur expressed a few preliminary considerations on some
elements of the ongoing judicial reform, such as the binding opinion
(súmula vinculante) and the opinion restricting the appeal (súmula
impeditive de recurso); the federalization of the most serious human
rights violations; the establishment of the National Council of the
Judiciary and the National Council of the Public Prosecutor's Office; the
creation of specialized tribunals for the rural question;  the financial
and functional autonomy of public defenders; and the investigative powers
of prosecutors. He also mentioned some positive experiences he identified
along the visit, such as the Integrated Centres of Citizenship in Sao
Paulo; the public audits of the judiciary in Porto Alegre; and the Rights'
Desk in Belem.

The Special Rapporteur ended the press briefing by indicating some
preliminary recommendations:

A. The approval of the law establishing the financial and functional
autonomy of public defenders should be a priority. States that do not have
public defenders (Sao Paulo, Goiás and Santa Catarina) should proceed to
set up their system of public defenders.

B. The judicial proceedings should be reformed with a view to simplify the
system while preserving all guarantees.

C. International human rights law should be applied by judges, lawyers,
defenders and prosecutors in the judicial proceedings.

D. More specialised tribunals should be created in at least two areas:
crimes against children and adolescents; the rural question.

E. International cooperation among the different actors of the judiciary,
especially in the border areas, is essential to fight a trans-frontier
phenomenon like organized crime.

F. Positive experiences at the federal and state levels should be
collected and evaluated to study their feasibility in other areas of the
country. A national meeting could be called upon to this end.

The Special Rapporteur will present his findings, conclusions and
recommendations in a report to the sixty-first session of the Commission
on Human Rights in April 2005.