The Lava Jato or Car Wash investigation

The right to habeas corpus and the limitations on pre-trial detention in

international and comparative law

Timothy Otty QC, Sir Jeffrey Jowell QC, Naina Patel

Blackstone Chambers, London

Executive Summary
A.

This advice seeks to outline the relevance of international and comparative

legal principle to preventative pre-trial detention, applications for habeas
corpus and adverse media coverage of detainees in the context of the Lava
Jato or Car Wash corruption investigation currently underway in Brazil.

B.

Fundamental international principle regards pre-trial detention as offensive to

the rule of law and endorses the right to trial within a reasonable time. This is
because pre-trial detention is a form of punishment, which should not
normally occur in advance of a fair trial.

C.

This principle is endorsed by constitutions and international treaties which:

(a) prohibit arbitrary detention and deprivation of liberty; (b) require a fair
trial within a reasonable time; and (c) presume that a person is innocent until

proven guilty. Those treaties include the International Covenant on Civil and
Political Rights (Article 9 of which protects the right to liberty and Article 14
the right to a fair trial) and the American Convention on Human Rights
(Articles 7 and 8 of which protect the right to liberty and a fair trial
respectively) and those constitutions include the Constitution of Brazil 1988
which, through Article 5, incorporates those treaty obligations (see
paragraphs 8 and 27-29).

D.

That is not to say that pre-trial detention should not be permitted if strictly
necessary in exceptional circumstances. But those circumstances must (a) be
strictly based on legitimate aims related to the administration of justice or the
prevention of crime or disorder and (b) be exercised in a manner that is
properly evidenced, referable to the individuals particular position,
proportionate and fair. These principles are reflected in the jurisprudence of
the UN Committee on Human Rights and the Inter-American Commission
and Court of Human Rights (see, for example, paragraphs 30-38 and 50), as
well the comparative jurisprudence on the ancient writ of habeas corpus and
the more modern right to bail (see paragraphs 10-26). We also draw on the
jurisprudence of the European Court of Human Rights, the value of which
stems in part from its propounding of common principles that must apply to a
variety of different legal systems, including the English common law system
and the French civil law system (see, for example, paragraphs 38, 54, 57, 64
and 74).

E.

If the allegations brought to our attention are well-founded then we are of the
view that serious issues relating to the use of pre-trial detention, the right to
silence and the presumption of innocence are raised in relation to individuals
who are the subject of detention in the Car Wash investigation. These include:

(a)

The improper use of an intent to signal the gravity of crimes under

investigation (see paragraph 39);

(b)

Reliance on generalised assertions as to a risk of criminal repetition as

justification for detention (see paragraphs 40-44);

(c)

Reference to plea bargains or other cooperation agreements as

justifications for detention (paragraphs 45-49);

(d)

Concerns regarding delays in the provision of habeas corpus relief,

partly as a result of multiple sequential detention decisions being taken
in respect of individual defendants. Such concerns run counter to the
obligation of expedition in any habeas process and on the overarching
obligation to ensure the accused is treated fairly (paragraphs 52-56);
and

(e)

Adverse and unregulated press coverage in relation to ongoing

investigations (see paragraphs 72-75).

F.

There would also, in these circumstances, be very real concerns that there had
been a failure to have adequate regard to the fundamental and historic
significance of the right to personal liberty, and to the expeditious and
effective nature of the remedy represented by the writ of habeas corpus. We are
also of the view that the same circumstances would indicate a failure to
respect Brazils international obligations as owed under, in particular, the
American Convention on Human Rights and the International Covenant on
Civil and Political Rights as well as obligations owed under what we would
anticipate to be a proper application of the Constitution of Brazil 1988.

G.

We can, of course, express no concluded views as to whether fundamental

rights have been breached in any individual cases and we note the recent
decision of Minister Zavascki in relation to one defendant offers some
reassurance in this regard (see paragraphs 66-71) but we have sought to set
out an accurate summary of the relevant international standards against
which all individual cases should fall to be measured.

A.

Introduction

1.

The authors of this advice are experts in international and comparative law
and have particular experience of international human rights law,
comparative constitutional law and rule of law issues more broadly. Copies
of their curriculum vitae are attached hereto as Annex 1.

2.

We have been requested to provide an advice addressing the following issues

from the perspective of international and comparative law:

(a)

The fundamental importance of the liberty interest in international and

comparative law and the essential guarantees required through the
ancient remedy reflected in the writ of habeas corpus;

(b)

The constraints placed on preventive pre-trial detention by principles

common to international and comparative law; and

(c)

The risks presented by adverse media coverage to the presumption of

innocence enjoyed by all those subject to criminal investigation and the
requirement to safeguard against such risks in international and
comparative law.

3.

The immediate context of this advice is the Lava Jato or Car Wash
corruption investigation currently underway in Brazil. The authors of this
report wish to emphasise that they do not purport to express any concluded
views as to the lawfulness of conduct in individual cases related to this
investigation, and they do not presume to comment definitively on the
correctness or otherwise of any individual court decisions. They have,
however, seen a range of press reporting in connection with the investigation
as well as a number of habeas corpus applications brought by detainees held in
the investigation and some recent judgments. They have also had the benefit
of discussions with a range of judges from all levels of the Brazilian court
system as well as senior lawyers during a visit to Brazil between 19th and 23rd
October 2015. If the reporting and the allegations made in the applications
are accurate then a number of serious concerns would be raised as regards
compliance with principles common to both international and comparative
law and, we would anticipate, a proper application of the Constitution of
Brazil 1988. Many of these concerns have most recently been echoed by Judge
Marco Aurelio Mello of the Supreme Federal Tribunal.1 The concerns include
the following:

(a)

Significant delays in the provision of habeas corpus relief, partly as a

result of multiple sequential detention decisions being taken in respect
of individual defendants;

A summary of the interview is available at http://politica.estadao.com.br/blogs/fausto-macedo/a-populacaoquer-visceras-quer-sangue-diz-marco-aurelio-sobre-a-lava-jato/

(b)

The problematic inter-relationship between plea bargains or, more

accurately described, the Brazilian practices of delao premiada and
colaborao premiada and other justifications advanced for preventive
detention and the strict limits on such justifications imposed by
international law; and

(c)

4.

Adverse media coverage impacting on the presumption of innocence.

Each of these matters is addressed more fully below but we summarise our
views as follows:

(a)

Delays in the substantive resolution of a habeas corpus challenge caused

by sequential detention decisions can breach international standards,
and be inconsistent both with the imperative nature of the remedy as a
means of testing the lawfulness of Executive conduct as it has existed
for centuries, and with present day comparative law norms;

(b)

The pursuit of plea bargains or other co-operation agreements with a

detainee or a desire to obtain evidence from a detainee cannot properly
be invoked as a justification for detention. If concerns that pre-trial
detention is being used as a means to compel a detainee to become a

state witness are well-founded such an approach would be inconsistent

with international and comparative law norms, and would be likely to
place Brazil in breach of her obligations in international law;

(c)

International law obligations would also be breached in the event that

it were found that pre-trial detention was occurring as a means of
signalling the gravity of the crimes under investigation or because of
some generalised fear of offences being committed in the future;

(d)

One particular aspect of the rationale requiring a narrow approach to

the justifications which may properly be advanced for pre-trial
detention is the risk that any form of pre-trial detention carries for the
presumption of innocence, a core component of all international
human rights treaties and modern domestic democratic constitutions.
That right to the presumption of innocence can also be substantially
undermined through adverse and unregulated press coverage, or
through inappropriate comments from public officials in relation to
ongoing investigations. Enjoyment of this fundamental right may also
be placed in jeopardy if the pursuit of plea bargain or judicial cooperation agreements is being used as a key criterion in determining
pre-trial detention or if proof of past allegations is being assumed as a
basis for suggesting fear of future offending.
8

5.

In preparing this opinion we have had close regard to the relatively recent
report of the Inter-American Commission of Human Rights (the IACHR):
Report on the Use of Pre-trial detention in the Americas, 30 December 2013 (the
IACHR Report, attached hereto at Annex 2). We agree with the analysis of
international and constitutional principles set out in that Report, and with the
core conclusion of the Report that excessive use of pre-trial detention of the
kind which we understand has been complained of in the present context
breaches such principles and threatens the rule of law. Pre-trial detention
should only be used as a last resort where genuinely necessary to prevent
interference with the prosecution / investigation of a crime (through
destruction of evidence and the like) or where necessary to ensure an
accuseds attendance at trial.

6.

We note that other commentators have commented on the high proportion of

the Brazilian prison population that are held in pre-trial detention. In 2007,
the UN High Commissioner for Human Rights noted that the widespread use
of pre-trial detention called for special attention.2 The UN Human Rights
Committee has also expressed concern about long periods of pre-trial
detention.3 According to the International Bar Association, the proportion of
the prison population held in pre-trial detention was as high as 44% in

UN Office of the High Commissioner for Human Rights Press Release, 5 December 2007.
Concluding Observations of the Committee Against Torture, Official Records of the General Assembly, FiftySixth Session, Supplement No. 44 (A/56/44), para 119(c).
3

September 2009.4 In our view the IACHR summarised the matter well when
it stated that the excessive use of pre-trial detention runs contrary to the very
essence of democratic rule of law and that the terms of Article 7.5 of the American
Convention on Human Rights establish as the sole legitimate grounds for pre-trial
detention, the risk of the accused attempting to escape justice or hindering the judicial
investigation . In addition, pursuant to the right to the presumption of innocence
and the exceptionality criterion, even when a possible legitimate justification exists,
the use of pre-trial detention must be considered and carried out in accordance with
the criteria of necessity, proportionality and reasonableness.5

7.

We also agree with the recommendations made by a series of UN mechanisms

to States in the region (including Brazil) in this context. These are accurately
summarised by the IACHR as being to the following effect:

[States should] use pre-trial detention only when there are no other means to
ensure the appearance of the accused at trial or to prevent tampering with
evidence; interpret restrictively the circumstances in which pre-trial detention
can legally be ordered; review the laws and judicial practices to ensure that the
measure is used only in exceptional cases and for the shortest time possible;
implement other precautionary measures, such as bail, house arrests, or
electronic bracelets .. ensure that decisions ordering pre-trial detention are
4

International Bar Association (February 2010), One in Five: The Crisis in Brazils Prisons and Criminal Justice
System, p.7.
5 IACHR Report at p. 45, para. 106 and p. 61, para. 144.

10

taken after a substantive analysis of the case and not merely a formal review;
ensure that the conditions in which pre-trial detainees are held are in line with
international standards ..

8.

On the basis of allegations we have seen and if these are correct (as to which
we can presently express no final view) there would be (to put the matter at
its lowest) very real concerns that some or all of these UN mechanism
recommendations have been breached. It is perhaps worth emphasising the
force of the international treaty commitments set out in the International
Covenant on Civil and Political Rights (the ICCPR) and the American
Convention on Human Rights (the ACHR) which both have supra-legal
status in Brazilian law as a result of their ratification and incorporation in the
context of Article 5 of the Brazilian Constitution.6

Article 5 of the Brazilian Constitution provides as follows:

Paragraph 1. The provisions defining fundamental rights and guarantees are immediately applicable.
Paragraph 2. T he rights and guarantees expressed in this Constitution do not exclude others deriving
from the regime and from the principles adopted by it, or from the international treaties in which the
Federative Republic of Brazil is a party.
Paragraph 3. I nternational human rights treaties and conventions which are approved in each House
of the National Congress, in two rounds of voting, by three fifths of the votes of the respective members
shall be equivalent to constitutional amendments.
Some academics argue that paragraphs 1 and 2 render Brazil a monist country in respect of human
rights treaties such as the ICCPR and ACHR as mere ratification would make them immediately
applicable whereas others point to paragraph 3, introduced via a Constitutional Amendment of
2004/5, as an indication that such treaties must follow the same legislative procedure as
constitutional amendments to have constitutional status. The ICCPR and ACHR were both
incorporated before 2004/5 and therefore did not follow this procedure but as a result they have at
least supra-legal if not constitutional status given that the norm at that time was automatic
incorporation flowing from paragraphs 1 and 2.
6

11

9.

The significance of these commitments is underscored further by the recent

commitment of Brazil, together with other UN Member States, to the Global
Goals, Goal 16 of which is to promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and build effective,
accountable and inclusive institutions at all levels.7 This commitment includes
commitments to target 16.3 to promote the rule of law at the national and
international levels and ensure equal access to justice for all as well as target 16.5
to substantially reduce corruption and bribery in all their forms. This makes
clear the importance of anti-corruption investigations being conducted
compliantly with the rule of law; after all, if the ultimate goal of such
investigations is to improve the rule of law within society, to achieve that
objective only by thwarting the rule of law would be to undermine that goal.

See http://www.globalgoals.org/global-goals/peace-and-justice/

12

B.

The fundamental importance of the liberty interest and the essential

guarantees required through the ancient remedy reflected in the writ of
habeas corpus

10.

The fundamental importance of the right to personal liberty needs little

elaboration but the significance, as a matter of law and substance, of the right
has been well expressed in one of the leading academic textbooks to survey
comparative law in the area. In The Most Fundamental Legal Right: Habeas
Corpus in the Commonwealth (1st ed., OUP, 2000), Clarke and McCoy have put
the matter in these terms:

The protection of personal security is perhaps the most important human

right. If someone is in detention his or her ability to exercise all other human
rights is either severely restricted or virtually non-existent.

11.

Consistent with this high status of the liberty interest, the origins of the writ
of habeas corpus in England, and so more broadly the writ of habeas corpus as
now reflected in rights recognised around the world, may be found in Magna
Carta as long ago as 1215. Chapter 1 of Magna Carta states that all the
freedoms set out therein were given to all the free-men of our realm, for us and
our Heirs for ever, and Chapter 29 provides that no Freeman shall be taken, or
imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free

13

Customs, or be outlawed or exiled, or any other wise destroyed; nor will We not pass
upon him nor condemn him but by lawful Judgment of his Peers, or by the Law of the
Land.8 A Divisional Court of the Queens Bench Division in London has in
recent times endorsed the following statement as accurately reflecting its
present day significance in English law:

[Magna Carta] becomes and rightly becomes a sacred text, the nearest
approach to an irrepealable fundamental statute that England has ever
had.For in brief it means this, that the king is and shall be below the law.9

12.

To similar effect is an observation made by Lord Bingham of Cornhill one of

the most celebrated of English Judges of the last fifty years. In Re S-C (Mental
Patient: Habeas Corpus) [1996] QC 599 he said the following at 603 (underlining
added):

No adult citizen of the United Kingdom is liable to be confined in any

institution against his will, save by the authority of the law. That is a
fundamental constitutional principle traceable back to Ch 29 of Magna Carta
1297 (25 Edw 1 c 1) and before that to Ch 39 of Magna Carta (1215). There
are, of course, situations in which the law sanctions detention. The most
8Magna

Carta arts. 1 & 29, 1 Stat. at Large (Runnington rev. to Ruffhead ed., London, Charles Eyre et
al. 1786).
9 Frederick Pollock & Frederic W. Maitland, The History of English Law (2d ed., Cambridge, 1923) at
173, cited and quoted with approval by Lord Justice Laws in Regina (Bancoult) v. Secretary of State for
Foreign and Commonwealth Affairs, [2001] Q.B. 1067, 1095 (Q.B.D. Admin. Ct.).

14

obvious is in the case of those suspected or convicted of crime. Powers then

exist to arrest and detain. But the conditions in which those powers may be
exercised are very closely prescribed by statute and the common law.

13.

So too Baroness Hale, Deputy President of the UK Supreme Court, has this
year in the year of the 800th anniversary of Magna Carta, described the
protection of liberties of the individual bestowed by Chapter 29 as one of the
three great pillars of modern constitutionalism, the others being the consent of
the people to taxation and other burdens and the rule of law.10

14.

Because of the fundamental and historic nature of the protection of personal

liberty, and Brazils own adoption of the language and procedures of habeas
corpus,11 we set out a brief history of the development of the right, and the
means of its protection through habeas corpus below. As will be apparent from
some of the passages emphasised below and of potential direct relevance to
the present context the expeditious or speedy nature of the remedy which
habeas corpus represents has always been at its core.

10

Magna Carta: Did She Die in Vain? Speech by Baroness Hale, Grays Inn, 19 October 2015.
We have noted in this regard Articles 647 to 667 of the Code of Criminal Procedure and, in
particular, the emphasis on expedition evident from Articles 649, Article 656 and Article 660 of the
Code. We have also had regard to Article 312 of the Code and its provision that preventive arrest may
be ordered to maintain public order, economic order, for the convenience of a criminal investigation, or to
secure the enforceability of the criminal law, whenever there is evidence of a crime and sufficient indication of
who committed it.
11

15

15.

It appears that it was in the sixteenth century that the writ of habeas corpus first
began to be used as a means of testing the validity of executive committals. As
Sharpe and Farbey say in the leading textbook on the subject, The Law of
Habeas Corpus (3rd ed., OUP, 2011) at 6: By the time of Elizabeth [I], it was becoming clear that the claim to a power to commit for reasons of state could be tested
on habeas corpus. There are cases as early as 1567 in which habeas corpus was used
by persons detained by order of the Privy Council to obtain their release on bail.

16.

In 1640 the English Parliament then made its first express attempt to curtail
the power of executive detention. Section VIII of the Habeas Corpus Act of
1640, 16 Car. 1, c. 10, provided that any Person imprisoned by order of the
King or his Council should have habeas corpus and be brought before the court
without delay with the cause of imprisonment shown. The Act was passed
against the background of the first case of major constitutional importance to
address the question of habeas corpus, Darnels Case, 3 State Trials 1 (K.B.
1627).12

17.

In 1679 a second Habeas Corpus Act, 31 Car. 2, c. 2 was passed. The

background to the Act lay in practices which had grown up designed to

In Darnels Case, the King, Charles I, had imprisoned five Knights as a result of their refusal to
contribute to the repayment of a forced loan he had taken out. The Knights sought their freedom by
issue of writs of habeas corpus and, in response, the King simply asserted (at 33) that they had been
detained per speciale mandatum domini regis. The issue in the case was whether the Court was
required to assume that there was substantive legal justification for the imprisonment or whether the
failure to disclose specific grounds entitled the prisoners to be bailed pending trial. The Court ruled in
favour of the King and refused to bail the Knights. The Habeas Corpus Act of 1640 in effect reversed
that decision.
12

16

circumvent the protection afforded by the writ. Prisoners were moved from
gaol to gaol so that it was impossible to serve the proper gaoler with the writ
and some prisoners were removed overseas so giving rise to practical
difficulties in terms of communication (between the detained person and
those acting on his behalf), service (on the relevant gaoler) and enforcement of
the writ (by production of the detained person) if the writ was issued.13 The
terms of the Act were designed to counter these stratagems. They also made it
clear that the territorial scope of the protection afforded by habeas corpus was
intended to be broad and removed any doubt that the Courts jurisdiction to
issue the writ extended to detentions overseas. The preamble to the Act
described it as An Act for the better securing the Liberty of the Subject, and for
Prevention of Imprisonment beyond the Seas. Section XI expressly declared that
the writ would run overseas by declaring that it may be directed and run to
Jersey and Guernsey.14 Section XII made it an offence to remove detained
persons to Scotland,15 Ireland, Jersey, Guernsey, Tangier or into Parts, Garrisons,

Twelve years earlier in 1667 one of the charges made against Edward Hyde, the First Earl of
Clarendon and Lord Chancellor, on his impeachment was that he had attempted to preclude access to
the writ of habeas corpus by sending persons to be imprisoned against law in remote islands, garrisons, and
other places, thereby to prevent them from the benefit of the law, (see Proceedings in Parliament against
Edward Earl of Clarendon, Lord High Chancellor of England, for High Treason, and other High
Crimes and Misdemeanours: 15 and 19 Charles II. A.D. 1663-1667 (1668) 6 State Trials 291 at 330,
396).
14 This was consistent with the fact that the Courts had already, or would very shortly, recognise that
the writ could run to the Channel Islands, Ireland and Calais: Rex v Salmon (KB 1669) 2 Keble 450 84
Eng Rep (re: the Channel Islands); Anonymous (KB 1681) 1 Ventris 357, 86 Eng Rep 230 (re: Ireland and
Calais).
15 The English High Court had never had jurisdiction to send the writ to Scotland because of the
formal distinction between the English and Scottish Crowns and the writs status as a prerogative
remedy of the English Crown. Holdsworths History of English Laws (Vol. IX 3ed. 1944) described the
practices which the Act sought to counter as including (at 116) in the last resort [removal of the prisoner]
out of the jurisdiction of the court. This may be taken to be a reference to removals to Scotland and
other such places and not as suggesting any wider limitation to the jurisdiction of the Court. Thus
Holdsworth states (at 124) that it was a well-established principle that though the writ could not issue into
the foreign dominions of a prince who succeeded to the throne of England, and therefore not into Scotland or
13

17

Islands or Places beyond the Seas which are or at any time hereafter shall be within or
without the Dominions of his Majesty. Section XII also went on to state that any
such imprisonments would be illegal and would give rise to an action for
false imprisonment.

18.

The Habeas Corpus Act of 1816, 56 Geo. 3, c. 100 was the next significant
development. It empowered the court to inquire into the truth of facts averred
in the return to the writ and, in cases of doubt as to their accuracy, to grant
the detained person bail16 and specified that non-obedience to the writ of
habeas corpus was a contempt of court.17

19.

Over the last four centuries English judges and lawyers have repeatedly
emphasized the importance of the writ of habeas corpus and its fundamental
purpose namely to provide a speedy and effective means to test the

Hanover, it could issue into any other part of the Kings dominions. Holdsworth summarises the effect of
the 1679 Act (at 118) as having made the writ of Habeas Corpus ad subjiciendum the most effective weapon
yet devised for the protection of the liberty of the subject and describes the success of the Act in effecting
its object as being illustrated by the desire of James II to get it repealed. He notes (at fn. 10) that in
October 1685 Barillon wrote to Louis XIV that James designed to obtain from the Parliament a repeal of
the Test and Habeas Corpus Acts, the first of which is the destruction of the Catholic Religion,and the other of
the royal authority.
16 Sections 3-4.
17 Section 2. Another Act passed in 1816 also owed its origins to the law of habeas corpus. It was
entitled An Act for the more effectually detaining in Custody Napoleon Buonapart, 56 Geo. 3, c. 22 (1816)
(Eng.), and was passed specifically to render lawful the continued detention of Bonaparte
notwithstanding the end of the Napoleonic wars by deeming him to be a Prisoner of War and so to
have no right to habeas corpus. See 1 Arnold Duncan, Lord McNair, International Law Opinions 10407
(1956), explaining the origins of the Act and how Admiral Lord Keith (the commander in chief of the
English Channel fleet) had been chased all day by a lawyer with a Habeas Corpus!. It is important to
note that it was not open to the Executive simply to declare Bonaparte to be a Prisoner of War and the
intervention of Parliament by specific legislative enactment was required. The 1862 Habeas Corpus
Act is also of significance and is referred to below.

18

lawfulness of any detention and thus to protect the liberty of the individual and the jurisdiction of the High Court in England to grant the writ has been
consistently recognized as extending to any part of the Kings dominions.
Blackstone described the writ thus (underlining added):

[T]he great and efficacious writ in all manner of illegal confinement, is that
of habeas corpus ad subjiciendum;This is a high prerogative writ,running
into all parts of the kings dominions: for the king is at all times intitled to
have an account, why the liberty of any of his subjects is restrained, wherever
that restraint may be inflicted.18

20.

The breadth of the remedy was re-affirmed in the House of Lords by the Earl
of Birkenhead in Secretary of State for Home Affairs v. OBrien, [1923] A.C. 603
(appeal taken from Eng.), when he said the following at 609 (underlining
added):

We are dealing with a writ antecedent to statute, and throwing its root deep
into the genius of our common law. The writ with which we are concerned today was more fully known as habeas corpus ad subjiciendumIt is perhaps
the most important writ known to the constitutional law of England, affording
as it does a swift and imperative remedy in all cases of illegal restraint or
confinement. It is of immemorial antiquity, an instance of its use occurring in
18

William Blackstone, 3 Commentaries at 131.

19

the thirty-third year of Edward I. It has through the ages been jealously
maintained by Courts of Law as a check upon the illegal usurpation of power
by the Executive at the cost of the liege.

21.

In the same case, Lord Shaw, citing Cox v Hakes (1890) 15 App. Cas. 506,
stressed the importance of urgency in habeas corpus (underlining added):

My Lords, I think it right further to observe that urgency is written all over
the face of habeas corpus proceedings.

Preventing delay, immediate

determination of the right to the applicants freedom and the avoidance of the
delay and uncertainty of ordinary litigation - these expressions are significant
of urgency as an essential quality to the proceedings.

22.

The House of Lords emphasis on the swiftness of the remedy of habeas corpus
and its fundamental constitutional importance as applied and operated in the
United Kingdom is also reflected in Sharpe (supra) in the following particular
passages of the text:

Habeas corpus provides significant benefits to the applicant not available

from other remedies. First, by tradition, an application for habeas corpus is
given priority on court lists and the remedy is immediately available. Secondly

20

once the applicant raises a legitimate issue as to the legality of detention, the
onus shifts to the respondent to justify its lawfulness (p. 54, underlining
added).

It is habeas corpus that has made axiomatic, and that continues to promote,
the principle that cases raising issues of liberty ought to be speedily decided
. (p. 63 fn. 283, underlining added),

The urgent application procedure in the Administrative Court enables a

judge to consider the papers within hours (if necessary) of the applicant
lodging a claim . Habeas corpus enables anyone in detention to have a case
brought speedily to court and to seek release as of right The liberty of the
individual, and the principle that governments must be able to justify each
and every detention of an individual are core elements of constitutional
democracies (p. 63, underlining added).

If circumstances require, an application for habeas corpus may be made to a

judge at any time of the day or night In court, habeas corpus matters enjoy
precedence over nearly all other business. This is designed to ensure the speedy
determination of the question (p. 233, underlining added).

21

23.

Clarke and McCoys The Most Fundamental Legal Right: Habeas corpus in the
Commonwealth (supra) also provides a useful comparative survey of relevant
time periods applicable to the judicial review of detentions in the
Commonwealth (pp. 233, 235-236):

The usual rule in ordinary criminal cases is that the detainee must be
brought promptly before a judicial officer. The specified time for compliance is
24 hours in Kenya, Samoa19, Nauru20, Bangladesh21, Ghana22 and Lesotho23.
The relevant period is 48 hours in Antigua, Barbuda24 and Malta25. It is 72
hours in Belize26, Dominica27, and Saint Christopher and Nevis28. This right
is underpinned by constitutional imperatives, so that any technical approach
to the question of the venue of bail hearings is to be eschewed. Unexplained
and unjustified detentions for a longer period are likely to be breaches of
criminal procedure statutes and the Constitution and will result in release.
Thus the State cannot claim that because the case is serious the applicant
could be detained for long periods to facilitate the police investigation.29

Constitution of Samoa 1960, Art. 6(4).

Constitution of Nauru 1968, Art. 5(5).
21 Constitution of Peoples Republic of Bangladesh 1972, Art. 33(3).
22 Constitution of the Republic of Ghana 1979, Art. 21(3).
23 Constitution of Lesotho 1966, Art. 6(2).
24 Constitution of Antigua and Barbuda 1981, Art. 5(5).
25 Constitution of the Republic of Malta, Art. 35(2).
26 Constitution of Belize 1981, Art. 5(2).
27 Constitution of the Commonwealth of Dominica 1978, Art. 3(3).
28 Constitution of St Christopher and Nevis, Art. 5(3).
29 Republic v Sudi Adaka Sulaimana [1996] 1 CHRD 106 (Malawi HC).
19
20

22

24.

The same text rightly emphasises the fundamental importance of the right to
an effective legal remedy to review detention in the following terms:

The fundamentality of this right has been commended by the United Nations
Centre for Human Rights30 and endorsed by the European legal system. This
right as found in national instruments is normally a mandatory and
enforceable right that cannot, in the case of Constitutional provisions be
overridden by special legislation. While the remedy exists at common law, in
some States it is specifically prescribed in the Constitution or an equivalent
remedy is provided. . Partial reinforcement of this right lies in the
imperative that the court when seized of the matter shall deal with it
forthwith, though this does not necessarily mean disposed of on the same day
as the application is made or heard; that will depend on the evidence, the issues
and their complexity.31

25.

As illustrated above a critical component of the right to habeas corpus, whether

reflected in statute, common law or constitutional instrument is, therefore, the

United Nations Centre for Human Rights, Crime Prevention and Criminal Justice Branch,
Professional Training Series No. 3, Human Rights and Pre-Trial detention (New York and Geneva,
1994) at pp. 9, 40-41 referring to the right of review in the International Covenant on Civil and
Political Rights 1966 (Article 9(4)), Universal Declaration of Human Rights 1949 Articles 3 and 9,
African Charter on Human and Peoples Rights 1981 Article 6, American Convention on Human
Rights 1969 Article 7, European Convention on Human Rights and Fundamental Freedoms 1950,
Article 5(1).
31 See e.g. Constitution of Ireland Art. 40.4.2; State (Whelan) v Governor of Mountjoy Prison [1983] ILRM
52, 55.
30

23

speedy nature of the remedy it provides. As to the substance of the review

Sharpe provides the following useful summary:

The form of review available on habeas corpus may be described as follows.

The writ is directed to the gaoler or the person having custody or control of the
applicant. It requires that person to return to the court, on the day specified,
the body of the applicant and the cause of his detention. The process focuses
upon the cause returned. If the return discloses a lawful cause, the prisoner is
remanded; if the cause returned is insufficient or unlawful, the prisoner is
released.32

26.

Aside from expedition, one other important matter reflected in this summary,
and already touched upon above, is the proper allocation of the burden of
proof. There is a long line of English authority consistent with international
and comparative law - emphasising that it is a fundamental doctrine of English
law that it is for the executive, once challenged, to satisfy a court that it is entitled to
deprive of his liberty an individual within the courts jurisdiction.33 This is
important because it underscores the fact that, because of the primacy of the
liberty interest, if there is a doubt as to whether the Executive has identified a
lawful basis for detention, then it is the detainee who is to have the benefit of
that doubt and release will be required.

Supra p. 19.
See Khawaja v Secretary of State for the Home Department [1984] AC 75 per Lord Scarman and Lord
Bridge.
32
33

24

C.

Constraints placed on preventive detention by principles common to

international and comparative law

27.

So far as international and regional law norms are concerned it is notable that
as recently as December 2013 the IACHR published the IACHR Report, a
comprehensive document entitled Report on the Use of Pre-trial detention in the
Americas

which

can

be

found

at

http://www.oas.org/en/iachr/pdl/reports/pdfs/Report-PD-2013-en.pdf. A
copy is attached hereto as Annex 2. We agree with the thorough legal analysis
of relevant international standards set out in that report and return to it in
some detail below. By way of introduction, however, it is important to
emphasise that Brazil is a signatory both to the ICCPR and the ACHR, and to
highlight some of the core conclusions reached by the IACHR. We
accordingly address both matters first.

(i)

Brazils international obligations

28.

So far as United Nations treaty obligations are concerned Brazil ratified the
ICCPR in 1992 and the first and second Optional Protocols thereto in 2009 so
accepting the right of individual petition to the United Nations Human Rights
Committee (the UNHRC). She also ratified the United Nations Convention
against Torture and Other Cruel Inhuman and Degrading Treatment (the
25

UNCAT) in 1989. At the regional level Brazil ratified and acceded to the
ACHR in 1992, and is subject to the jurisdiction of both the IACHR and the
Inter-American Court of Human Rights (the IACtHR).

29.

The most material provisions of the ICCPR and the ACHR so far as the
present context is concerned are the following:

(a)

From the ICCPR (underlining added):

Article 9
1.

Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in accordance with such
procedure as are established by law.

2.

Anyone who is arrested shall be informed, at the time of arrest, of the

reasons for his arrest and shall be promptly informed of any charges
against him.

3.

Anyone arrested or detained on a criminal charge shall be brought

promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or
to release. It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to guarantees
26

to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgement.
4.

Anyone who is deprived of his liberty by arrest or detention shall be

entitled to take proceedings before a court, in order that that court may
decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.

5.

Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.

Article 14
1.

All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all
or part of a trial for reasons of morals, public order (ordre public) or
national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the

27

proceedings concern matrimonial disputes or the guardianship of

children.
2.

Everyone charged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to law.

3.

In the determination of any criminal charge against him, everyone

shall be entitled to the following minimum guarantees, in full equality:
(a)

To be informed promptly and in detail in a language which he

understands of the nature and cause of the charge against him;

(b)

To have adequate time and facilities for the preparation of his

defence and to communicate with counsel of his own choosing;

(c)

To be tried without undue delay;

(d)

To be tried in his presence, and to defend himself in person or

through legal assistance of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such
case if he does not have sufficient means to pay for it;

(e)

To examine, or have examined, the witnesses against him and

to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;

(f)

To have the free assistance of an interpreter if he cannot

understand or speak the language used in court;
28

(g)

Not to be compelled to testify against himself or to confess

guilt.

4.

In the case of juvenile persons, the procedure shall be such as will take
account of their age and the desirability of promoting their
rehabilitation.

5.

Everyone convicted of a crime shall have the right to his conviction and
sentence being reviewed by a higher tribunal according to law.

6.

When a person has by a final decision been convicted of a criminal

offence and when subsequently his conviction has been reversed or he
has been pardoned on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction
shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable
to him.

7.

No one shall be liable to be tried or punished again for an offence for

which he has already been finally convicted or acquitted in accordance
with the law and penal procedure of each country.

(b)

From the ACHR (underlining added):

Article 7. Right to Personal Liberty
1.

Every person has the right to personal liberty and security.

29

2.

No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution of
the State Party concerned or by a law established pursuant thereto.

3.

No one shall be subject to arbitrary arrest or imprisonment.

4.

Anyone who is detained shall be informed of the reasons for his

detention and shall be promptly notified of the charge or charges
against him.

5.

Any person detained shall be brought promptly before a judge or other

officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may be
subject to guarantees to assure his appearance for trial.

6.

Anyone who is deprived of his liberty shall be entitled to recourse to a

competent court, in order that the court may decide without delay on
the lawfulness of his arrest or detention and order his release if the
arrest or detention is unlawful. In States Parties whose laws provide
that anyone who believes himself to be threatened with deprivation of
his liberty is entitled to recourse to a competent court in order that it
may decide on the lawfulness of such threat, this remedy may not be
restricted or abolished. The interested party or another person in his
behalf is entitled to seek these remedies.

30

7.

No one shall be detained for debt. This principle shall not limit the
orders of a competent judicial authority issued for nonfulfillment of
duties of support.

Article 8. Right to a Fair Trial

1.

Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal, or
any other nature.

2.

Every person accused of a criminal offense has the right to be

presumed innocent so long as his guilt has not been proven according
to law. During the proceedings, every person is entitled, with full
equality, to the following minimum guarantees:
a.

the right of the accused to be assisted without charge by a

translator or interpreter, if he does not understand or does not
speak the language of the tribunal or court;

b.

prior notification in detail to the accused of the charges against

him;

c.

adequate time and means for the preparation of his defense;

31

d.

the right of the accused to defend himself personally or to be

assisted by legal counsel of his own choosing, and to
communicate freely and privately with his counsel;

e.

the inalienable right to be assisted by counsel provided by the

state, paid or not as the domestic law provides, if the accused
does not defend himself personally or engage his own counsel
within the time period established by law;

f.

the right of the defense to examine witnesses present in the

court and to obtain the appearance, as witnesses, of experts or
other persons who may throw light on the facts;

g.

the right not to be compelled to be a witness against himself or

to plead guilty; and

h.
3.

the right to appeal the judgment to a higher court.

A confession of guilt by the accused shall be valid only if it is made

without coercion of any kind.

4.

An accused person acquitted by a non-appealable judgment shall not

be subjected to a new trial for the same cause.

5.

Criminal proceedings shall be public, except insofar as may be

necessary to protect the interests of justice.

32

(ii)

Core conclusions of IACHR

30.

We set out below some of the core conclusions and key passages from the
IACHR Report before turning to the specific, and limited, grounds upon
which pre-trial detention of the kind which has given rise to this advice can
be justified:

(a)

First the IACHR has identified the scale of the problem in this area
both in the Americas generally, and in Brazil specifically, stating:

The excessive use of pre-trial detention in the Americas has been

acknowledged by other bodies of the Organization of American States
(OAS) [it has been] estimated that in the region more than 40% of
the prison population is on pre-trial detention (p. 2, paragraph 5).

(b)

Secondly the IACHR has, in our view rightly, identified the serious
adverse implications of excessive pre-trial detention for compliance
with international obligations and the very real issues of principle it
gives rise to, making the following findings:

the [IACHR] considers that the excessive use of pre-trial detention

runs contrary to the very essence of the democratic rule of law, and

33

that implementing this measure as a form of expeditious justice that

results in a kind of anticipated sentence is flagrantly contrary to the
provisions of the American Convention and Declaration and the
principles from which the Charter of the Organization of American
States has drawn inspiration (p. 3, paragraph 6).

Using pre-trial detention other than as an exception of last resort

further exacerbates other existing problems in the region, such as high
rates of prison overcrowding. This in turn triggers a situation in
which the fundamental rights of inmates, such as the right to humane
treatment are violated (p. 4, paragraph 9).

Additionally, holding a person in pre-trial detention for a prolonged

period can result in a situation in which judges are much more
inclined to convict in order to uphold, to a certain extent, their earlier
decision to detain the accused over the course of the trial. In this sense,
an eventual acquittal could be equivalent to an admission that an
innocent person was incarcerated for an extended period of time.
Considering all this, the protracted detention of an individual without
him or her being brought to trial constitutes to a certain extent, a
presumption of guilt (p. 4, paragraph 12).

(c)

Thirdly, the IACHR has drawn specific attention to problems

concerning Brazil in this area both as a result of information provided
34

to the IACHR by Brazil itself34 as well as as a result of the findings of

UN treaty bodies. In particular it noted the conclusions of the UN
Working Group on Arbitrary Detention in March 2013 that Brazil had a
prison population of 550,000 (one of the highest in the world and
second only to the United States in the region) with approximately
217,000 inmates being held pending trial35 and that in 2005 the UN
Human Rights Committee had expressed concern at the excessive and
prolonged use of pre-trial detention in Brazil.36

31.

Against this background the IACHR has accurately summarised the overall
position of the UN treaty bodies in the following terms:

UN mechanisms have also regularly issued the following recommendations

to the regions States: use pre-trial detention only when there are no other
means to ensure the appearance of the accused at trial or to prevent tampering
with evidence; interpret restrictively the circumstances in which pre-trial
detention can legally be ordered; review the laws and judicial practices to
ensure that the measure is used only in exceptional cases and for the shortest
time possible; implement other precautionary measures, such as bail, house
arrests, or electronic bracelets, review laws restricting judges powers to order
The IACHR methodology is explained at para. 33 of the Report and as there indicated Brazil was
one of 16 OAS Member States to respond substantively to the IACHR questionnaire underpinning the
factual content of the Report.
35 See p. 17, para. 33 and p. 26, para. 59 of the IACHR Report.
36 See p. 18, para. 49 of the IACHR Report.
34

35

measures other than pre-trial detention; ensure that decisions ordering pretrial detention are taken after a substantive analysis of the case and not merely
a formal review; ensure that the conditions in which pre-trial detainees are
held are in line with international standards; ensure that detainees enjoy the
possibility to prepare their defence at trial, as well as the necessary conditions
to do so; and strengthen the operational capacities of the authorities
responsible for criminal investigations.37

(iii)

Relevant international standards

32.

The relevant international standards governing the use of pre-trial detention

and the availability of alternative measures falling short of detention is an
area which has been comprehensively set out in the IACHR Report at
paragraphs 131 to 243. As the Report is annexed to this advice those passages
will not be repeated here. Instead the standards of particular potential
relevance to the present context are summarised below.

The presumption of innocence

33.

We agree with the IACHR that this is perhaps the most basic of all the judicial
guarantees that pertain to criminal justice.38 We also agree that in practical

37
38

See p. 19, para. 51 of the IACHR Report.

See p.55, para. 131 of the IACHR Report.

36

terms, upholding the right to the presumption of innocence first implies that, as a
general rule, the accused should remain at liberty during criminal proceedings and
that pre-trial detention must only be used as a truly exceptional measure.39 As
the Inter-American Court has ruled, the principle of the presumption of
innocence gives rise to the obligation of the State not to restrict the liberty of a
detained person beyond the limits strictly necessary to ensure that he will not evade
justice.40

The burden of proof

34.

Consistent with the historic and traditional approach adopted in habeas corpus
applications in the common law world, the IACHR and IACtHR have also
recognised that the burden rests on the State to justify the grounds for pretrial detention. As the IACHR Report states Respecting the right to the
presumption of innocence requires the State to establish the existence of the applicable
requirements for pre-trial detention, clearly and duly grounded, in each specific
case.41

See p.56, para. 134 of the IACHR Report.

See Case of Barreto Leiva v Venezuela, Merits, Reparations and Costs, Judgment of November 17, 2009,
Series C No. 206, para. 121.
41 See IACtHR Case of Uson Ramirez v Venezuela, Preliminary Objection, Merits, Reparations and Costs,
Judgment of November 20 2009. Series C No, 207, para. 144.
39
40

37

The principle of exceptionality

35.

The requirement for pre-trial detention to be used only as a last resort on

specific grounds has been described as embracing or reflecting a principle of
exceptionality. The IACHR summarises the practical effect of such a
principle as meaning pre-trial detention shall be admissible when it is the only
[emphasis added] way to ensure the goals of the proceedings, because it can be shown
that less restrictive measures would be fruitless in securing those goals.42 General
Comment 8 of the UNHRC is to similar effect, requiring pre-trial detention to
be an exception and as short as possible (at paragraph 3)43. So too, Rule 6.1 of
the United Nations Standard Minimum Rules for Non-Custodial Measures
states that pre-trial detention shall be used of a means of last resort in criminal
proceedings, with due regard for the investigation of the alleged offence and the
protection of society and the victim. In our view it necessarily follows that the
correct application of this principle means that it will be important for any
detaining authority or reviewing Court to show that specific regard has been
had to protective measures falling short of detention before there can be any
question of pre-trial detention being upheld as lawful. That will mean, for
example, that there has been the fullest consideration of alternative security
measures such as provision of sureties, house arrest, electronic tagging,
restrictions on communications and meetings and the like.

42

See the IACHR Report at p. 59, para. 142.

43
See also General Comment 35 of 2014 at paragraph 38.

38

Legitimate reasons for pre-trial detention

36.

It is of course the case that there can be legitimate grounds for pre-trial
detention but, as a matter of principle, and consistent with the fundamental
importance of the liberty interest already addressed above, these must fall to
be strictly construed in accordance with domestic and international standards.
As the IACHR Report points out, the IACtHR has consistently held that the
provisions of the ACHR give rise to the obligation not to restrict the liberty of a
detained person beyond the limits strictly necessary to ensure that he will not impede
the efficient development of an investigation and that he will not evade justice.44

37.

Importantly, the IACtHR has also emphasised that the personal characteristics
of the supposed author and the gravity of the offence he is charged with are not, in
themselves, sufficient justification for preventive detention.45

The potential

significance of this approach to the present context will be obvious. It cannot

suffice as a justification for preventive pre-trial detention to show, for
example, that a particular accused is (a) well-resourced in financial terms or
(b) accused of serious offences of corruption. Instead, something more, going
to the risk of interference with the proceedings or evasion of justice is
required.

See the IACHR Report at p. 60, para. 143.

See the IACtHR Case of Bayarri v Argentina, Preliminary Objection, Merits, Reparations, and Costs,
Judgment of October 30 2008, Series C No. 187, para. 74.
44
45

39

Invalid or inadequate grounds for pre-trial detention and references to risk of future
offending
38.

The converse of the limited and closed class of justifications for pre-trial
detention just addressed is that there will, or may, be examples of detaining
or judicial authorities invoking grounds for detention which cannot withstand
scrutiny when measured against a proper understanding of international and
constitutional standards. The IACHR Report gives some examples of such
flawed grounds as including (a) provisions which allow for pre-trial detention
to apply on a blanket basis to certain classes of offences,46 (b) reliance solely
on the potential sentence involved even where this was said, because of its
gravity, to give rise to a presumed flight risk,47 and (c) where it was said that
sufficient indications of guilt were present.48 Similar limitations and
principles are also recognised in other leading international Courts and, in
particular, in the jurisprudence of the European Court of Human Rights.49

39.

In this regard we have also seen internet reporting in relation to the particular
context of the car wash investigation in which pre-trial detention decisions
have apparently been defended by the investigating judge as a way to
highlight the seriousness of crime and demonstrate the effectiveness of judicial action,

See the IACHR Report at p. 62, para. 148; Suarez Rosero v Ecuador, Judgment of November 12 1997,
Series C No. 35, para. 98.
47 See the IACHR Report at p. 62, para. 149 and p. 63, para. 152; Lopez Alvarez v Honduras, Judgment of
February 1 2006, Series C No. 141, para. 81.
48 See the IACHR Report at p. 62, para. 150.
49 See Idalov v Russia, Judgment of 22 May 2012 (Grand Chamber) at para. 145; Chiradi v Germany,
Judgment of 26 October 2006 at para. 40; Wemhoff v Germany, Judgment of June 27 1968 (Grand
Chamber) at para. 14.
46

40

especially in lengthy judicial systems.50 If this reporting is correct then it would,

in our view, be highly problematic as a basis for justifying pre-trial detention.
It would demonstrate an absence of sufficient focus on the particular facts of a
detainees case, and a failure to have regard to the strictly construed closed
class of justifications for deprivations of liberty prior to any conviction. The
desire to signal the seriousness of an alleged crime, or the effectiveness of
judicial action cannot, in our view, provide any principled basis for
interference with a right as important as personal liberty and the length of
judicial processes in Brazil militates against rather than in favour of pre-trial
detention. Observations of this kind if applied to individual cases would also
create very real concerns as to the impact on the presumption of innocence.

40.

We have also seen reference to pre-trial detention being justified because of a

fear of criminal repetition. For example, the decision of the 13th Federal
District of Curitiba dated 24 June 2015 converting the temporary detention of
Alexandrino de Salles Ramos de Alenar, into preventative detention suggests
that Odebrecht, with all of its ample resources and billions and its corresponding
political and social responsibility, has no intention of recognising its responsibilities
based on the facts, which makes it necessary to act to eliminate the risk of further
criminal acts. The decision recognises that it is not dealing with the request for
an admission of the facts, which would be contrary to the principle of a full defence
but nonetheless states that considering the proof, in summary form, the continued

50

See e.g. Means and Ends, 5 January 2015.

41

involvement of the contractor in the criminal acts of the cartel, bid rigging and the
corruption of public officials, that there is a risk of reoccurrence before noting the
necessity of preventative arrest of the executives involved to disrupt activities of the
cartel, fraud in bidding and payment of bribes to public officials. Terminology
such as this merely has to be set out for concerns as to a failure to respect the
presumption of innocence to be apparent.

41.

In this context we particularly note the reference in the 24 June 2015 decision
to converting the temporary detention of Alexandrino de Salles Ramos de
Alenar, an executive of Odebrecht SA, into preventative detention to the
alternative of suspending all Odebrecht contracts with state companies and
forbidding any new ones. This seems to us to focus on an entirely different
matter to that usually and properly considered under the rubric of alternative
measures in place of detention (e.g. house arrest, restrictions on movement,
restrictions on communications and meetings). Instead by assuming that
which has to be proved (namely the underlying allegation of wrongful
conduct in state contracts) the decision merely gives rise to further serious
concerns in relation to the adequacy of respect for the presumption of
innocence.

42

42.

Although it is correct that certain international instruments (the European

Convention on Human Rights (the ECHR) among them51) expressly
recognise the potential for detention to prevent the commission of an offence,
it is very important not to misunderstand such provisions or to exaggerate
their scope in international law. Detention on this basis will only be legitimate
on the basis of a properly individualised determination where an individual
is reasonably suspected of being about to commit a specific concrete offence
and evidence of intention on the part of the detainee to commit a concrete offence
will be necessary.52 It is not acceptable to detain someone for a crime not yet
committed on some wider general basis and there is no basis upon which
general preventive detention can be justified by reference to provisions such
as these. There will, accordingly, be very few cases53 falling within this
justification for pre-trial detention even under an instrument expressly
containing wording of this kind. The ACHR of course contains no such
wording and so the scope can certainly be no wider under it and in our view
is likely to be narrower if it exists at all.54

Article 5(1)(c) of the ECHR allows for the arrest and pre-trial detention of a person in the following
terms: the lawful arrest or detention of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so.
52 See Jacobs, White & Ovey, The European Convention on Human Rights (6th ed., OUP, 2014) at p. 222.
See also e.g. Ostendorf v Germany, Judgment of 7 March 2013 at paras. 65-68.
53 Ibid.
54 Some leading commentators argue with some force that there is actually no real scope for this
aspect of Article 5(1)(c) to operate independently as conduct close to an attempt at criminal conduct
would be required and would be likely to constitute an offence in and of itself, (see e.g. Clayton &
Tomlinson, The Law of Human Rights (2 ed., OUP, 2009) at 10.193).
51

43

43.

The South African Constitutional Court has also emphasised that any attempt
to justify detention by reference to future conduct can only conceivably be
sustained if the detaining authorities are able to show not merely a
possibility or suspicion that such a risk would materialise but a likelihood
or probability that it will do so, and even then it would only be one of a range
of factors to be taken into account (see S v Dlamini 1999 (7) BCLR 771 (CC)).

44.

We would also add that to purport to justify a pre-trial detention by reference

to a risk of criminal repetition is also potentially problematic for the
enjoyment of the presumption of innocence, because it carries with it adverse
implications as to past alleged conduct which, by definition, has yet to be
proved.

Plea bargains and judicial co-operation agreements

45.

Of further, and particular, potential relevance to the present context is the

suggestion which appears to have been made in some quarters that a
detainees willingness or otherwise to enter into some form of plea bargaining
arrangement or, more accurately, judicial co-operation agreement could be
relevant to whether or not pre-trial detention could be justified. Academic
research suggests that placing defendants in pre-trial detention in fact creates

44

tremendous pressure for guilty pleas regardless of actual culpability.55

Relevant agreements would include both colaborao premiada in which an
individual denounces third parties as well as delao premiada in which they
offer a confession that does not implicate anyone beyond themselves.

46.

In this regard we have seen reference to Court decisions upholding detention

decisions on the basis of the unwillingness of the accused to provide any
clarification on secret accounts abroad and reported statements by Prosecutor
Manoel Pastana that for the bird to sing it has to be imprisoned and that pretrial detention is designed to encourage an accused to start talking.56 In
another article it is claimed that Mr Pastana had resisted two habeas corpus
applications brought by detainees on the basis that pre-trial detention had
the important function of convincing the criminal offenders to co-operate with the
unveiling of penal illicit acts, obtaining the possibility of influencing them to wilfully
co-operate in the determination of liability.57

47.

If remarks such as these have indeed been made then they would, in our
view, raise very serious issues as to the lawfulness of pre-trial detentions
motivated by such considerations. We are aware of no domestic or

See, for example, Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev.
2463, 2491-93 (2004); Gerland E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L.
Rev. 2117, 2146 (1998) and Malcolm M. Feeley, The Process is the Punishment: Handling Cases in a Lower
Criminal Court (1st ed., Russel Sage Foundation, 1992) at 236.
56 See Class Record Book November 29, 2014 The bird must be in a cage to sing; Objectified Bodies
December 2, 2014: We have to resist against the continued expansion of punitive power.
57 See Voluntary Act December 8, 2014: Imprisonment to pressure confession disfigures the plea bargain.
55

45

international law authority which suggests that encouragement of a detainee

to provide evidence to the prosecution or to enter into a plea bargain
agreement can be a proper justification for pre-trial detention. On the contrary
it is our view that such an approach would be contrary to one of the most
fundamental of fair trial rights protected both in international and
comparative law - the right to silence, described by the European Court of
Human Rights (the ECtHR) in Murray v UK, Application No. 14310/88,
Judgment of 8 February 1996 with privilege against self-incrimination as
generally recognised international standards which lie at the heart of the notion of a
fair procedure or, as Article 8 g. of the ACHR puts it the right [of a defendant]
not to be compelled to be a witness against himself as well as raising serious
issues concerning the presumption of innocence.

48.

Further support for such an analysis is provided by a decision of the UNHRC

in which it was held that it was arbitrary and contrary to the ICCPR to arrest
and detain a lawyer to force him to waive his professional obligation of
secrecy (see Hugo Van Alpen v The Netherlands, 305/1988). So, by parity of
reasoning, to use detention to force a waiver of the right to silence would be
similarly likely to breach the ICCPR.

49.

Although we have also seen references to Prosecutor Pastana rejecting the

suggestion that his remarks are to be construed as indicating that pre-trial
46

detention was to be used as a way of forcing the confession and that cooperation with the prosecution was, instead, merely a means of confirming
the appropriateness of a plea bargain agreement we are concerned that such a
distinction would be one without any material difference. If an individual
knows that by entry into a plea bargain agreement, and provision of selfincriminating information, he will not be subjected to pre-trial detention that
will, in practical terms, be very difficult to distinguish from a situation in
which an individual is told that unless he provides incriminating information
he will be the subject of pre-trial detention. This difficulty of distinction
strongly underscores the problematic nature of plea bargaining agreements
having any substantial role to play in determining pre-trial detention issues.
At most, entry into such an agreement could perhaps be relied on by a
detainee as a positive factor in his or her favour, but the failure to enter into
such an agreement, or to provide incriminating information, could, in our
view, never be a proper basis upon which to uphold pre-trial detention.

Necessity, proportionality and reasonableness

50.

The IACHR and IACtHR in common with other bodies such as the
European Court - also apply concepts of necessity, proportionality and
reasonableness in assessing the lawfulness of measures which interfere with
fundamental rights. Commensurate with the importance of the liberty interest

47

it can be anticipated that this exercise will be a particularly rigorous one in the
present context.

51.

Again we have considered and agree with the core of the analysis in this
regard set out by the IACHR at paragraphs 158 to 172 and 221 to 243 of its
Report. We would particularly flag the following aspects of this analysis:

(a)

Efforts should always be made, and be shown to be made, to replace

detention with a less severe precautionary measure even if some
grounds for precautionary measures is made out;

(b)

Particular regard will have to be had to the criterion of proportionality

such that the restrictions imposed are not exaggerated or excessive
when measured against the benefit it is said they will yield. A failure to
consider alternative measures will show detention to fail both the
necessity and the proportionality tests;

(c)

Regard will have to be had to the contemplated length of pre-trial

detention in order for it to withstand scrutiny on reasonableness
grounds. This principle finds specific expression in Article 7.5 of the
ACHR and that provisions imposition of temporal limits on the

48

duration of pre-trial detention.58 The ECtHR has emphasised that for

extended periods of pre-trial detention particularly convincing
grounds must be presented in order to prevent a measure from being
held to be unlawful in Convention terms;59

(d)

Although the existence of a reasonable or relevant suspicion that an

accused has committed a crime is a sine qua non requirement for
ordering pre-trial detention that factor cannot in and of itself justify
either the imposition of the measure or its imposition over a protracted
period;60

(e)

The IACHR has rightly identified a host of measures which will fall to
be considered by way of alternatives to detention and emphasised case
law mandating such consideration.61

The principle of immediacy and the imperative of fairness

52.

Just as a conventional application of habeas corpus relief at common law would

require expedition, so too international standards require application of what
has been called a principle of immediacy. In order for a State to discharge its

See further in this regard Case of Barreto Leiva v Venezuela, Merits, Reparations and Costs, Judgment
of November 17, 2009, para. 119.
59 See Melnikova v Russia, Judgment of January 30 2008 at paras. 83-84.
60 See Labita v Italy, Judgment of April 6 2000 (Grand Chamber) at para. 15.
61 See e.g. Jablonski v Poland, Judgment December 21 2000 at para. 84 and the IAHRC Report pp. 90-91
at paras. 224-233.
58

49

international obligations it must operate a system to schedule and hold

hearings and allow for substantive determinations on pre-trial detention
without delay.62

53.

Also relevant is the effect of pre-trial detention on the fairness of the

substantive hearing. So, in considering detention the Canadian courts take
into account not only rights to liberty and fair trial as set out in sections 10
and 11 of their Charter, but also consider prejudice to the accused, namely,
that the opportunity to prepare a defence will be impaired.63 See to similar
effect, two United States cases, Barker v Wingo 407 US 514 (1972) and Strunk v
US 412 US 434 (1973) where, at paragraph 74, it was said:

The time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of job; it disrupts family life; and it enforces
idleness. Most jails offer little or no recreational or rehabilitative programs.
The time spent in jail is simply dead time. Moreover, if a defendant is locked
up, he is hindered in his ability to gather evidence, contact witnesses, or
otherwise prepare his defense. Imposing those consequences on anyone who
has not yet been convicted is serious. It is especially unfortunate to impose
them on those persons who are ultimately found to be innocent. Finally, even
62
63

See the IAHRC Report pp. 73-74 at paras. 178-181.

R v Askov [1990] 2 S.C.R. 1199; R v Morin [1992] 1 S.C.R. 771.

50

if an accused is not incarcerated prior to trial, he is still disadvantaged by

restraints on his liberty and by living under a cloud of anxiety, suspicion and
often hostility.

54.

Perhaps for these reasons, the ECtHR held in Assenov v Bulgaria, Application
No. 24760/94, Judgment of 28 October 1998 at paragraph 154 that the
persistence of reasonable suspicion that the person arrested has committed an offence
is a condition sine qua non for the validity of the continued detention, but, after a
certain lapse of time, it no longer suffices: the Court must then establish whether the
other grounds cited by the judicial authorities continue to justify the deprivation of
liberty.

55.

To this end, the decision of the 13th Federal District of Curitiba dated 24 July
2015, reviewing and maintaining its own previous decision to order the
preventative detention of Rogrio Santos de Arajo, Mrcio Fria da Silva,
Cesar Raomos Rocha, Alexandrino de Salles Ramos de Alenar and Marcelo
Bahia Odebrecht concerns us. As an attempt to re-take the original decisions
based on additional evidence at a time when we understand that they were
already the subject of appeals, its effect is potentially to reset the clock in
relation to the extant appeals, so as to thwart the objective of immediacy. We
are also, in particular, troubled by some of the language used in this decision
which, at least on an initial reading, appears to assume crimes to have been

51

committed notwithstanding the obvious importance of the presumption of

innocence and to suggest that the failure of Odebrecht to seek leniency
agreements is evidence of risk of future criminality.

56.

We have been given some reassurance, however, by the decision of the

Supreme Federal Tribunal dated 16 October 2015 in which Minister Teori
Zavascki examined the application for habeas corpus made by Alexandrino de
Salles Ramos de Alenar and agreed to review both the original preventative
detention decision and this subsequent decision on the basis that the latter
involved no real new ground.

This was despite both lower tiers of the

Superior Tribunal de Justia and the Tribunal Regional Federal refusing to

examine the application on the basis that it had lost its object by virtue of the
second decision, resulting in a substantial delay in the proper hearing of the
application. It remains to be seen whether a similar course is adopted in
relation to the applications of other defendants and what impact this
important decision of Minister Zavaski will have on the conduct of the lower
Courts and judicial authorities more broadly.

Adequacy of reasons for decisions

57.

In addition to providing a properly expeditious process which has regard to

all relevant factors any decision providing for pre-trial detention must also be
properly reasoned. If it is not then it will render the decision arbitrary and
52

unlawful in international law. This is clear from findings of UN treaty bodies

and decisions of the IACtHR and the ECtHR.64 The ECtHR has put the matter
very clearly by stating that generality will not suffice and there must be
specific facts and findings relevant to an individuals particular case before
detention can be justified.65

Bail
58.

In many countries these principles have been set out by the courts in the
context in which bail (release on the security of a monetary sum or imposition
of other conditions short of a deprivation of liberty) is granted to persons
detained and in advance of trial, and may be denied only in the interests of
justice.

59.

One example, is provided by section 60(4) of the South African Criminal

Procedure Act 1977 which states that a person may be denied bail where that
is a likelihood (which has been held to be more than a probability ) that the
accused, if released on bail would:

See the IACtHR Case of Yvon Neptune v Haiti, Judgment May 6 2008, Series C No. 180, para. 108;
Working Group on Arbitrary Detention Annual Report 24 December 2012 at para. 62; the IACtHR
Case of Chaparro Alvarez v Ecuador, Judgment of November 21 2007, Series C No. 170, para. 93.
65 See e.g. Aleksanyan v Russia, Judgment of December 22 2008, at para. 179.
64

53

(a)

endanger the safety of the public or any person or will commit an . . .

offence;

(b)

attempt to evade trial;

(c)

attempt to influence or intimidate witnesses or to conceal or destroy

evidence;

(d)

undermine or jeopardise the objectives or the proper functioning of the

criminal justice system, or

(e)

where in exceptional circumstances, there is the likelihood that the

release of the accused would disturb the public order or undermine
public peace or security.66

60.

Even where exceptional circumstances do exist (for example, the prospect of

there being an attempt to evade trial if released) conditions may be placed
upon the persons release rather than keeping them in detention.

Such

conditions include reporting regularly at a specified time and place;

forbidding the person to visit certain places; prohibition of communication by
the accused with certain witnesses; electronic tagging, and so on.

54

61.

The South African Criminal Procedure Act then sets out the following factors
that must be taken into account in deciding whether to grant an accused bail:

(a)

the period for which the accused has already been in custody since his
or her arrest;

(b)

the probable period of detention until the disposal or conclusion of the

trial if the accused is not released on bail;

(c)

the reason for any delay in the disposal or conclusion of the trial and
any fault on the part of the accused with regard to such delay;

(d)

any financial loss which the accused may suffer owing to his or her
detention;

(e)

any impediment to the preparation of the accuseds defence or any

delay in obtaining legal representation which may be brought about by
the detention of the accused;

(f)

the state of health of the accused; or

(g)

any other factor which in the opinion of the court should be taken into
account.
55

62.

When these criteria have been tested in courts, the general principle has been,
first, whether there was a rational connection between the persons
deprivation of liberty and some legitimate, or objectively determinable
purpose. Second, the courts ask whether the detention serves any just cause.
For example, the detention of all those owing civil debts was held by the
South African Constitutional Court to be lacking in just cause.67

63.

International practice also provides that the longer the person is detained
without trial, the more the courts will require in order for the detention to be
justified. As was said in a Zimbabwean case,

The amount of time which had elapsed has to be considered together with the
crucial factor of the lack of progress in the investigations in this case. The
Attorney General acts at his peril if he fails to put before the court specific facts
which show that the States case has been strengthened after a long time.68

64.

So too ECtHR jurisprudence rejects passive reliance on standard, preformulated reasons justifying detention, especially when the accused has been
held for an extended period of time.69

Coetzee v.Government of the Republic of South Africa and others v Commanding Officer Port Elizabeth
Prison , 1995 (4) SA 631 (CC).
68 S v Stouyannides 1992 (2) ZLR 126 (SC) at 127. See also S v Hitschmann 2007 (2) SACR 110 (ZH).
69 Bahmutskiy v Russia, Application No. 36932/02, Judgment of 25 June 2009.
67

56

65.

UNHRC jurisprudence is analogous. In Hill v Spain 526/1993, citizens of the

UK were detained in Spain for three years before being granted bail. The
UNHCR held that the authorities were obliged to provide factual information
to substantiate their claim that the detained persons would leave the territory
if released and to show why they could not be released on bail and other
conditions of release. Spains conjecture that the Applicants would flee the
jurisdiction given their status as foreigners was rejected by the UNHRC as
insufficient, a violation of Article 9 of the ICCPR was found and Spain was
directed to provide compensation to the Applicants.70

D.

Constraints in Brazilian domestic law

66.

We should also emphasise in this context that we have had regard to Article
312 of the Code of Criminal Procedure. This provides, in material part: that
preventive detention may be ordered to maintain public order, economic order,
for the convenience of a criminal investigation, or to secure the enforceability of the
criminal law, whenever there is evidence of a crime and sufficient indication of who
committed it. Although this wording is general in nature we would expect
it to be construed in a way that was consistent with the international
standards set out above. On this basis, it is important to stress that the term
convenient should be interpreted in its technical narrow sense, that is, it

70

See also Aleksander Smantser v Belarus, Communication No. 1178/2003, Decision 17 November 2008.

57

applies only when there is some demonstrable and specific risk of interference
with evidence, or of flight by the detainee, which could not be met by
alternative measures falling short of detention. Similarly detention could not
be said to be necessary to secure the enforceability of the criminal law unless
there were specific and concrete information as to the imminent commission
of a criminal offence. We can, in particular, see no basis upon which this
provision could be construed so as to permit pressure to be placed on a
detainee to provide incriminating information (whether in respect of himself
or others) without placing Brazil in breach of her international obligations.

67.

By analogy, Articles 647-667 of the Code of Criminal Procedure which

provide for habeas corpus suggest the following, given the need to construe
them against the international standards set out above:

(a)

There are a number of illegitimate grounds for detention, pre-trial or

otherwise, which include where there is no just cause (Article 648). In
the context of pre-trial detention, this falls to be construed consistently
with, for example, the need not to restrict the liberty of a detained
person beyond the limits strictly necessary to ensure that he will not
evade justice;

(b)

The judge or tribunal shall cause the order sought to pass immediately
(Article 649) and an officer that procrastinates in effecting its

58

enforcement is liable to a fine (Article 655). The provisions dealing

with the presentation of the detained (Articles 656-657) similarly reflect
the principle of immediacy and a decision must then be made within 24
hours (Article 660).

68.

We also understand that the bail provisions in Articles 321-350 provide for
bail in relation to certain offences with and without the provision of bail
bonds. These too fall to be construed in line with the international standards
set out above.

69.

At this juncture, we return to consider the interpretation given to these

provisions in the recent decision of the Supreme Federal Tribunal dated 16
October 2015 concerning the preventative detention of Alexandrino de Salles
Ramos de Alenar. Minister Teori Zavascki cites three key principles which
reflect international standards on this issue:

(a)

The exceptionality of preventative detention, given its infringement of

the presumption of innocence;

(b)

The irrelevance of the gravity of the crime as a ground for justifying

preventative detention; and

(c)

The need for preventative detention to be a measure of last report, used

only when no other less restrictive measure is available to achieve the
59

protection of the interests listed in Article 312 of the Criminal

Procedure Code.

70.

Applying these principles to the facts of the preventative detention of

Alexandrino de Salles Ramos de Alenar, Minister Zavascki concludes that
while there is sufficient evidence of criminality, there is no proper basis for
the assumption that the defendant might flee nor interfere with evidence.
Minister Zavascki concludes:

it is undeniable that society has sufficient and justified reason to be

indignant with news of crimes like those indicated here and to expect an
adequate response by the state, to the effect of identifying and punishing the
guilty. However, society will also be able to understand that the credibility of
our institutions, especially the power of the judiciary, will only be
strengthened in the exact measure of its capacity to keep strict compliance
with the law, be it in the investigation and punishment of these grave crimes,
be it in the preservation of the constitutional principles of the presumption of
innocence, the right to an ample defence and due legal process, within which is
included also the prohibition of provisional detention outside the strict cases
authorised by the legislator.

71.

In the absence of any concrete justification for preventative detention and the
ability of alternative measures to achieve the purposes of protecting the
60

public interests listed in Article 312 (including monthly reporting and

prohibitions on communications with other defendants and on travel out of
Brazil), the defendant was released. It seems to us that the approach adopted
by Minister Zavascki reflects the international law analysis we have set out
above and it is anticipated that a similarly principled and robustly analytical
approach should now be adopted in the examination of the habeas corpus
applications made by other defendants both at Supreme Court level and at
lower levels.

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E.

Risks presented by adverse media coverage to the presumption of

innocence enjoyed by all those subject to criminal investigation

72.

We have already explained above how the presumption of innocence will

inform a properly restrictive approach to the grounds upon which pre-trial
detention may be ordered. We also understand that there has been a high
level of adverse press coverage relating to some of those who are the subject
of the Car Wash investigation. The statements made by Prosecutor Pastana
and set out at paragraph 46 above would give rise to obvious concerns in this
regard as would the specific statements set out at paragraph 40 and following
and would in our view be capable of raising clear issues in relation to the
presumption of innocence.

73.

We have not however yet seen a comprehensive summary of the media

coverage which has caused concern and so can express no concluded views
on its implications. We do, however, set out below, the relevant guidance in
this area available from international law. Three matters merit emphasis: first
adverse media coverage can undermine an individuals right to a fair trial;
secondly the presumption of innocence may be violated both by the conduct
of a trial court and by that of public officials making adverse comments in
respect of a defendant indicative of a concluded view of guilt; and thirdly any
analysis of the implications of adverse coverage will be fact sensitive and will

62

require a comprehensive understanding of the coverage in issue and close

consideration of its timing and potential impact on both potential fact finders
and public opinion.

74.

Leading cases in this area supportive of these propositions from the ECtHR
include Allenet de Ribemont v France, Judgment of 10 February 1995 (Series A
No. 308), Konstas v Greece, Judgment of 24 May 2001 and, most recently,
Abdulla Ali v United Kingdom (Application No 30971/12), Judgment of 30 June
2015. In this last case the ECtHR summarised the relevant principles in the
following terms:

87.

A virulent press campaign can adversely affect the fairness of a trial by

influencing public opinion and, consequently, jurors called upon to decide the
guilt of an accused. In this way it risks having an impact on the impartiality of
the court under Article 6 1 as well as the presumption of innocence
enshrined in Article 6 2 (see Ninn-Hansen v. Denmark (dec.), no. 28972/95,
ECHR 1999-V; and Beggs v. the United Kingdom (dec.), no. 15499/10, 123,
16 October 2012). If there is a virulent press campaign surrounding a trial,
what is decisive is not the subjective apprehensions of the suspect but whether,
in the particular circumstances of the case, his fears can be held to be
objectively justified (see Daktaras v. Lithuania (dec.), no. 42095/98, 11

63

January 2000; Woch v. Poland (dec.), no. 27785/95, 30 March 2000; Priebke
v. Italy (dec.), no. 48799/99, 5 April 2001; and Beggs, cited above, 123).
88.

The Court has previously identified various matters that it considers relevant
to the assessment of the impact of adverse publicity on the fairness of the trial
or on respect for the presumption of innocence. Thus, it has made clear that
there is unlikely to be any arguable complaint under Article 6 where the
criminal charges are determined by professional judges, since their
professional training and experience allow them to disregard any external
influence (see, for example, Priebke, cited above; and G.C.P. v. Romania, no.
20899/03, 48, 20 December 2011).

90.

In some cases concerning adverse press publicity, the Court has looked at
whether the impugned publications were attributable to, or informed by, the
authorities (see, for example, Sutyagin v. Russia (dec.), no. 30024/02, 8 July
2008; and Beggs, cited above, 127). However, it is important to emphasise
that the fact that the authorities were the source of the prejudicial information
is relevant to the question of the impartiality of the tribunal only in so far as
the material might be viewed by readers as more authoritative in light of its
source. The question whether public officials have prejudged a defendants
guilt in a manner incompatible with the presumption of innocence is a
separate issue to be considered under Article 6 2, with the focal point being
the conduct of those public officials and not the impartiality of the tribunal
itself (see, for example, Allenet de Ribemont v. France, 10 February 1995,
64

39-41, Series A no. 308). Thus, while the authoritative nature of the published
material may require, for example, a greater lapse of time or most robust jury
directions, it is unlikely in itself to lead to the conclusion that a fair trial by an
impartial tribunal is no longer possible. In particular, allegations that any
disclosure of prejudicial material by the authorities was deliberate and was
intended to undermine the fairness of the trial are irrelevant to the assessment
of the impact of the disclosure on the impartiality of the trial court.

75.

The Privy Council has also opined relatively recently on this issue.

In

Montgomery v HM Advocate [2003] 1 AC 641 at 670B-C, which contains a

helpful survey of much of the relevant jurisprudence, their Lordships
considered whether the publicity given to a murder trial prejudiced the right
of the defendants to a fair trial and noted that the decisive question was
whether the doubts raised about the impartiality of the tribunal were
objectively justified; this was not confined to the effect of the publicity on the
minds of jurors but included the role of the trial judge.

65

F.

Conclusion

76.

Fundamental international principle regards pre-trial detention as offensive to

the rule of law and endorses the right to trial within a reasonable time. This is
because pre-trial detention is a form of punishment, which should not
normally occur in advance of a fair trial. And the punishment is not only of
the person detained. His or her family also suffers deprivation from their
absence, including in many cases the loss of the familys breadwinner.

77.

78.

This principle is endorsed by constitutions and international treaties which:

(a)

prohibit arbitrary detention and deprivation of liberty;

(b)

require a trial within a reasonable time; and

(c)

presume that a person is innocent until proven guilty.

That is not to say that pre-trial detention should not be permitted in

exceptional circumstances where strictly necessary. But those circumstances
must be:

66

(a)

strictly based on legitimate aims related to the administration of justice

or the prevention of crime or disorder; and

(b)

exercised in a manner that is properly evidenced, referable to the

individuals particular position, proportionate and fair.

79.

If the allegations brought to our attention in the present context are wellfounded then we are of the view that serious issues relating to the lawfulness
of the use of pre-trial detention, the right to silence and the presumption of
innocence are raised. There would, furthermore, be very real concerns that
there had been a failure to have adequate regard to the fundamental and
historic significance of the right to personal liberty, and to the expeditious and
effective nature of the remedy represented by the writ of habeas corpus. We are
also of the view that the same circumstances would indicate a failure to
respect Brazils international obligations as owed under, in particular, the
ACHR and the ICCPR and would be difficult to reconcile with a proper
application of the Constitution of Brazil 1988 applied in accordance with such
instruments.

80.

We can, of course, express no concluded views as to whether fundamental

rights have been breached in any individual cases but we have sought to set

67

out an accurate summary of the relevant international standards against

which all individual cases should fall to be measured.
Timothy Otty QC
Sir Jeffrey Jowell QC
Naina Patel
17 November 2015

68