The current article aims to presenting the elevated numbers of pre-trial detention in Brazil and Bolivia, before legal systems that approach when it’s discussed the analysis of the requirements that makes it possible the applicability of the restraining measure in concrete cases.
It was made a research in Brazil at the end of last year (2019) which verified that there are more than 700 thousand people in jail, and, from this number, more than 256 thousand are destined to pre-trial detention, which means that these people had their locomotion liberty deprived from themselves and are, therefore, awaiting for the final trial of the criminal process.
A report from the Interamerican Human Rights Convention verified that, at the middle of the last decade, the number of prisoners who await a definitive conviction before the Bolivian legal system, in a period of time close to three years, had an eighty percent increasing. This data is much closer to Brazil when it is analyzed the same category and percentage of prisoners in the country’s totality prison population.
The current Brazilian legislation requests that, in order to apply a preventive imprisonment, it is essential that the following items, enlist in the Code of Criminal Process’ article 312, are present:
Art. 312. The pre-trial detention may be decreed as a warranty of the public order, the economic order, by a convenience of the criminal instruction or to secure the penal law’s applicability, when there is an evidence of the crime’s existence and enough clues of authorship and danger generated by the imputed’s situation of liberty. (Composing from the Law 13.964, 2019) (Current)

According to what was demonstrated before, in order to determine a pre-trial prison in Brazil, it is mandatory the guarantee of the public order, the economic order, and of the convenience of the criminal instruction to secure the penal law’s applicability, requirements which may be cumulated or not. It is also necessary an evidence of the crime or enough clues of authorship and danger generated by the imputed’s situation of liberty, considering this last one, as inserted in the Anti-crime package – regarded its numerous critics –, as a repetition of the risk that the investigated/accused may cause.
When it is discussed the Compared Law, in Bolivia, in order to apply the pre-trial prison, the Code of Criminal Process claims, starting from the Article 233, the following requirements: the existence of enough conviction’s elements to sustain that the accused is, probably, the author or participant in a punishable act and the existence of enough conviction clues that the accused will not submit to the process or will make the investigation of the truth harder. Now, let’s take a look at the articles 234 and 235 of the referred code:
Article 243. (ESCAPE DANGER). It is understood as escape danger any circumstances that may allow the accused to not submit himself to the process, looking for an escape from the legal system’s action.
In order to decide about his participation, it will be conducted a wide evaluation of the existing circumstances, considering the following items:
1. That the defendant might not own neither a residence, nor family, business or job established in the country;
2. The resources to flee from the country or remain hidden;
3. Proof that the accused is preparing himself to escape;
4. The accused’s behavior during the process or in an anterior one pointing to a will for no cooperation to it;
5. Any alternative exit to a malicious crime that was applied to the accused;
6. The existence of criminal activity repeated or anterior that was properly accredited;
7. Effective danger to society or to the victim or complainer; and
8. Any other circumstance duly accredited that allows the justification of the fact that the accused may run away.
ARTICLE 235. (DANGER OF OBSTRUCTION). By danger of obstruction, it is defined as any circumstance that allows the argument that the accused’s behavior might make the investigation of the truth harder. To decide about his participation, it will be made a wide evaluation of the existing circumstances, considering the following points:
1. That the accused may destroy, modify, hide and/or falsify evidences;
2. That the accused will threaten or influence negatively the participants, victims, witnesses or specialists in order to denounce or behave reluctantly;
3. That the accused may threaten or influence negatively judges, prosecutors and/or employees from the justice administration’s system;
4. That the accused may induce other to commit the actions described in numbers 1, 2 and 3 from this article;
5. Any other circumstance duly accredited, which will allow justifying that the accused, direct or indirectly, will make the investigation of the truth harder.
Before the exposition of the requirements to pre-trial prison between the compared legal orders, a point the deserves a highlight is the Brazilian legislation before the requirements, for they need interpretation, and these are in charge of the doctrine and the jurisprudence, while in the Bolivian Law, the articles ministered the ways through which the pre-trial prison may be established.
Especially due to the required conditions to the pre-trial prison and the high number of incarcerated people without conviction, we can conclude that there is a common culture installed before the South American countries, which tends to trivialize the prisons with no caution.
The studies performed by the Interamerican Convention of Human Rights corroborate with the previous mentioned arguments, and also, unfortunately, presents to us that in these countries the pre-trial prison is used in an excessive way, which increases the number of the prison population and takes the same population to critical and unworthy situations. This species of arrest dulls the lives from thousands of people that pay for crimes they did not commit.
Nonetheless, the largest number of people that are included in this type of incarceration is part of the black and poor youth. Logically, the adoption of strong public measures from the Government is required, because it cannot be denied that the arresting and pre-trial prisons have to be better analyzed, above all this the need for an analysis of segregation, avoiding a mass incarceration without any need nor responsibility.
Another point that also corroborates to the fact that, in Brazil, there is an acceleration of the incarcerating measures is the fact that, in five years, the country went from fifth to leading the number of pre-trial prisoners per habitant in South America, comparing itself to the Bolivian percentage.
The Judicial Power needs to understand that the criminality numbers will not be reduced from increasing the imprisoning numbers, therefore, this cannot be the first measure to be adopted, under penalty of violating Rights, the study of the Compared Law has showed us that there is a possibility of applying caution measures alternative to prison, and these are needed in great urgency and effectiveness.

BY,
RAFAEL TORRES,
CRIMINAL LAWYER;
CRIMINAL SCIENCE SPECIALIST;
PRESIDENT OF RAFAEL TORRES ADVOGADOS;
PRESIDENT OF THE PENAL LAW COMISSION FROM THE PERNAMBUCO’S CRIMINAL LAWYERS ASSOCIATION – ABRACRIM – PE;
PROFESSOR AT FACULDADE NOVO HORIZONTE;
SCIENTIFIC ARTICLES’ AUTHOR.