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Brazil: Provisions of Code of Criminal Procedure on Preventive Detention Amended

(July 7, 2011) On July 4, 2011, an amendment of Brazil's Code of Criminal Procedure revising 32 articles entered into force (Law No. 12, 402, May 4, 2011, amending Decree-Law No. 3,689 of Oct. 3, 1941). The amending legislation prevents persons who have committed crimes punishable with less than four years' imprisonment from being arrested, making incarceration a last resort.

In the past, a judge was able to send a suspect to prison if he or she offered any risk to society during the period of criminal prosecution. With the new Law, the person can only be arrested preventively after having been sentenced, in cases of domestic violence, or when there is doubt regarding the plaintiff's identity.

Instead of incarceration, the Law introduces new alternatives, such as the placement of a bond that can be determined by the police authority (delegado), as well as by a judge; electronic monitoring; nighttime house arrest; a travel ban; a prohibition on going to certain places and having contact with certain people; and suspension of the exercise of public or economic activity. These measures can be suspended and incarceration decreed if the plaintiff breaches any of the obligations or prohibitions imposed on him or her by the judge.

The immediate result of the new law is the release of thousands of prisoners who have not yet been tried. According to the Ministry of Justice, the nation's prison population is about 496,000 people, and in 37% of the cases, the prisoners have yet to be tried. (Paula Laboissière & Débora Zampier, Entra em vigor nova Lei da Prisão Preventiva, AGÊNCIA BRASIL (July 4, 2011).)