A/HRC/37/27 7. The Special Rapporteur drew attention to the importance of the inspection and monitoring of places of police custody and pretrial detention by independent national or international mechanisms, such as national preventive mechanisms, the Subcommittee on Prevention of Torture, the Special Rapporteur, and the International Committee of the Red Cross in the context of armed conflicts. Adequate laws and safeguards needed to be implemented and all allegations of torture must be investigated. Developing a global study on the effectiveness of the use of safeguards in police custody and pretrial detention, particularly with regard to vulnerable groups, would be valuable. While safeguards in the criminal justice system context were well developed, other forms of detention, such as security detention, administrative detention, preventive detention, systematic detention in cases of irregular migration, detention of persons with mental disabilities and protective detention in the case of honour crimes, were outside the criminal justice system and often suffered from a lack of safeguards. He closed by drawing attention to the human and social cost of torture as it destroyed the physical, mental and emotional integrity of the victim, the torturer, and any society, judicial system and political system that tolerated it. He reiterated the ineffectiveness of torture, but that torture prevention worked and the best way forward was to implement effective safeguards. 8. Mr. Toffoli described the recent development of custody hearings in Brazil, i.e. court hearings within 24 hours of detention to promptly verify the legality of arrest and the necessity of detaining a person during the pretrial period. The Constitution of Brazil provided that no one could be arrested unless they were caught during the commission of a crime, or a competent judicial authority had made a written and justified order. 3 Custody hearings were introduced to implement the treaty obligations of Brazil under the American Convention on Human Rights, article 7 (5) of which stated that “any person detained shall be brought promptly before a judge”. Mr. Toffoli referred to the ruling in September 2015 by the Supreme Court, in the case of a claim of non-compliance with a fundamental precept 347, in which the Court directed the National Council of Justice of Brazil to take action in relation to the prison system and introduce custody hearings. 4 He cited that as an example of judicial involvement in entrenching accountability. Custody hearings could prevent abuse and uncover police brutality. In relation to the financial implications, the implementation of custody hearings came within the judicial branch’s existing financial resources. Prison conditions were a serious challenge in Brazil, a country which had 600,000 people in detention and correctional facilities 5 out of a population of almost 208 million, making it the world’s fourth largest prison population, behind China, the Russian Federation and the United States. 9. Mr. Toffoli recalled that 250,000 custody hearings had taken place between February 2015 and June 2017, resulting in 116,000 conditional releases (with or without precautionary measures), meaning that 45 per cent of persons subject to custody hearings remained out of detention. According to the National Council of Justice of Brazil, more than 12,000 cases of torture or mistreatment were identified during the custody hearings. Such cases must be adequately reported, investigated and brought to justice. Since the introduction of custody hearings, judges decided on the legality of the arrest in 50 per cent of such cases. In the following two to three years, the aim was to have custody hearings in all cases of arrest throughout the country. Brazil had a long way to go in addressing illegal detention, and ill-treatment and torture of detainees, but, in principle, detainees should be brought before a judge within 24 hours of arrest and no one should be kept in pretrial detention without having been seen by a judge. 10. Ms. Donoso underscored the vital role played by the judiciary in relation to safeguards and accountability. She described the move by Chile in 2000, following widespread criticism, to an adversarial system that did not allow confessions to be submitted as evidence. Prior to that, a confession was the most important piece of evidence, 3 4 5 Art. 5 (LXI) states that no one shall be arrested unless in flagrante delicto or by a written and justified order of a competent judicial authority, save in the cases of military transgression or specific military crime, as defined in law. See http://english.tse.jus.br/arquivos/federal-constitution. See http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=10300665. According to National Prison Department data. 5