Covid-19: access to justice in Brazil and the importance of pro bono lawyering
Bianca dos Santos Waks
Mattos Filho, São Paulo
Flavia Regina de Souza Oliveira
Mattos Filho, São Paulo
Brazil is one of the countries most affected by the pandemic and has been facing an unprecedented health and social crisis, which has clear consequences on access to justice and on matters related to the judiciary and pro bono projects.
According to Oxfam, the pandemic worsened the economic and employment scenario in the country, with unemployment rates among 18- to 24-year-olds rising to 27.1 per cent and wages declining, in such a way that people were receiving only 82 per cent of their former monthly earnings.
In parallel, isolation measures meant that the justice system had to rely on virtual tools. The Brazilian National Council of Justice concluded, in a seminar held last year that the pandemic accelerated technological changes that had been expected to happen in ten years, or even more. However, access to justice for the 46 million Brazilian citizens who are excluded from the digital world remains a concerning challenge.
On 15 December 2020, the Federal Justice Council announced the projects ‘Justice 4.0: Innovation and effectiveness in the performance of Justice for all’ and ‘Improvement of Efficiency, Effectiveness and Transparency in the Electronic Judicial Proceeding’, recognising the country’s rates of 6,962 cases per judge and 68.5 per cent of judicial congestion.
Regarding the performance of Public Defender’s Offices, during the pandemic staff began to work remotely and only in urgent cases. According to a survey conducted by Fundação Getúlio Vargas, 92.6 per cent of Public Defenders affirm that the pandemic affected justice services for the poorest citizens and 47 per cent of professionals believe they are not able to assist the public satisfactorily as: (i) a significant part of those in need of free legal advice do not have access to digital resources, such as smartphones or computers; (ii) even when they have access to such resources, they have difficulties sending documents and communicating; (iii) many of them do not have digital literacy and find it difficult to understand what is being required; (iv) there is an overload of work and demands on few professionals; (v) there are no spare institutional resources to promote and facilitate the service; and (vi) it is impossible to perform parts of assistance support without in-person activities.
Another key criminal justice procedure, custodial hearings, has also been severely impacted. On 24 November 2020, the National Council of Justice approved an amendment to Resolution No 329/2020 to allow hearings by videoconference. The Brazilian Supreme Courts’ Justice Luiz Fux argued that ‘the failure to conduct custody hearings during this period will result in much greater damage to thousands of prisoners, with a return to the procedural dynamics that prevailed before 2015.’
In this regard, some civil society organisations (for example, Pastoral Carcerária and Instituto Defesa do Direito de Defesa) protested against the videoconference measure suggested, as they understood that custodial hearings do not fulfil their purpose when held by virtual means ‘once it is impossible to capture the evidence and traces of torture by the judge and it is difficult to avoid physical or moral coercion at the hearing.’
The country is also witnessing the growth of domestic violence. Considering that most crimes committed against women in the domestic environment require the victim to initiate an investigation, complaints began to decrease in quarantine periods due to social distance and lockdown measures. In addition, the more intense presence of the aggressor at home constrains the woman from making a telephone call or even to report the violence suffered to the competent authorities.
Although calls to police have increased, records of police reports have decreased, with concerning reductions of urgent protective measures and records of intentional body injury, threat, rape and lethal violence in the first half of 2020. In addition, the pandemic evidenced the instability suffered by protection services, with a decrease in the number of available professionals.
In this scenario of the pandemic and consequent impact on access to justice, pro bono is developing increasingly in the country. Programmes dedicated to public interest law are spreading into Brazilian firms and law students are showing growing engagement in pro bono projects. Although a critical situation on one hand, on the other, this moment also proves to be opportune for the maturity of public interest law and the defence of human rights.
Pro bono projects offer legal support and advice to public interest and social impact matters aimed at enabling private investment in public policies and strengthening civil society actions on healthcare, income generation and social assistance related to facing the pandemic. This includes donations, contract elaboration and review as well as legal analysis on corporate, tax, regulatory and intellectual property matters.
There are also efforts in civil claims to alter the visitation regime between separated parents with children in shared custody because many non-custodial parents disrespect the health measures to fight the coronavirus. In that sense, as the non-custodial parents were putting women and their children at risk of contamination (by disrespecting social isolation, physical distancing and other hygiene measures), the violation of the shared custody arrangement was addressed as a form of violence against women. Taking that into consideration, efforts focused on changing the visitation regime for women whose ex-partners were not following the public health guidance on Covid-19 prevention, so that visits could happen virtually and the health of women and their children preserved.
Regarding the criminal justice system, despite the fact that custodial hearings were suspended in Brazil during the pandemic, pro bono lawyers acted on cases about the legality of prisoners held during this period and raised awareness about the risks of Covid-19 in Brazilian prisons, considering their overpopulation.
Unfortunately, the country still suffers from the increase in contagions and daily deaths caused by Covid-19, which means that social isolation might remain and, consequently, access to justice is impacted. On the other hand, some cooperation projects between the Brazilian private and public sectors aim to vaccinate the population as soon as possible.
Hopefully, after immunisation, the country will resume projects to improve the justice system, ensure the population access to legal services and to their basic rights, and remain growing its pro bono activity whose path of development is of no return.
 Conselho Nacional de Justica, ‘Pandemic leads Judiciary to accelerate technological adaptation’, 21 August 2020, available at: www.cnj.jus.br/pandemia-leva-judiciario-a-acelerar-adaptacao-tecnologica.
 Conselho Nacional de Justica, ‘Projetos de inovação promoverão efetividade e ampliação do acesso à justiça no Brasil’, 15 December 2020, available at: www.cnj.jus.br/inovacao-promoverao-efetividade-e-ampliacao-do-acesso-a-justica-no-brasil.
 Do Portal do Governo, ‘Defensoria Pública realiza atendimento remoto durante o período de quarentena,’ 24 March 2020, available at: www.saopaulo.sp.gov.br/ultimas-noticias/defensoria-publica-realiza-atendimento-remoto-durante-o-periodo-de-quarentena.
 Fundação Getúlio Vargasand Nucleo de Estudos da Burocracia, ‘A Pandemia de COVID-19’, 2020, available at: https://neburocracia.files.wordpress.com/2020/08/rel06-defensoria-covid-19-v4-1.pdf.
 Conselho Nacional de Justica, ‘Audiência de custódia poderá ser feita por videoconferência na pandemia,’24 November 2020, available at: www.cnj.jus.br/audiencia-de-custodia-podera-ser-feita-por-videoconferencia-na-pandemia.
 Pastoral Carcerária, ‘Pcr nacional protocola pedido para que cnj julgue audiências de custódia por videoconferência como inconstitucionais’, 24 November 2020, available at: https://carceraria.org.br/combate-e-prevencao-a-tortura/pcr-nacional-protocola-pedido-para-que-cnj-julgue-audiencias-de-custodia-por-videoconferencia-como-inconstitucionais; and Instituto Defesa do Direito de Defesa, ‘Videoconferencia nao ve tortura’, 21 May 2018, available at: https://iddd.org.br/videoconferencia-nao-ve-tortura.
 Forum Brasileiro de Seguranca Publica, ‘Anuario Brasileiro de Seguranca Publica’, 2020, available at: https://forumseguranca.org.br/wp-content/uploads/2020/10/anuario-14-2020-v1-interativo.pdf.