E/CN.4/2001/66/Add.2
page 36
Republic said that the prosecutor in charge on the initial criminal investigation may sometimes
also be in charge of the one regarding allegations that the confessions had been obtained
unlawfully. He admitted that, even though there might be a conflict of interest, this situation
often occurs in small places.
C. Provisional (pre-trial) detention
103.
There are two kinds of provisional detention.
1. Preventive detention
104. An order of preventive detention (prisão preventiva) may be issued by a judge at the
official request of a police authority or a public prosecutor when the two following conditions
are met: (a) there is material evidence that a crime was committed; and (b) there is sufficient
evidence of the authorship of the crime. The detention of the suspect must also be necessary to
(a) safeguard public order; (b) safeguard economic order; (c) the securing of evidence; or
(d) ensure that the suspect will not abscond.15 Article 10 of the Code of Criminal Procedure
provides that the police inquiry must be completed within 10 days of the arrest when the suspect
is under preventive detention or in detention following an arrest in flagrante.16
2. Temporary detention
105. Temporary detention (prisão temporária, also called prisão para investigação) has to be
decreed by a judge at the official request of a police authority or a public prosecutor within a
period of 24 hours of the receipt of the official request.17 The judge may, at his/her own
discretion or at the request of the public prosecutor or the lawyer, determine that a detainee must
be brought before him/her, request information and clarification from the police and order an
examination of the corpus delicti.18 After temporary detention has been ordered, a detention
warrant must be issued, a copy of which is to be delivered to the prisoner as a notification of the
charges against him/her (nota de culpa).19 It is the Special Rapporteur’s understanding that the
use of the term nota de culpa by both detainees and civil society referred in most cases to a
confession, and not to the notification of charges as provided for in the law. The Special
Rapporteur has therefore retained the terminology used by his interlocutors, in particular with
respect to interviews of detainees (see annex).
106. “Temporary detention shall be applicable when: (a) it is essential for police
investigations; (b) the defendant does not have a fixed residence or does not provide required
elements for the clarification of his/her identity; and (c) there are well-founded reasons, in
accordance with any proof admitted in the criminal legislation, that the defendant committed or
participated in the following crimes: wilful homicides (article 121 of the Penal Code),
kidnapping or private imprisonment (art. 148), robbery (art. 157), extortion (art. 158), extortion
through kidnapping (art. 159), rape (art. 213), indecent exposure (art. 214), violent kidnapping
(art. 219), epidemic resulting in death (art. 267), poisoning of drinking water or of food products
or medical substances resulting in death (art. 270), participation in gangs or criminal groups
(art. 288), genocide (articles 1 to 3 of the Law No. 2,899 of 21 October 1967), drug trafficking
(article 12 of Law No. 6,368 of 21 October 1976) and crimes against financial system (Law
No. 7,492 of 26 June 1986). It is reported that the jurisprudence and opinio juris have
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