What to Do if You're Arrested Abroad: A Practical Guide for Brazilians

You or a family member are traveling outside Brazil and suddenly... something very complicated and complex happens... You end up being, for whatever reason, arrested or detained. What to do?

Being detained in a foreign country is a distressing situation for both the Brazilian involved and their family. The lack of familiarity with local laws and the language barrier can further aggravate the situation. This article offers a practical guide on how the family should proceed, what are the basic rights of the detained Brazilian, and international rights as a tourist.

What to Do Immediately?

• Contact the Consulate or Embassy: The first action should be to contact the Brazilian consulate or embassy in the country where the detention occurred. These bodies have the function of providing consular assistance and can provide crucial information about the case.

• Inform the Family: The detained person should, if possible, inform their family in Brazil about the situation. Communication can be facilitated by the consulate or embassy.

• Hire a Lawyer in Brazil: Hiring a lawyer in Brazil is also crucial. They will coordinate the defense with the foreign lawyer, understand the legal implications in Brazil, facilitate communication between parties, assist with international treaty issues, support the family, monitor the case, prepare for the detainee's return, and liaise with Brazilian authorities.

• Hire or Contact a Local Defender: It's essential to hire a lawyer who knows local laws and can represent the detainee. The importance is not only knowledge of local laws but also the ability to petition, i.e., to legally represent in that country, except in cases of reciprocity of licenses (when a lawyer, by agreement or convention of the international bloc, can act as a legal lawyer in another country).

Basic Rights of the Detained Brazilian

We know that rights may not always be respected, but these are the rights that the foreigner has:

1. Right to Information: The detainee has the right to be informed about the charges against them in a language they understand.

2. Right to Consular Assistance: According to the Vienna Convention on Consular Relations, the detainee has the right to request that the Brazilian consulate or embassy be notified of their detention.

3. Right to a Lawyer: The detainee has the right to be assisted by a lawyer. In some countries, if the person cannot afford one, a public defender will be appointed.

4. Right to a Fair Trial: The detainee has the right to a fair trial, with all legal guarantees, including the presumption of innocence until proven guilty.

5. Protection Against Inhumane Treatment: The Universal Declaration of Human Rights and other international treaties prohibit cruel, inhuman, or degrading treatment.

6. Right to Communication: The detainee has the right to communicate with their family, lawyer, and consular authorities.

7. Right to Health: The detainee has the right to receive adequate medical care.

Step-by-Step for the Family

1. Seek Specialized Legal Assistance: Immediately seek a lawyer or firm specializing in international law and cases of detention abroad. They can provide crucial guidance in the early moments and coordinate subsequent actions.

2. Contact the Ministry of Foreign Affairs / Local Embassy: With the lawyer's help, contact the Ministry of Foreign Affairs (Itamaraty) to inform about the detention and request consular assistance.

3. Gather Documents: Gather all relevant documents, such as passport, visa, travel information, and any communication received from the detainee. Your lawyer will guide you on which documents are most important.

4. Hire a Local Lawyer: With guidance from the Brazilian lawyer, seek to hire a lawyer in the country where the detention occurred, who has experience representing foreigners.

5. Maintain Regular Communication: Establish and maintain regular contact with the consulate or embassy, lawyers (Brazilian and local), and, if possible, with the detainee.

6. Seek Support from NGOs: Some non-governmental organizations offer support to Brazilians detained abroad. Your lawyer can help identify and contact these entities.

7. Monitor the Case: With the help of lawyers, closely follow the progress of the case, participating in hearings (when possible) and staying informed about legal procedures.

8. Prepare for Possible Scenarios: Work with your lawyers to understand and prepare for different possible outcomes, including bail, trial, or possible transfer to Brazil.

Conclusion

The detention of a Brazilian abroad is a complex situation that requires quick and coordinated actions. Knowing the basic rights and procedures to be followed can make a difference in resolving the case. Consular assistance, hiring a local lawyer, and constant communication with authorities are essential steps to ensure that the detainee's rights are respected.

Essential Documents for Foreigners Traveling:

To ensure a smooth trip and be prepared for any eventuality, foreigners visiting other countries should always carry the following documents:

1. Valid Passport: The most important document, with a minimum validity of 6 months beyond the expected return date.

2. Visa (if necessary): Check the visa requirements of the destination country before traveling. Have the printed or electronic visa, as applicable.

3. Proof of Accommodation: Confirmation of hotel reservation, Airbnb, or other type of accommodation.

4. Return Ticket: Proof of air ticket or other means of transport to leave the country within the visa's expected timeframe.

5. Travel Insurance: Essential to cover medical, dental expenses, luggage loss, and other unforeseen events.

6. Proof of Financial Resources: Bank statement, international credit card, or cash to prove ability to support oneself during the trip.

7. International Driver's License (if driving): Obtained in the country of origin, allows legal driving in the destination country.

8. Copies of Documents: Keep digital and printed copies of all important documents, separate from the originals, in case of loss or theft.

9. Emergency Contacts: Write down the phone numbers of the Brazilian embassy or consulate in the destination country, as well as contacts of family members or friends in Brazil.

10. Vaccination Card (if necessary): Some countries require proof of vaccination against specific diseases. Check requirements before traveling.

Additional Tips:

• Keep original documents in a safe place, such as a hotel safe or money belt.

• Use certified copies of documents to avoid carrying originals.

• Photograph or scan all documents and send them to your own email or store in the cloud for easy access in case of emergency.

Extradition: When Can It Benefit the Brazilian Prisoner?

Extradition is a legal process by which one country requests another to surrender a person accused or convicted of a crime to be tried or serve a sentence in its territory. In the case of Brazilians imprisoned abroad, extradition can be beneficial in some situations:

1. Prison Conditions: If prison conditions in the foreign country are considered inhumane or degrading, extradition to Brazil can ensure more dignified treatment for the prisoner.

2. Proximity to Family: Extradition allows the prisoner to serve their sentence close to family and friends, facilitating emotional support and social reintegration after serving the sentence.

3. Familiar Legal System: In Brazil, the prisoner will have access to a familiar legal system, with lawyers who speak their language and understand Brazilian laws.

4. Bilateral Agreements: Brazil has extradition agreements with several countries, which facilitates the process and ensures that the prisoner's rights are respected.

Transfer of Brazilian Prisoners to Brazil

The transfer of Brazilian prisoners from abroad to Brazil is a process that allows Brazilian citizens convicted in other countries to serve the remainder of their sentences on national territory. This process is different from extradition and can benefit the Brazilian prisoner in various situations:

When Transfer Can Occur:

• Existence of Bilateral Agreement: Brazil must have a prisoner transfer agreement with the country where the Brazilian is detained.

• Prisoner's Consent: The inmate must voluntarily express the desire to be transferred to Brazil.

• Final Sentence: The sentence must be final, with no possibility of appeals in the foreign country.

• Minimum Sentence Time: Generally, there must be a minimum period of sentence to be served (often one year).

• Dual Criminality: The act for which the Brazilian was convicted must also be considered a crime in Brazil.

Benefits of Transfer:

• Family Proximity: Allows the prisoner to serve the sentence closer to family and friends, facilitating visits and emotional support.

• Cultural and Linguistic Familiarity: The prisoner will be in an environment where they understand the language and culture, reducing the stress of detention.

• Better Prison Conditions: In some cases, prison conditions in Brazil may be better than in the country where the prisoner is located.

• Preparation for Reintegration: Facilitates preparation for reintegration into Brazilian society after serving the sentence.

• Access to Rehabilitation Programs: The prisoner may have access to education and work programs more suitable to the Brazilian reality.

Transfer Process:

1. Request: The prisoner or their family must request the transfer to the Brazilian Ministry of Justice.

2. Request Analysis: The Ministry of Justice analyzes whether the case meets the requirements of the bilateral agreement.

3. Negotiation: If approved, negotiation with the foreign country begins.

4. Approval: Both countries must approve the transfer.

5. Transport: After approval, the prisoner's transport to Brazil is organized.

6. Sentence Adaptation: Brazilian Justice adapts the sentence according to national legislation, without increasing it.

Important Observations:

• Transfer is not an automatic right, but a possibility subject to approval by both countries involved.

• The process can be lengthy, depending on the complexity of the case and cooperation between countries.

• The prisoner will continue serving the sentence imposed by the foreign country, just on Brazilian territory.

This option can be very beneficial for Brazilian prisoners abroad, especially in countries with precarious prison systems or very different culturally. However, it is a complex process that requires patience and persistence from the prisoner and their family.

 CURIOSITIES

The complexity of international cooperation on legal issues varies significantly between countries. Some of the countries considered most challenging for international cooperation, especially in cases of foreign detainees, include:

African Countries:

Burundi: Political instability and frequent political violence. Fragile judicial system with a history of corruption. Limited resources and infrastructure to ensure justice and proper treatment of detainees.

Chad:

• Consular Access: Communication and access difficulties for consular representatives.

• Internal Conflicts: Regional conflicts and presence of armed groups.

• Fragile Legal System: Limited judicial infrastructure and lack of resources.

Eritrea: Authoritarian government with little transparency. Limited diplomatic relations with many countries. Opaque and often arbitrary legal system.

Equatorial Guinea: Consular access difficulties and lack of transparency in legal processes. Common political repression and human rights violations. Opaque judicial system subject to political interference.

Libya:

• Civil Conflict: Political instability and presence of multiple armed factions.

• Security: High-security risk and consular access difficulties.

• Fragmented Judicial System: Lack of a unified and functional judicial system.

Mali:

• Armed Conflicts: Presence of terrorist groups and regional conflicts.

• Security: High-security risk for foreigners and consular access difficulties.

• Fragile Judicial System: Developing judicial infrastructure and lack of resources.

Nigeria: Widespread corruption in the judicial system. Security challenges in some regions due to extremist groups. Complex legal system that includes common law, Islamic law (Sharia), and customary law.

Central African Republic: Context of armed conflict and humanitarian crisis. Extreme communication difficulties and access to regions controlled by armed groups. Virtually non-existent judicial system in various areas of the country.

Democratic Republic of the Congo (DRC):

• Armed Conflicts: Presence of armed groups and regional conflicts.

• Corruption: Judicial system frequently influenced by corruption.

• Infrastructure: Lack of adequate infrastructure for legal processes.

Somalia:

• Lack of Legal Infrastructure: Fragmented and often non-existent judicial system in some regions.

• Political Instability: Ongoing civil conflict and presence of terrorist groups like Al-Shabaab.

• Security: High-security risk for foreigners and consular access difficulties.

Sudan: Recurring coups and political instability. Complex legal system, with Sharia (Islamic law) applied in some regions. Common human rights violations and consular access difficulties.

South Sudan:

• Consular Access: Communication and access difficulties for consular representatives.

• Civil Conflict: Ongoing ethnic and political conflicts.

• Fragile Legal System: Developing judicial infrastructure and lack of resources.

Zimbabwe:

• Corruption: Significant presence of corruption in the legal system.

• Political Instability: History of political and economic instability.

• Influenced Judicial System: Judicial system frequently influenced by political considerations.

American Countries:

Haiti: High levels of crime and violence in some areas. Chronic political and social instability. Fragile judicial system with limited resources.

Mexico: Faces challenges related to organized crime and corruption, which can affect security and access to justice.

Venezuela: Political and economic crisis affecting the functioning of the judicial system. Communication difficulties due to the economic crisis. Political and economic instability. Reports of arbitrary detentions and lack of due process. Judicial system considered non-independent.

Arab Countries:

Saudi Arabia: Significant differences in human rights standards. Restrictions on consular access in some cases. Legal system based on strict interpretation of Islamic law.

Qatar: Has strict social laws that must be respected by foreigners, including the criminalization of homosexuality.

Egypt:

• Arbitrary Detentions: Reports of arbitrary detentions and long pre-trial detention periods, even for minor cases.

• Consular Access Restrictions: Consular access can be hindered or denied in some cases, especially those considered politically sensitive.

• Complex Legal System: Egypt has a legal system based on a mix of civil, Islamic, and military laws, which can be challenging for foreigners to understand.

United Arab Emirates: Has strict laws and social customs that can lead to the detention of foreigners, especially regarding public displays of affection, inappropriate dress, and alcohol consumption in public.

Asian Countries:

Cambodia: Widespread corruption in the legal system. Limitations on access to adequate legal representation. Judicial system frequently influenced by political considerations.

China: Significant cultural and linguistic differences. Significant restrictions on consular access in sensitive cases. Opaque legal system frequently influenced by political considerations.

North Korea: Lack of transparency in the legal system. Limited diplomatic relations with most Western countries. Closed political system.

Philippines:

• Death Penalty: It is important to note that the Philippines has the death penalty for certain crimes, making consular assistance and ensuring a fair trial even more crucial.

• Public Safety: The country faces crime problems, including kidnappings and terrorism in some regions, which can hinder assistance to Brazilians at risk.

• Developing Legal System: The Philippines still faces challenges in its legal system, with cases of corruption, slow bureaucracy, and lack of resources in some areas.

India:

• Prison Conditions: Prison conditions in India are generally poor and overcrowded, which can be particularly challenging for foreigners.

• Cultural and Linguistic Diversity: India is a country with great cultural and linguistic diversity, which can hinder communication and understanding of legal procedures.

• Complex and Slow Legal System: India has a complex and overburdened legal system, which can result in long legal processes and significant delays.

Iran: History of detaining foreigners for political reasons. Legal system based on Islamic law (Sharia). Political tensions with many Western countries.

Laos: Lack of transparency in legal processes. Underdeveloped legal infrastructure in many areas. Judicial system with limited independence.

Myanmar (Burma): History of arbitrary detentions. Political instability and ethnic conflicts. Legal system in transition and sometimes unpredictable.

Pakistan: Security challenges that can affect consular access. Political instability in some regions. Complex legal system with tribal influences in certain areas.

Papua New Guinea: High levels of violence and organized crime in some areas. Limited judicial infrastructure outside urban centers. Complex legal system incorporating customary laws.

Thailand: Has severe laws against drugs and lèse-majesté crimes (offenses against the royal family), which can result in severe penalties.

Turkmenistan: Difficulties in accessing consular assistance. Severe restrictions on freedom of movement and expression. Authoritarian regime with little transparency in the legal system.

Uzbekistan: History of arbitrary detentions and human rights violations. Restrictions on consular access in sensitive cases. Judicial system with limited independence.

Vietnam: Judicial processes can be opaque and politically influenced. Significant restrictions on freedom of expression and association. Legal system based on the socialist model, with strong state influence.

European Countries:

Belarus: History of detentions for political reasons. Restrictions on freedom of the press and expression. Judicial system heavily influenced by the executive power.

Russia: Cases of detentions for political reasons. Complex and sometimes unpredictable legal system. Geopolitical tensions with Western countries.

Turkey: Unstable political situation and increasing restrictions on human rights and freedom of the press require caution.

Factors Contributing to Complexity:

• Significant differences in legal systems

• Linguistic and cultural barriers

• Political or diplomatic tensions with other countries

• Lack of bilateral agreements on legal cooperation

• Non-independent or politically influenced judicial systems

• Restrictions on consular access

• Political instability or internal conflicts

It is important to note that the situation in each country can change rapidly due to political developments or changes in international relations. Additionally, the experience may vary depending on the specific nature of the case and the bilateral relations between the detainee's home country and the country where the detention occurred.

Consulted Legislations

For the preparation of this document, the following legislations were consulted:

• Vienna Convention on Consular Relations (1963)

• Constitution of the Federative Republic of Brazil (1988): Article 5, items LXIII (right to family and lawyer assistance) and LXIV (right of the detainee to identify those responsible for their arrest)

• Law No. 13,445, of May 24, 2017 (Migration Law): Article 7, which establishes the rights of migrants and visitors

• Decree No. 7,030, of December 14, 2009: Promulgates the Vienna Convention on the Law of Treaties

• Law No. 8,906, of July 4, 1994 (Statute of the Advocacy and OAB): Article 7, which establishes the rights of lawyers

• Decree No. 592, of July 6, 1992: Promulgates the International Covenant on Civil and Political Rights Article 14, which deals with judicial guarantees

• Decree No. 678, of November 6, 1992: Promulgates the American Convention on Human Rights (Pact of San José of Costa Rica) Article 8, which deals with judicial guarantees

• Ordinance No. 212, of April 30, 2008, of the Ministry of Foreign Affairs: Internal Regulations of the State Secretariat of Foreign Affairs Section on consular assistance to Brazilians abroad

• Law No. 13,344, of October 6, 2016: Provides for the prevention and repression of internal and international human trafficking Relevant for cases of Brazilians detained abroad in trafficking situations

• Decree No. 9,199, of November 20, 2017: Regulates the Migration Law Articles related to the protection of Brazilians abroad