The specific case that motivated the appeal involves the Public Prosecutor’s Office of the state of Rio Grande do Sul, which challenged the decision of the state Court of Justice. The court acquitted a woman accused of drug trafficking, considering that the evidence was obtained illegally, since she was subjected to the humiliating search when she tried to enter the central prison of Porto Alegre carrying 96 grams of marijuana on her body to give to her detained brother.

The rapporteur, Minister Edson Fachin, previously reaffirmed the vote pronounced in the virtual session, on the illegality of the search of people. For the official, the humiliating intimate search of prison visitors is a violation of human dignity and the fundamental rights to integrity, privacy and honor. He stressed that Law 10,792/03 determines the use of electronic equipment for entry control such as metal detectors and scanners, and that the lack of these devices does not justify the invasive practice.

Fachin recognized the legitimacy of personal searches for security, but considered the requirement to remove clothing and inspect body cavities inadmissible, even in the face of well-founded suspicions.

Judge Alexandre de Moraes, who introduced the controversy, expressed his position regarding the legitimacy of the measure. In his intervention, De Moraes highlighted the risks of prohibiting effective inspection methods.

According to the judge, superficial measures are ineffective and the restriction of searches can lead to the suspension of visits and rebellion. “If there is something that generates rebellion, it is when visits are prevented,” he said. He also stressed that all arrests in prisons occur by concealment under clothing or in body cavities, which reinforces the need for efficient surveillance.

The minister also proposed additions to the suggested thesis in order to allow intimate searches in exceptional situations, such as when it is impossible to use body scanners, x-ray machines and metal detector portals. He also advocated that intimate searches to enter penitentiary centers be motivated for each specific case and depend on the consent of the visitor.

The case already had five votes in favor of prohibiting the practice on the grounds that it violates the principles of human dignity and the protection of privacy, honor and image.

jrr/llp/arc/ocs