Right to Protective Treatment

In addition to the victim's right to be informed and supported, the victim should be protected as much as possible during the criminal process. Specifically, repeated confrontations with the perpetrator, the crime report, and their descriptions should be avoided.

Questions about the victim's private life are only allowed if they cannot be avoided in the process. In certain cases, the public may be excluded from the courtroom while the victim is being heard. In some cases, even the defendant may be excluded from the courtroom while the victim is heard, or the victim’s hearing can be conducted via video conference. In this scenario, the victim doesn’t need to be near the courtroom. The hearing of minor victims should typically be special, with no direct questions asked by the parties. The judge receives all questions and forwards them to the court psychologist, who, in a separate room, formulates them in a way that preserves the victim's dignity and psychological integrity.

Victims and their families have the right to protection against acts of retaliation, intimidation, or continuation of criminal activity against them. They have the right to be protected from acts that may jeopardise their life, physical integrity, emotional and psychological well-being, and dignity while giving testimony.

Whenever authorities consider there to be a serious threat of revenge acts or strong evidence that the victim’s safety and privacy may be severely and intentionally disturbed, an adequate level of protection should be ensured for the victim, as well as their family or close associates.

Victims can always request to be granted the status of a specially protected victim, meaning their data will not be transferred to the criminal process, with access restricted to the judge, attorney, Public Prosecutor, and court officers.

Security Rights

The right to protection includes specific rights that will be addressed in the following topics.

During the investigation, the victim’s inquiries should proceed without unjustified delays after reporting a crime to competent authorities.

Inquiries and medical examinations should only be conducted if strictly necessary for the purposes of the criminal investigation and should be minimised.

Victims may be accompanied by their legal representative and a person of their choice unless there is a reasoned decision to the contrary.

Victims have the right to protection and security in the criminal process.

In particular, crime victims should be protected from new threats or victimisation by the offender or third parties. The victim''s privacy should also be protected.

SPECIAL PROTECTION NEEDS

It must be determined in the process if the victim has special protection needs. This is done by evaluating the victim’s personal characteristics and the type and facts of the crime. Specifically, victims of terrorist acts, human trafficking, sexual crimes, or violent relationships should be considered. Children are always classified as having special protection needs. Victims with special protection needs have, for example, the right to appropriate rooms provided for the hearing or a hearing by video.

PROTECTION AGAINST VIOLENCE

The Maria da Penha Law, the new law regulating protective measures in domestic violence cases, the Henry Borel Law, the Elderly Statute and the law criminalising stalking protect individuals who have become victims of violence or persecution.

The judge can prohibit the offender from contacting and approaching the victim or entering or staying in certain places. These restraining orders aim to protect the victim from further violence. The judge may, for example, order the following:

not to enter the victim’s house,
stay a certain distance (determined by the court) from the victim’s house,
not to be present at locations where the victim regularly spends time,
not to contact the victim,
not to provoke a meeting.

Protective measures can be issued if the offender:

intentionally caused personal injury, violated the victim’s freedom, or
threatened to do so, or
intentionally and illegally entered the victim’s house or property, or
intentionally subjected the victim to intolerable harassment.

Protective measures should be requested at the court dealing with domestic and family violence, the special criminal court, or the common criminal court. In the first case, they can be requested before the judicial authority, and after the Public Prosecutor is heard, the judge will decide. The request can be submitted at the local court registry through a petition and informally in writing or verbally. The offender must be notified of the granting of the protective measure. Non-compliance may even constitute a requirement for the granting of preventive detention. It is important to note that the protective measure can be autonomous, that is, unrelated to the existence of a criminal process.

Right to No Contact with the Investigated or Accused

Victims have the right not to encounter or contact the accused, notably in courthouse buildings and police stations. This includes, whenever possible, having separate entry and exit doors and waiting areas from those used by the accused and their family or associates.

Unfortunately, many Brazilian courts are neither prepared nor able to fully ensure this right. However, if the victim has valid reasons to avoid contact with the accused, they should insist, as far as possible, on being provided with an alternative entrance and exit and a separate waiting area from that used by the accused and their family.

Right to Privacy

Victims and their families have a right to privacy during the criminal process.

The public nature of the process does not imply that private life data, which aren't evidence, should also be public.

In sexual offence or human trafficking cases, the public cannot attend procedural acts. In these cases, as well as in crimes against honour or privacy, the media cannot publish the victims' identities unless expressly consented to by the victims.

Program for Protecting Victims and Witnesses in Atypical Cases

Whenever a victim or another witness's life, physical or psychological integrity, freedom, or significantly valuable assets are endangered due to their contribution to the investigation and proof of the crime, they can request the application of protective measures. The following protective measures are exceptional and can only be applied if they are deemed necessary and suitable for protecting individuals and achieving the process's objectives:

Concealment: The court may decide to conceal a witness's image during public procedural acts based on circumstances indicating a high risk of witness intimidation.
Teleconference: For serious crimes, and whenever strong protection reasons justify it, teleconferencing is permissible. The witness can testify in their preferred location, possibly with image concealment.
Identity Confidentiality: The identity of the victim or other witnesses can be confidential during some or all phases of the process. Testimony can be given with concealed images or via teleconference.
Specific Security Measures: For serious crimes, victims or other witnesses may benefit from specific security measures, such as state-provided transportation for court appearances, police protection, or a change in residence.
Special Protection Program: For some of the most severe crimes, witnesses, their spouses, kin, siblings, or close associates can opt for a special security program under certain conditions. This program can include various administrative protective and supportive measures, including assigning a “new identity”, changing physical appearance, providing new housing (domestically or abroad), or granting a living allowance for a limited period.

Measures of Deprivation or Restriction of Freedom

Protection and security for victims can be ensured by applying one or more measures of deprivation or restriction of freedom to the accused, also known as coercive measures.

Preventive detention can be applied during the criminal process if there's a risk of escape, danger to evidence, threat to public or economic order, need to apply criminal law, or for the convenience of the criminal procedure. This may or may not originate from the conversion of an arrest of a flagrant crime if its requirements are met. There are other coercive or precautionary measures besides imprisonment, for example:

Term of identity and residence: The accused must not change their indicated residence without notifying the judicial authority.
Periodic presentation: The accused must regularly appear in court to report and justify their activities.
Prohibition and imposition of conduct: For example, the suspect may be prohibited from contacting the victim.
Obligation to stay at home, with or without electronic monitoring.

If a victim believes that a coercive measure is necessary for protection, they can report the situation to the Public Prosecutor or the police authority, who may request it from the competent court. There is no rule mandating the victim's hearing regarding the necessity of applying or revoking coercive measures. The victim can directly approach the responsible authority or, during the process, do so through an attorney if they constitute an assistant to the prosecution.