The mixed and hybrid criminal courts of Brazil: Mainstreaming restoration, rehabilitation and community justice in a human rights context
| Author | Tyrone Kirchengast,Tatiana Badaró,Lucas Pardini |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| DOI | 10.1177/0269758020916261 |
| Subject Matter | Articles |
Article
The mixed and hybrid
criminal courts of Brazil:
Mainstreaming restoration,
rehabilitation and
community justice in a
human rights context
Tyrone Kirchengast
University of Sydney, Australia
Tatiana Badar ´
o
Hermes V Guerrero Advogados, Brazil
Lucas Pardini
Tribunal de Justic¸a de Minas Gerais (TJMG), Brazil
Abstract
In Brazil, minor to mid-level criminal offences are dealt with through an inventive community
problem-solving paradigm that sees a shift from traditional court engagement between the accused
and state towards a therapeutic process that involves all participants in the justice process. This
article considers the work of the Domestic Violence and Special Justice Courts of Brazil, by
examining their use of a mixed and hybrid adversarial-inquisitorial criminal procedure that sup-
ports a participatory model of community and problem-solving justice in a human rights context.
The article argues that this hybrid and mixed approach to criminal justice allows for the main-
streaming of problem-centred and community justice through the adoption of human rights
measures that afford justice to all participants in the criminal justice process. This approach sees
the forging of relationships between traditional and non-traditional justice stakeholders, specifically
victims, police, the judiciary, defendants, the community and service providers, as a central rather
than alternative pathway to justice. Importantly, this innovative criminal procedure as a standard
response to crime provides for longer-term community building by engaging victims and the
accused through a range of informal processes that support admonishment of wrongdoing and
Corresponding author:
Tyrone Kirchengast, Sydney Law School, University of Sydney, New South Wales 2006, Australia.
Email: tyrone.kirchengast@sydney.edu.au
International Review of Victimology
2021, Vol. 27(1) 23–42
ªThe Author(s) 2020
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DOI: 10.1177/0269758020916261
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conciliation between the victim, offender and community, albeit more serious matters invariably
proceed directly to trial. Lessons from this mixed and hybrid model for adversarial jurisdictions
attempting to better integrate problem-solving justice follow.
Keywords
Brazil, criminal procedure, non-adversarial justice, restorative justice, community justice
Introduction
The last decade has seen the rise of a multitude of problem-solving courts, and in common law and
western states, most jurisdicti ons now afford accused persons s ome access to intervention or
problem-solving justice by referral or transfer from a central criminal court. Such intervention
provides therapeutic benefits that divert the accused from normative punitive options for treatment
and rehabilitation. The processes may also afford greater opportunity for the engagement of the
victim in the criminal process, and may allow for community building by engaging the accused in
alternative processes such as conferences or circles with the police, victim and community repre-
sentatives. Brazil has mainstreamed such systems for the disposal of minor to mid-level offences,
with Domestic Violence and Special Justice Courts of Brazil handling a significant number of
criminal offences apart from those most serious offences that must, as a matter of policy, proceed
direct to trial.
1
Intentional crimes against life (murder, attempted murder, assisted suicide, infan-
ticide and abortion) proceed before a seven-person jury in the main trial courts of each state, and
other serious non-fatal offences (robbery, theft, corruption, rape, money laundering, drug traffick-
ing, possession of weapons, and torture) proceed before the main trial courts constituted by a judge
sitting alone.
2
Thus, with exception of these more serious crimes, all criminal matters proceed
before the Domestic Violence and Special Justice Courts as permanent first-instance courts. The
Domestic Violence and Special Justice Courts of Brazil are thus not diversionary courts, but the
main criminal courts through which a very significant number of minor to mid-level criminal
offences are processed. These criminal courts of Brazil therefore present as an important and pace-
setting example of the mainstreaming of problem-solving and community justice, available to
victims and offenders, that seek to resolve crime in the community context in which it occurs.
Brazil is a republic of 26 states not including the federal district of Bras´ılia, with a federated
criminal justice system. Criminal procedure in Brazil is, however, mostly administered by the
states, and all states have numerous Domestic Violence and Special Justice Courts situated
throughout their jurisdiction. The criminal justice procedure of Brazil is best characterised as a
mixed and hybrid system of justice developed out of the civil European approach (as to mixed and
hybrid systems generally, see Dickinson, 2003; Kim, 2010; Kirchengast, 2010; Nouwen, 2006; see
also Council of Europe, 2017), with significant reforms from international law and procedure
through regional frameworks including the inter-American human rights system following the
American Convention on Human Ri ghts. Such procedure differs fr om the usual treatment of
victims before adversarial, common law courts, where they present as witness for the prosecution
only. Even civil law, inquisitorial processes may limit victim standing, not for want of law or
process but because the culture of prosecution lies with the state (see Braun, 2019). Yet across the
Brazilian community courts, a hybrid process affords greater access to justice for all parties. This is
because Brazilian criminal justice is open to alternative processes that depart from normative
adversarial and inquisitorial processes, and court processes invariably utilise aspects of both
24 International Review of Victimology 27(1)
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