A hearing by videoconference is better than no hearing at all
In the shadow of a pandemic that has reshaped nearly every human institution, Brazil's Supreme Court confronted a question as old as justice itself: what does it mean to truly see the person before you? On July 1st, 2021, six of the court's justices voted to permit custody hearings by videoconference, temporarily overriding a 2019 law that had explicitly forbidden the practice. The majority held that a hearing through a screen is better than no hearing at all — but the two dissenters reminded the court that the eyes of justice, when filtered through glass, may miss what matters most.
- A pandemic forced Brazil's judiciary into an impossible choice between physical safety and the irreplaceable intimacy of a judge looking a detainee in the eye.
- The 6-2 ruling cracked the court's bench, exposing a fault line between pragmatic emergency governance and the foundational principle that justice requires human presence.
- Dissenters pointed to over 20,000 in-person hearings already conducted safely, arguing the emergency rationale had quietly dissolved while the legal exception quietly expanded.
- At the heart of the dissent lies a warning: custody hearings are the judiciary's first and often only chance to detect torture, and a screen may be precisely what institutional violence needs to go unseen.
- The ruling suspends the 2019 anti-crime law's ban on virtual hearings for now, but the temporary fix casts a long shadow over what judicial procedure might look like long after the virus recedes.
Brazil's Supreme Court voted 6-2 on July 1st, 2021, to allow custody hearings to proceed by videoconference during the COVID-19 pandemic — a decision that temporarily overrides a provision in the country's 2019 anti-crime law explicitly banning the practice. The majority, led by relator Justice Nunes Marques, framed the choice as a pragmatic defense of due process: in a pandemic, a virtual hearing better honors a detainee's constitutional rights than no hearing at all. Transporting detainees, gathering court staff, lawyers, and judges in a shared space — all of it carried viral risk that remote proceedings could reasonably reduce.
But the two dissenters, Justices Lewandowski and Fachin, refused to accept that framing without challenge. Lewandowski noted that more than 20,000 in-person hearings had already been conducted across Brazil since the pandemic began, each following biosafety protocols — evidence, he argued, that the emergency justification had worn thin. For him, the custody hearing's core purpose is to place a detained person physically before a judge, enabling a direct, unmediated assessment of whether their detention is lawful.
Fachin pressed the point further, arguing that custody hearings serve a function no procedural workaround can replicate: they are the judiciary's primary instrument for detecting torture and confronting institutional violence. The encounter between judge and detainee, he wrote, must be a genuine search for human dignity — and that search cannot be conducted through a screen.
The ruling leaves the deeper question unresolved. What began as an emergency measure now raises the prospect of permanence, and with it, the unsettling possibility that the convenience of virtual proceedings may outlast the crisis that made them necessary.
Brazil's Supreme Court has sided with emergency measures that will allow custody hearings to proceed by videoconference during the pandemic, a decision that splits the bench and raises hard questions about how justice gets done when a judge cannot sit across from a detainee in the same room.
Six of the eleven justices voted in favor of the measure on Thursday, July 1st, 2021. The relator, Justice Nunes Marques, had already issued a preliminary ruling on Monday allowing virtual hearings to continue while COVID-19 remained a threat. The majority—Marques, Marco Aurélio, Luiz Fux, Cármen Lúcia, Alexandre de Moraes, and Dias Toffoli—chose to uphold that decision. Two justices dissented. The court was reviewing a constitutional challenge to a provision in Brazil's 2019 anti-crime law that explicitly forbade videoconference custody hearings.
Marques framed the choice as pragmatic. In the context of a pandemic, he argued, a virtual hearing is better than no hearing at all. The virus had made in-person proceedings risky for everyone involved: the detainee, the guards transporting them, court staff, lawyers, prosecutors, judges. A videoconference, he reasoned, allows the court to verify the legality and necessity of detention while keeping all parties safer. He grounded his position in constitutional protections—the right to physical and moral integrity, the guarantee of due process—and suggested that remote proceedings come closer to honoring those rights than abandoning hearings altogether.
The dissenters saw the issue differently. Justice Ricardo Lewandowski pointed to data from the custody hearing system showing that at least 20,000 in-person hearings had taken place across Brazil between the start of the pandemic and June 2021. If courts had managed that volume while following proper biosafety protocols, he argued, there was no longer a genuine emergency justifying the departure from the law. More fundamentally, Lewandowski contended that the purpose of a custody hearing—to bring a detained person before a judge so the judge can see them directly, listen carefully, and assess whether their detention is lawful—cannot be adequately served through a screen.
Justice Luiz Edson Fachin made a related but sharper point. He emphasized that custody hearings exist for a reason beyond routine procedure. They are a critical tool for detecting torture and other mistreatment while someone is in police or prison custody. They represent the judiciary's first real opportunity to confront institutional violence and monitor police conduct. The encounter between a judge and a detainee, Fachin wrote, must be a genuine search for respect for human rights. That search, he implied, demands physical presence.
The ruling temporarily suspends the 2019 law's ban on virtual hearings, allowing them to continue as long as the pandemic persists. But the decision leaves unresolved a deeper tension: whether the convenience and safety of videoconference proceedings might outlast the emergency that justified them, and whether a court can adequately protect someone's rights when it cannot see them face to face.
Notable Quotes
A videoconference hearing is the measure most capable of ensuring respect for detainees' physical and moral integrity while protecting the health of all involved—guards, court staff, lawyers, prosecutors, judges, and the detainee themselves.— Justice Nunes Marques
Custody hearings exist to detect torture and mistreatment, to confront institutional violence, and to monitor police conduct. The encounter between a judge and a detainee must be a genuine search for respect for human rights.— Justice Luiz Edson Fachin
The Hearth Conversation Another angle on the story
Why did the majority think videoconference hearings were acceptable when the dissenters had evidence that in-person hearings were already happening?
Because the majority saw it as a choice between two different goods. Yes, 20,000 hearings happened in person. But the question was whether they had to, or whether the pandemic gave the court permission to choose a safer path that still preserved the core function of the hearing.
And what is that core function, in the dissenters' view?
It's not just about checking a box—verifying that detention is legal. It's about a judge being able to see a person, really see them, to detect signs of torture or abuse that might not show up on a video call. It's about the judge's presence as a check on police power.
So the majority is saying safety trumps that direct contact?
Not exactly. They're saying that in a pandemic, you have to choose between no hearing and a remote hearing. And a remote hearing, even if imperfect, is better than leaving detainees without any judicial oversight at all.
But couldn't courts have continued doing in-person hearings with precautions, as Lewandowski showed they were already doing?
They could have. And that's where the real disagreement lies. The dissenters think the data proved it was feasible. The majority seems to have thought that even if it was possible, the pandemic gave them grounds to choose the less risky option.
What happens when the pandemic ends?
That's the open question. This ruling is temporary, tied to COVID-19. But once you've shown that remote hearings work logistically, it becomes harder to argue they should never be used again.