(Oct. 6, 2016) On September 26, 2016, Decree No. 8,858 was enacted to regulate the use of handcuffs in the Brazil. (Decreto No. 8.858 de 26 de Setembro de 2016, PLANALTO.) The decree follows the guidelines established in articles 1(III) and 5(III) of the Brazilian Constitution, which provide for the protection and promotion of human dignity and the prohibition of subjecting others to inhuman and degrading treatment; Resolution 2010/16 of July 22, 2010, of the United Nations on the treatment of women prisoners and non-custodial measures for women offenders (Bangkok Rules); and the Pact of San Jose, which determines the humane treatment of prisoners, especially women in a vulnerable condition. (Id. art. 1; Constitution of the Federative Republic of Brazil (Oct. 5, 1988, PLANALTO; Regras das Nações Unidas para o tratamento de mulheres presas e medidas não privativas de liberdade para mulheres infratoras (Regras de Bangkok) [United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)] (July 22, 2010), Ministry of Justice website; Decreto No. 678 de 6 de Novembro de 1992 – Promulga a Convenção Americana sobre Direitos Humanos (Pacto de São José da Costa Rica), de 22 de novembro de 1969 [Decree No. 678 of November 6, 1992 – Enacts the American Convention on Human Rights (Pact of San José, Costa Rica)], PLANALTO.)
According to article 2 of Decree No. 8,858, the use of handcuffs is permitted only in cases of resistance by and established fear of flight of the prisoner or a potential threat to the prisoner’s physical integrity or the integrity of others that could be caused by the arrested person or by third parties. In exceptional cases, this rule may be waived provided that the waiver is in writing and issued by the appropriate authority.
Article 3 provides that the use of handcuffs on women prisoners is prohibited in any unit of the national prison system when a woman is in labor, during the transportation of a mother-to-be from the prison unit to a hospital, after the birth of a child, and during the period of hospitalization following birth.