Finding out that you or a family member has been arrested, is under investigation, or is facing criminal proceedings usually brings a mix of urgency, fear and many questions about what to do next. This guide explains, in accessible language, the main rights guaranteed by Brazil's Constitution and Code of Criminal Procedure (CPP) to anyone who is under arrest or under investigation — so you can act with more clarity in this moment.
Nothing here replaces guidance from a lawyer about your specific case: deadlines, strategies and possible outcomes vary according to the details of each situation.
Fundamental rights of a person under arrest or investigation
Brazil's Federal Constitution guarantees a series of protections to anyone under arrest or investigation, regardless of the severity of the accusation:
- Presumption of innocence: no one can be considered guilty before a final, unappealable criminal conviction;
- Right to remain silent: the person is not required to answer questions or produce evidence against themselves, and silence cannot be interpreted as a confession;
- Right to legal assistance from the moment of arrest, including during police interrogations;
- Right to be informed of their rights and of the reason for the arrest or investigation;
- Right to physical and moral integrity, including the prohibition of torture and degrading treatment;
- Right to have the arrest reported to family or a designated person, and to a lawyer.
In-flagrante arrest: what it is and what happens afterward
An in-flagrante arrest (prisão em flagrante) occurs when a person is arrested while committing a crime, immediately after committing it, or when they are pursued or found shortly afterward with objects indicating their involvement in the act. After the arrest, the police authority must draw up the arrest report (auto de prisão em flagrante) and immediately notify the competent judge, the arrested person's family (or a person designated by them), and the Public Defender's Office, when there is no retained lawyer.
An in-flagrante arrest, by itself, does not mean conviction — it is an initial measure that will be reviewed by a judge shortly afterward, at the custody hearing.
Custody hearing: what it is and why it matters
The custody hearing (audiência de custódia) is the presentation of the arrested person to a judge, generally within 24 hours of the arrest, so that the legality of the arrest can be assessed. At this hearing, the judge may:
- Release the person if any illegality is found in the procedure;
- Grant provisional release, with or without alternative precautionary measures (such as periodic appearance in court or the use of an electronic ankle monitor);
- Convert the in-flagrante arrest into pretrial detention (prisão preventiva), when the legal requirements for keeping the person in custody are present.
Having a lawyer present at this hearing is essential to present technical arguments about the legality of the arrest and the real need to keep the person in custody.
The 24-hour deadline for the custody hearing derives from constitutional interpretation and from National Council of Justice (CNJ) rules on the subject. [CASE LAW TO CONFIRM]
In-flagrante, pretrial and temporary detention: what's the difference?
It's common to confuse the different types of custody provided for in criminal procedure law:
- In-flagrante arrest (prisão em flagrante): occurs at the moment of the crime or shortly afterward, without the need for a prior court order;
- Pretrial detention (prisão preventiva): ordered by a judge during the inquiry or the proceedings, when requirements such as risk to public order, to the criminal investigation, or to the application of criminal law are present;
- Temporary detention (prisão temporária): ordered for a fixed period, usually during the investigation stage, for specific cases provided for by law.
Each type has its own legal grounds, time limits and ways of being challenged — a lawyer can assess which one applies to the specific case and what defense options are available.
Rights of a person under investigation during a police inquiry
The police inquiry (inquérito policial) is the investigative phase that precedes (or not) a criminal action. Even without the full adversarial process that applies at this stage, the person under investigation retains important rights, such as the right to be assisted by a lawyer, the right not to produce evidence against themselves, and the right to access the evidence already documented in the case file, subject to legal exceptions related to ongoing investigative measures.
Being under investigation doesn't necessarily mean formal charges or a criminal case will follow — the inquiry can be closed if there isn't sufficient evidence. Even so, it's advisable to seek legal guidance from this stage onward, especially in more complex cases.
Habeas corpus: when it can be used
Habeas corpus is a constitutional guarantee that protects the right to freedom of movement. It can be used whenever someone suffers, or is at imminent risk of suffering, unlawful violence or coercion against their liberty, such as in cases of an arrest without proper grounds, excessive delay in the investigation or proceedings, or illegalities in the arrest itself.
What to do immediately after an arrest
- Try to identify where the person is being held (police station, detention facility);
- Hire or contact a lawyer as soon as possible — the earlier, the greater the chance of effective action, including at the custody hearing;
- Avoid giving statements, signing documents or making agreements without prior legal guidance;
- Gather documents and information relevant to the case and to the person under arrest;
- Stay calm and avoid publicly disclosing details of the case before speaking with the lawyer.
How a criminal defense lawyer can help
A lawyer specialized in criminal law can act from the very first moment of the arrest — including at the custody hearing —, monitor the police inquiry, assess the viability of a habeas corpus petition, build the technical defense strategy throughout the proceedings, and advise on deadlines and steps at each stage, always based on the real circumstances of the case.
If you or a family member is going through one of these situations, contact our team. We prioritize a fast response for urgent cases.