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Supreme Court reaffirms jurisprudence about execution of the conviction after condemnation in the second instance.

By majority, the virtual plenary of the Brazilian Federal Supreme Court (STF) reaffirmed jurisprudence in the context that is possible the provisory execution in appellate decision condemnatory prounucied in recursal degree, even if they are pending appeal to the superior courts. The decision was made in the analysis of the Extraordinary Recourse with motion ARE 964246, that has recognized general repercussion. As soon, the signed thesis by the court must be applied in proceedings occurring in the other instances.

The appeal was presented in a criminal suit in which the accused was condemned to the punishment of 5 years and 4 months of reclusion, in closed regime, for the crime of robbery (article 157, paragraph 2°, subsection I and II, of the criminal code). The sentence was confirmed by the Court of Justice of São Paulo, that negated to provision appeal of the defense and determined immediate expedition of arrest warrant, to start the execution of the punishiment. The case is the same sentenced in favor of which the Habeas Corpus (HC) 126292 was tried, judged by the Plenary in February of this year. When challenging the beginning of the execution of the sentence, the defense pointed to an offense against the constitutional provision that guarantees the right of anyone to be found guilty until the final sentence of conviction, Provided in article (subsecton LVII) of the Federal Constitution. Even if appeals to the higher courts (special appeal and extraordinary appeal) do not have suspensive effect, the defense considered that the constitutional presumption of innocence until res judicata remains valid. In its manifestation, the rapporteur of the appeal Justice Teori Zavascki, declared for the recognition of the general repercussion of the matter. "It is clear that the issue under discussion transcends the subjective interest of the parties, having social and legal relevance," he said.

The Justice recalled the judgment of Habeas Corpus (HC) 126292, also of his report, in which the Supreme Court, by majority, altered the previously dominant understanding and resumed the jurisprudence that was in force in the Court until 2009, in the sense that the presumption of innocence does not prevent imprisonment resulting from a judgment which, on appeal, confirms conviction. He further emphasized that the matter was re-examined by the Plenary last month and, at the time, by rejecting precautionary measures in the Constitutional Declaratory Actions (ADCs) 43 and 44, the Justices recognized by majority that Article 283 of the Code of Criminal Procedure does not prevent the beginning of execution of the sentence after conviction in second instance.

According to the Justice Teori Zavascki, every person charged with an offense has the right to be presumed innocent until proven guilty according to law and in a public process in which all the necessary guarantees for his defense are secured. "Really , before a criminal sentence is issued, there is a need to maintain doubts about the conduct contrary to the legal system, which leads to attribution to the accused, for all intents and purposes, but especially, as regards the burden of proving the incrimination , the presumption of innocence ", he affirmed

Even the conviction, guilty verdict that results from the evidence produced in an adversarial procedure in the course of criminal proceedings, is subject to review by a court of higher hierarchy, if there is an appeal, said the rapporteur "It is in this appeal court that, usually, the examination of the facts and evidence of the case is definitively exhausted, with the determination, where appropriate, of the criminal responsibility of the accused. It is there that, in its true sense, the double degree of jurisdiction, intended for the review of a judicial decision in its entirety, is achieved by means of a large return of the matter deduced in the criminal action, whether or not it has been judged by the court of origin. The defendant is guaranteed the right of access, in freedom, to this court of second degree, respecting the precautionary prisons that may be ordered, "the Justice Teori Zavascki explained.

Except for the criminal review, is in the ordinary courts that the possibility of examining facts and evidence is exhausted and, in that respect, the very determination of the criminal responsibility of the accused, summarized the rapporteur. This is because the appeals of an extraordinary nature constitute unfolding of the double degree of jurisdiction, because they do not lend themselves to the debate of factual-probatory matters. As soon, emphasized the minister, with the judgment of the second instance exhaustion of the analysis of the matter involving the facts of the case.
In this regard, Justice Teori emphasied, the execution of the sentence pending extraordinary appeals does not compromise the essential core of the presumption of non-culpability insofar as the accused was treated as innocent in the course of the ordinary criminal proceedings, observing the rights and guarantees inherent therein, as well as respecting the evidentiary rules and the current accusatory model.

The Justice cited a study of comparative law to show that in no country in the world, after observing the double degree of jurisdiction, the execution of a conviction is suspended, awaiting a possible Supreme Court referendum. He listed, for example, the laws of England, Canada, Germany, France, Portugal, Spain and Argentina.

With these arguments, Justice Teori Zavascki expressed that there was a general repercussion in the matter and, on merit, by the dismissal of the appeal, reaffirming the case law of the Supreme Court, establishing the thesis that "the provisional execution of a condemnatory criminal judgment handed down in degree even if subject to a special or extraordinary appeal, does not compromise the constitutional principle of the presumption of innocence affirmed by article 5, subsection LVII, of the Federal Constitution. "


The statement of the rapporteur for recognition of the general repercussion was followed unanimously in the Virtual Plenary. The merit was decided directly in the same system, as it is a reaffirmation of consolidated jurisprudence in the STF. The understanding, on this point, was signed by a majority, overcoming the Justices Dias Toffoli, Ricardo Lewandowski, Marcus Aurélio and Celso de Mello. The Justice Rosa Weber didn’t speak.


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