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1st panel dismisses pre-trial detention of accused of abortion

The first chamber of the Brazilian Federal Supreme Court (STF) dismissed the preventive custody of E.S. and R.A.F., denounced by the Public Prosecution of the State of Rio de Janeiro for the alleged practice of the crime of abortion with the consent of the pregnant woman and formation of a gang (articles 126 and 288 of the Penal Code). The decision was made on Tuesday (29) at the Habeas Corpus trial (HC) 124306. According to the vote of the justice Luis Roberto Barroso, who reached the majority, besides not being present in the case the requirements that authorize the arrest, the criminalization of abortion is incompatible with several fundamental rights, including sexual and reproductive rights and women's autonomy, the physical and mental integrity of the pregnant woman and the principle of equality.

After the arrest in flagrant, in 2013, the first degree court granted the provisional release to the accused, considering that the infractions would be of medium offensive potential and with relatively soft penalties. The Court of Justice of Rio de Janeiro (TJ-RJ), however, received an appeal from the Public Prosecution of Rio de Janeiro and ordered the preventive detention, maintained by the Superior Court of Justice (STJ). In 2014, the HC's rapporteur on the Supreme Court, justice Marco Aurélio, granted a preliminary injunction to revoke the arrest, later extended to the other co-defendants.

In the HC, the defense alleged that the necessary requirements for the detention order were not present, because the accused are primary defendants, with good background and with work and permanent residence in Duque de Caxias (RJ). He also maintained that the measure would be disproportionate, as possible condemnation could be carried out in an open regime.

The merit of the request began to be tried in August, when justice Marco Aurélio voted for the HC grant, confirming his injunction. According to the rapporteur, the freedom of the accused does not pose a risk to the process, "so much that the criminal investigation has been carried out normally", with everyone attending the last investigation and trial hearing in August 2015, when they were already released. At the time, a request to see the case more deeply was made for the justice Luís Roberto Barroso.

In the session on Tuesday, justice Barroso presented his vote review in the meaning of not acceptance of the HC, because it is a substitute for appeal, but for granting the order of office, extending it to the co-defendants. Justices Edson Fachin and Rosa Weber followed up on this understanding and Justice Luiz Fux granted the ex officio HC, restricting itself to revoking pre-trial detention.


In examining the issue, justice Barroso pointed out that, like the rapporteur's already had pointed, the pre-trial detention order did not indicate individualized elements that demonstrate the need for precautionary custody or risk of delusional reiteration for patients and co-defendants limiting to invoke generally the abstract gravity of the crime of "provoking abortion with the consent of the pregnant woman". He pointed out, however, another reason that led to the granting of the order.

Barroso pointed out that it is necessary to examine the very constitutionality of the criminal type imputed to those involved. "In the case analyzed here, the criminal classification of the crime of voluntary abortion that are in articles 124 and 126 of the Criminal Code, which punish both the abortion provoked by the pregnant woman and third parties with the consent of the pregnant woman, he observed.

According to the justice, the protected legal good (the potential life of the fetus) is "obviously relevant", but the criminalization of abortion before the end of the first trimester of pregnancy violates several fundamental rights of women, and does not observe sufficiently the principle of proportionality. Among the legal rights violated, he pointed to women's autonomy, the right to physical and mental integrity, women's sexual and reproductive rights, gender equality - in addition to social discrimination and the disproportionate impact of criminalization on poor women.

He warned, however, that it was not a question of defending the dissemination of the procedure - "on the contrary, what is wanted is that it be rare and safe," he said. "Abortion is a practice to be avoided because of the physical, psychological and moral complexities involved. For this reason, it is the role of the State and of society to act in this direction, through the provision of sexual education, the distribution of contraceptives and the protection of women who wish to have their child and are in adverse circumstances. "

According to the justice, it is necessary to confer interpretation according to the Constitution on articles 124 to 126 of the Penal Code - which typify the crime of abortion - to exclude from its scope of incidence the voluntary interruption of the pregnancy performed in the first trimester. As the Penal Code is from 1940 - prior to the 1988 Constitution - and the STF case law does not admit the declaration of unconstitutionality of a law prior to the Constitution, justice Barroso understands that the hypothesis is not to receive. "As a consequence, due to the non-incidence of the criminal type imputed to patients and co-defendants to the voluntary interruption of gestation carried out in the first three months, there is doubt based on the very existence of the crime, which removes the presence of a prerequisite indispensable to the sentence of preventive prison," he concluded.


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