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STF reaffirms unconstitutionality of the rule prohibiting provisional release of prisoners for drug trafficking

Friday, September 1st, 2017

The Brazilian Federal Supreme Court (STF) reaffirmed its jurisprudence in the sense of the unconstitutionality of rule provided for in the Drug Law (Law 11.343 / 2006), which prohibits the granting of provisional release to prisoners accused of trafficking. The decision was taken by the Virtual Plenary in Extraordinary Appeal (RE) 1038925, with general acknowledged repercussion.

In May 2012, in the judgment of Habeas Corpus (HC) 104339, the STF Plenary had, incidentally, declared the unconstitutionality of the expression "provisional freedom" of article 44 of the Drug Law. As a result, the Supreme Court allowed the admission of a precautionary arrest for traffic only if, in the specific case, the presence of any of the requirements of Article 312 of the Code of Criminal Procedure (CPC) was verified. Since then, this decision served as a parameter for the Supreme Court, but it did not bind the other courts. With the reaffirmation of jurisprudence with status of general repercussion, this understanding must be applied by other instances in similar cases.

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10/05/2012 - Rule that forbids release on recognizance for those arrested for drug trafficking is unconstitutional

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