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Provisional execution of a sentence that convicted a person who still had the right to appeal suspended

Monday, October 2, 2017

Justice Celso de Mello of the Brazilian Federal Supreme Court (STF) granted a preliminary injunction in the Habeas Corpus (HC) 147452 to suspend, until the final decision on the sentence, the provisional execution of the sentence imposed on a convicted person. According to the senior Justice, the decision that determined the early execution was taken without valid explanation and led to a damaging situation in the context of a defense appeal.

In the present case, the defendant was tried by the Jury of the Jaboticatubas District Court (MG) and sentenced to ten years' imprisonment, in an initial closed regime, being guaranteed the right to appeal in freedom, without there being an appeal from the Prosecution Service. The conviction was upheld by the Minas Gerais Court of Justice (TJ-MG), which denied the defense's appeal. Then, a monocratic decision of the Superior Court of Justice (STJ) dismissed  the special appeal of the defense and ordered the immediate execution of the sentence.

In his decision, the justice cited STF case-law in which, by a narrow majority (6 votes to 5), the possibility of provisional execution of the sentence already confirmed on appeal was acknowledged. He emphasizes that he joined the dissenting vote because he understood that this view disrespects the constitutional presumption of innocence. "The unquestionable fact in the field of the constitutional presumption of innocence lies in the fact that no execution of a criminal conviction in our country, even if it is a simple fine, can be implemented without the existence of the indispensable definitive judicially enforceable instrument resulting from the necessary final judgment of the conviction", he pointed out.

In this case, the senior Justice explained that the decision of the STJ, in determining the commencement of the provisional execution of the criminal conviction, limited itself to simply mentioning the STF precedent, without, however, stating "in an adequate and correct way", the order of arrest. According to the justice, this act violates section IX of article 93 of the Federal Constitution, according to which all judgments of judicial bodies will be public, and all decisions will be substantiated, under penalty of nullity.

Read the entire decision of Justice Celso de Mello in HC 147452.

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