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Dismissed application of initial closed prision fixed outside legal parameters

Justice Luis Roberto Barroso of the Brazilian Federal Supreme Court (STF) has assured a convicted person of trafficking in small quantities of drugs the right to start serving his sentence in a semi-open regime. According to the rapporteur, the initial closed prision regime was established illegally, not considering rules on the subject found in the Criminal Code (CP). The decision of the Justice was taken in the records of Habeas Corpus (HC) 168179.

In the case, the defendant was sentenced to four years and two months imprisonment for drug trafficking (167.8g of marijuana and 75.7g of cocaine) and the judge ordered the initiation of the sentence in closed regime.


The rapporteur noted that it was not possible to accept the request to apply the reduction in its maximum degree, since it would be necessary to analyze facts and evidence. He explained that the discussion regarding the dosimetry of the penalties is relative to the criminal action merits, linked to the factual-probative set, and the STF should restrict itself to control the legality of the criterion used for its definition. Justice Barroso also noted that, according to the jurisprudence of the Court, it is not possible to substitute penalties of more than four years imprisonment for rights restrictions.


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