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Brazilian Federal Supreme Court (STF) judges on this Thursday (17) lawsuits on imprisonment after conviction in second instance

10/16/2019

On Thursday (17), the plenary session of the Brazilian Federal Supreme Court (STF) judges the merits of the Declaratory Actions of Constitutionality (ADCs) 43, 44 and 54. In the actions, the National Ecological Party - PEN (current Patriot Party), the Federal Council of the Brazilian Bar Association (OAB) and the Communist Party of Brazil (PCdoB) request that the STF make the beginning of the sentence conditional on the exhaustion of all possibilities of appeal (res judicata). The rapporteur of the ADCs is Justice Marco Aurélio.

The underlying theme of the lawsuits is the principle of presumption of innocence. According to article 5, line LVII, of the Federal Constitution, highlighted in the lawsuits, "no one shall be found guilty until a final and unappealable criminal conviction has been passed".

Case-law

In February 2016, in the Habeas Corpus (HC 126292) trial, the Plenary, by seven to four votes, decided that the possibility of beginning the execution of the sentence after confirmation of the second degree sentence does not violate the constitutional principle of presumption of innocence. This position was reaffirmed in the Virtual Plenary Session judgment of Extraordinary Appeal (ARE) 964246, with recognized general repercussion.

The case law established in 2016 was based, among other things, on the fact that only the ordinary courts (courts, tribunals of justice or federal regional courts) are responsible for examining the facts and evidence and, therefore, for establishing the criminal liability of the accused. In special appeals to the Superior Court of Justice (STJ) and in extraordinary appeals to the STF, the discussion concerns only legal or constitutional issues.

Questions and Answers

What is the purpose of ADCs 43, 44 and 54 (provisional enforcement of sentence)?
The OAB and two political parties request that the STF make the beginning of the sentence conditional on the exhaustion of all possibilities of appeal (final and unappealable). Since 2016, the Plenary has adopted the position that the beginning of the execution of the sentence after a second instance decision does not violate the constitutional principle of the presumption of innocence.

Does the decision to be taken by the STF concern all persons sentenced to deprivation of liberty?
No. The discussion concerns only the cases in which the beginning of the provisional execution of the sentence after conviction in second instance was determined. It does not, therefore, reach people arrested preventively, in the form of procedural legislation (article 312 of the Code of Criminal Procedure - CPP).

What is the difference between provisional execution of the sentence and preventive imprisonment?
In the provisional execution of the sentence, admitted after the second instance, there has already been confirmation of the sentence. In such cases, in theory, appeals to the STJ and STF are still possible to deal with legal or constitutional issues. Preventive custody, on the other hand, can be decreed at any stage of the process, provided that the requirements of article 312 of the Crimial Procedure Code (CPP) are met. The measure applies, for example, to individuals with a high degree of dangerousness or a proven risk of escape.

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