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Brazilian Federal Supreme Court decides that the enforcement of prison sentence should begin only after exhaustion of appeals


By majority vote (6-5), the Plenary of the Brazilian Federal Supreme Court (STF) decided that the rule of the Code of Criminal Procedure (CPP) which provides for the exhaustion of all possibilities of appeal (final and unappealable conviction) for the beginning of the enforcement of a prison sentence is constitutional. On Thursday (7), the Court concluded the judgment of the Declaratory Actions of Constitutionality (ADC) 43, 44 and 54, which were upheld.

Justices Marco Aurélio (rapporteur), Rosa Weber, Ricardo Lewandowski, Gilmar Mendes, Celso de Mello and Chief Justice Dias Toffoli expressed opinions in favor of this understanding. For the majority, the article 283 of the Code of Criminal Procedure (CPP), according to which "no one may be arrested except in flagrante delicto or by written and reasoned order of the competent judicial authority, as a result of a final and unappealable sentence or, in the course of the investigation or proceedings, as a result of temporary imprisonment or preventive detention", is in accordance with the principle of presumption of innocence, a guarantee provided in article 5, item LVII, of the Federal Constitution. Justices Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Luiz Fux and Cármen Lúcia cast the dissenting opinions: for the five Justices, the enforcement of the prison sentence after the second instance conviction does not violate the principle of presumption of innocence.

The decision does not prohibit imprisonment before appeals are exhausted, but establishes the need for the defendant's situation to be individualized, demonstrating the existence of the requirements for pre-trial detention as set forth in article 312 of the CPP - to guarantee public and economic order, for the convenience of criminal proceedings or to ensure the application of the criminal law.

The trial of the ADCs began on October 17 with the presentation of the opinion of the rapporteur, Justice Marco Aurélio and resumed on October 23, with the oral statements of the parties and the votes of Justices Alexandre de Moraes, Edson Fachin and Luís Roberto Barroso. In the 10/24 session, the judgment continued with the votes of Justices Rosa Weber, Luiz Fux and Ricardo Lewandowski. At today's session, Justices Cármen Lúcia, Gilmar Mendes, Celso de Mello and Dias Toffoli cast their votes.

Justice Cármen Lúcia

Justice Cármen Lúcia agreed with the dissenting opinion presented on the 10/23 session by Justice Alexandre de Moraes, by stating that the possibility of enforcement after the second instance ruling is not in conflict with the principle of presumption of innocence. According to her, article 5, LVII, of the Federal Constitution should be interpreted taking into account the other constitutional provisions dealing with imprisonment, such as LIV (due legal process) and LXI (imprisonment in flagrante delicto or by written order).

The effectiveness of the criminal law, in the understanding of Justice Cármen Lúcia, is linked to the certainty of the fulfillment of the sentences. Without this certainty, according to her, "what prevails is the belief in impunity". The effectiveness of the criminal system, however, must safeguard "the indispensability of due legal process and the strict observance of the adversarial proceedings and the guarantees of the defense".

Justice Gilmar Mendes

In his opinion in favor of the constitutionality of Article 283 of the CPP, Justice Gilmar Mendes affirmed that, after the decision of the STF in 2016, which authorized the enforcement of the sentence before the final and unappealable decision, the courts began to understand that the procedure would be automatic and mandatory. According to  Justice Mendes, the automatic decree of imprisonment without proper specification and individualization of the concrete case is a distortion of what was judged by the STF.

According to Mendes, the enforcement of the sentence after the ruling of the second instance without the demonstration of the requirements for imprisonment violates the constitutional principle of non guilt. He pointed out that in recent years, the National Congress approved amendments to the CPP with the aim of adapting its text to the principles of the 1988 Constitution, including the presumption of innocence.

Justice Celso de Mello

The dean, Justice Mello, agreed with the opinion of the rapporteur. Mello stated initially that no Justice of the STF disagrees with the need to repudiate and repress all forms of crime committed by public officials and businessmen delinquents. For this reason, he considers unfounded the interpretation that the defense of the principle of presumption of innocence may obstruct the investigative activities and persecution of the state. According to him, the repression of crimes cannot disrespect nor violate the legal order and the fundamental rights and guarantees of those under investigation. The dean also pointed out that the Constitution cannot be submitted to the will of the constituted powers nor can the Judiciary base its decisions on public clamor.

The Justice pointed out that his position in favor of that opinion has been the same for 30 years, since he joined the STF. He also pointed out that the requirement of res judicata does not prevent the decree of pre-trial detention in its various forms.
Full vote of Justice Celso de Mello (in Portuguese)

Justice Dias Toffoli

Last to vote, the Chief Justice Dias Toffoli explained that the trial concerns an abstract analysis of the constitutionality of article 283 of the CPP, with no direct relation to any concrete case. Toffoli said that imprisonment based solely on a criminal conviction can only be decreed after all possibilities of appeal have been exhausted. This understanding, he explained, stems from the legislator's express choice and is compatible with the constitutional principle of presumption of innocence. According to him, the Parliament has autonomy to amend this provision and determine the time of arrest.

For the Chief Justice, the only exception is the sentence rendered by the Jury Court, which, according to the Constitution, is sovereign in its decisions. Toffoli also stressed that the requirement of res judicata will not lead to impunity, because the judicial system has mechanisms to prevent abuse of appeals with the sole purpose of benefiting the statute of limitations of the sentence.

Redação//CF - CG/FB/GL

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