Prison after conviction in appellate courts

February 23, 2023

Going to prison in Brazil is any easy task. The Brazilian procedural law, especially in criminal law, creates so many mechanisms for postponing the final and unappealable decisions that anyone having the resources to hire a lawyer or relying on an active public defender can postpone it. As such, many cases end up time-barred, although Brazilian legislation is slowly advancing in making crimes such as femicide or rape imprescriptible.

The difficulty of locking someone up someone starts with some fundamental rights listed in Article 5 of the Brazilian Constitution of 1988, especially Item LVI, which provides as follows:

No one shall be considered guilty before the criminal conviction becomes final and unappealable;

Article 5, item LVII of the Brazilian Constitution of 1988.

Locking someone becomes even more complex with the provisions of Article 5, LXI which provides as follows:

No one shall be arrested unless in flagrante delicto or by a written and grounded order of a competent judicial authority, except for military transgression or specific military crime, as defined under the law;

Article 5, item LXI of the Brazilian Constitution of 1988.

In Brazil, the law allows detaining someone in some circumstances such as:

Arrest in flagrante delicto

According to Article 302 of the Brazilian Code of Criminal Procedure , one is in flagrante delicto when committing or after just committed a criminal offense or when being pursued under the presumption of having committed or participating in the crime.

Preventive detention

Created by Statute 7,960/89 , it allows the detaining someone (i) when essential for the investigations of a police inquiry; (ii) when detainee does not have a fixed residence or does not provide elements necessary to clarify their identity; and (iii) when there are well-founded reasons in accordance with any evidence admitted in criminal law of authorship or participation of the accused in the following crimes: a) intentional homicide ( Article 121, caput, and its Paragraph 2 ); b) kidnapping or false imprisonment ( Article 148, caput, and its Paragraphs 1 and 2 ); c) theft ( Article 157, caput, and its Paragraphs 1, 2 and 3 ); d) extortion ( Article 158, caput, and its Paragraphs 1 and 2 ); e) extortion through kidnapping ( Article 159, caput, and its Paragraphs 1, 2 and 3 ); f) rape ( Article 213, caput , and its combination with Article 223, caput, and sole paragraph ); g) violent indecent assault ( Article 214, caput , and its combination with Article 223, caput, and sole paragraph ); h) violent kidnapping ( Article 219 , and its combination with Article 223, caput, and sole paragraph ); i) epidemic resulting in death ( Article 267, Paragraph 1 ); j) poisoning of drinking water or food or medicine resulting in death ( Article 270, caput , combined with Article 285 ); l) conspiracy or racketeering ( Article 288 ), all from the Brazilian Penal Code; m) genocide ( Articles 1 , 2 and 3 of Statute #2,889, of October 1, 1956 ), in any of its typical forms; n) drug trafficking ( Article 12 of Statute #6,368, of October 21, 1976 ); o) crimes against the financial system ( Statute #7,492, of June 16, 1986 ) and p) crimes provided for in the Brazilian Anti-Terrorism Act.

Pretrial detention

According to Article 312 of the Brazilian Code of Criminal Procedure, pretrial detention may be decreed to ensure public order, economic order, for the convenience of the production of evidence or to enforce criminal law, when there is proof of the crime, sufficient evidence of authorship and danger generated by the freedom of the accused.

In 2019, however, deputy Alex Manente, from the Citizenship of São Paulo party, presented the Constitutional Amendment Bill (PEC) 199/19, with a peculiar solution, to say the least. Instead of allowing someone to be arrested after being merely convicted in appellate courts, it proposed the extinction of Special Appeals to the Brazilian Superior Court of Justice (STJ) and to Extraordinary Appeals the Brazilian Supreme Court (STF), which are provided for in Articles 102 and 105 of the Brazilian Constitution. As such, the conviction in appellate courts become final in and of itself since it would not be subject to further appeals. Thus, the provisions of Article 5, which deal with fundamental citizen rights would remain unchanged, as it is considered an entrenched clause, not subject to change when subtracting or reducing the rights defined therein.

On the other hand, said Bill would still allow the defendant to submit a special or extraordinary revisional suit to the Supreme Court and the Superior Court of Justice, but without this prerogative preventing the sentence in prison.

But this was definitely not the only initiative on the same subject that failed to amend the Brazilian Constitution. Former Minister and currently senator Sérgio Moro reopened Senate Bill (PLS) 166/18, arising from a breakdown of the anti-crime package presented by him when in the Ministry of Justice, during the term of former President Jair Messias Bolsonaro, and authored by Senator Lasier Martins of the Social Democratic Party of Rio Grande do Sul.

Unlike the Constitutional Amendment Bill 199/19, this Senate Bill 166/18 was severely attacked by some constitutionalists, as it focused on amending the Code of Criminal Procedure, allowing the imprisonment from the conviction in appellate courts; which goes against said constitutional provisions; therefore being unconstitutional.

Indeed, this will be a very controversial topic that Brazilian society will watch over the coming months, in yet another attempt to reduce the reigning impunity in terra brasilis.

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Prison after conviction in appellate courts

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Going to prison in Brazil is any easy task. The Brazilian procedural law, especially in criminal law, creates so many mechanisms for postponing the final and unappealable decisions that anyone having the resources to hire a lawyer or relying on an active public defender can postpone it. As such, many cases end up time-barred, although Brazilian legislation is slowly advancing in making crimes such as femicide or rape imprescriptible.

The difficulty of locking someone up someone starts with some fundamental rights listed in Article 5 of the Brazilian Constitution of 1988, especially Item LVI, which provides as follows:

No one shall be considered guilty before the criminal conviction becomes final and unappealable;

Article 5, item LVII of the Brazilian Constitution of 1988.

Locking someone becomes even more complex with the provisions of Article 5, LXI which provides as follows:

No one shall be arrested unless in flagrante delicto or by a written and grounded order of a competent judicial authority, except for military transgression or specific military crime, as defined under the law;

Article 5, item LXI of the Brazilian Constitution of 1988.

In Brazil, the law allows detaining someone in some circumstances such as:

Arrest in flagrante delicto

According to Article 302 of the Brazilian Code of Criminal Procedure , one is in flagrante delicto when committing or after just committed a criminal offense or when being pursued under the presumption of having committed or participating in the crime.

Preventive detention

Created by Statute 7,960/89 , it allows the detaining someone (i) when essential for the investigations of a police inquiry; (ii) when detainee does not have a fixed residence or does not provide elements necessary to clarify their identity; and (iii) when there are well-founded reasons in accordance with any evidence admitted in criminal law of authorship or participation of the accused in the following crimes: a) intentional homicide ( Article 121, caput, and its Paragraph 2 ); b) kidnapping or false imprisonment ( Article 148, caput, and its Paragraphs 1 and 2 ); c) theft ( Article 157, caput, and its Paragraphs 1, 2 and 3 ); d) extortion ( Article 158, caput, and its Paragraphs 1 and 2 ); e) extortion through kidnapping ( Article 159, caput, and its Paragraphs 1, 2 and 3 ); f) rape ( Article 213, caput , and its combination with Article 223, caput, and sole paragraph ); g) violent indecent assault ( Article 214, caput , and its combination with Article 223, caput, and sole paragraph ); h) violent kidnapping ( Article 219 , and its combination with Article 223, caput, and sole paragraph ); i) epidemic resulting in death ( Article 267, Paragraph 1 ); j) poisoning of drinking water or food or medicine resulting in death ( Article 270, caput , combined with Article 285 ); l) conspiracy or racketeering ( Article 288 ), all from the Brazilian Penal Code; m) genocide ( Articles 1 , 2 and 3 of Statute #2,889, of October 1, 1956 ), in any of its typical forms; n) drug trafficking ( Article 12 of Statute #6,368, of October 21, 1976 ); o) crimes against the financial system ( Statute #7,492, of June 16, 1986 ) and p) crimes provided for in the Brazilian Anti-Terrorism Act.

Pretrial detention

According to Article 312 of the Brazilian Code of Criminal Procedure, pretrial detention may be decreed to ensure public order, economic order, for the convenience of the production of evidence or to enforce criminal law, when there is proof of the crime, sufficient evidence of authorship and danger generated by the freedom of the accused.

In 2019, however, deputy Alex Manente, from the Citizenship of São Paulo party, presented the Constitutional Amendment Bill (PEC) 199/19, with a peculiar solution, to say the least. Instead of allowing someone to be arrested after being merely convicted in appellate courts, it proposed the extinction of Special Appeals to the Brazilian Superior Court of Justice (STJ) and to Extraordinary Appeals the Brazilian Supreme Court (STF), which are provided for in Articles 102 and 105 of the Brazilian Constitution. As such, the conviction in appellate courts become final in and of itself since it would not be subject to further appeals. Thus, the provisions of Article 5, which deal with fundamental citizen rights would remain unchanged, as it is considered an entrenched clause, not subject to change when subtracting or reducing the rights defined therein.

On the other hand, said Bill would still allow the defendant to submit a special or extraordinary revisional suit to the Supreme Court and the Superior Court of Justice, but without this prerogative preventing the sentence in prison.

But this was definitely not the only initiative on the same subject that failed to amend the Brazilian Constitution. Former Minister and currently senator Sérgio Moro reopened Senate Bill (PLS) 166/18, arising from a breakdown of the anti-crime package presented by him when in the Ministry of Justice, during the term of former President Jair Messias Bolsonaro, and authored by Senator Lasier Martins of the Social Democratic Party of Rio Grande do Sul.

Unlike the Constitutional Amendment Bill 199/19, this Senate Bill 166/18 was severely attacked by some constitutionalists, as it focused on amending the Code of Criminal Procedure, allowing the imprisonment from the conviction in appellate courts; which goes against said constitutional provisions; therefore being unconstitutional.

Indeed, this will be a very controversial topic that Brazilian society will watch over the coming months, in yet another attempt to reduce the reigning impunity in terra brasilis.

No items found.