Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 283. No one may be arrested except in flagrante delicto or by written and substantiated order of the competent judicial authority, as a result of precautionary arrest or as a result of a final criminal conviction.   (Wording provided by Law No. 13,964, of 2019) (Effective)
§ 1 The precautionary measures provided for in this Title do not apply to the offense that is not isolated, cumulative or alternatively imposed a custodial sentence. (Included by Law No. 12,403 of 2011). 
§ 2 The arrest may be carried out on any day and at any time, respecting the restrictions relating to the inviolability of the domicile. (Included by Law No. 12,403 of 2011).

Prison legal hypotheses

Legal hypotheses of arrest:  According to this device, someone can only be arrested in two hypotheses, namely, flagrante delicto or written order of the judge. The judge’s written order, in turn, can only have one of the following three legal grounds: (1) final conviction; (2) temporary detention; (3) preventive detention.

Provisional execution and the STF

Final and unappealable decision and the comings and goings of jurisprudence :  The STF understood that the extraordinary appeal did not have suspensive effect. This position was changed in 2009, with the judgment by the Plenary of  HC n. 84.078-7 : ”(…) The Penal Execution Law conditioned the execution of the custodial sentence to the final and unappealable sentence. The 1988 Constitution of Brazil defined, in its  article 5, item LVII, that ‘no one will be considered guilty until the final and unappealable criminal sentence’. 2. Hence, the precepts conveyed by Law n. 7,210/84, in addition to being adequate to the current constitutional order, overlap, temporally and materially, with the provisions of article 637 of the CPP. 3. Imprisonment before the conviction becomes final and unappealable can only be decreed on a precautionary basis (…)” ( STF – Plenary – HC 84.078 – Summary). This orientation began to be adopted by the various Courts, until in 2016, on the occasion of the judgment of the Direct Actions of Constitutionality nos. 43 and 44, the Plenary reversed by 5 votes against 4. “At the conclusion of the trial, the Plenary, by majority, rejected precautionary measures in declaratory actions of constitutionality and conferred interpretation in accordance with the Constitution and article 283 of the Code of Criminal Procedure ( CPP). Thus, it allowed the provisional execution of the sentence after the second-degree conviction and before the final decision. The Court ruled that the provisional execution of a condemnatory criminal judgment handed down on appeal, even if subject to special or extraordinary appeal, does not compromise the constitutional principle of the presumption of innocence affirmed by article 5, LVII, of the Federal Constitution. This understanding does not contrast with the text of article 283 of the CPP. The Court emphasized that, in accordance with Articles 995 and 1,029, paragraph 5, of the Code of Civil Procedure (CPC), the possibility of granting suspensive effect to special and extraordinary appeals in the criminal field is exceptional. The general rule continues to be the receipt of these exceptional resources with a merely devolutionary effect” (STF – Plenary – ACs 43 and 44 – Minister Marco Aurélio  –  Newsletter 837 ).

Update (2020). Imprisonment in second instance is prohibited again. Update required: In November 2019, the STF revisited its understanding in order to prohibit provisional execution. ADCs 43, 44 and 54 were upheld to reaffirm the constitutionality of art. 283 of the Code of Criminal Procedure, as amended by Law No. 12,403, of May 4, 2011. Justice Edson Fachin, who dismissed the action, and Justices Alexandre de Moraes, Roberto Barroso, Luiz Fux and Cármen Lúcia were defeated. , who judged it partially valid to give a conforming interpretation. Currently (2020), consequently, the execution of the sentence can only be authorized after the final judgment. There is, of course, no obstacle to provisional arrest, even in those cases of prisoners due to conviction in the second instance.

Interim execution. Words on the topic: The prison in 2nd. instance is no nonsense. It is a plausible option that some procedural orders abroad adopt. What is not acceptable is to run over the letter of the CPP, endorsed by the Federal Constitution. To interpret, one cannot listen to the people. To interpret and apply the law, the people delegated this function to the judiciary. The judge cannot return to the people a burden that is theirs. The people, faced with criminality, have maintained the same position for centuries: they want to condemn, execute, burn at the stake, kill. It wasn’t many years ago that Brazilians, and also in other nations, gathered in public squares to watch the hanging of criminals. It was a weekend getaway. Whole families donned their best clothes to watch the executions. The mass takes satisfaction in eliminating the condemned. You have to understand this behavior. It is a defense reaction of the species. But man is distinguished from other animals by his intelligence. The crowd is atavistic. The crowd is species, its instincts and impulses. The man, in the crowd, depersonalizes himself. Unconscious of it, it crosses the barrier of civilization and assumes the command of reason. The individual, without the hereditary cry of the past, has his own intelligence. The crowd thinks like a species. The judge, when judging, does not primarily represent the will of the species, but of the civilized one. When judging, he is an individual, owner of particular and personal intelligence. If the magistrate could judge according to the popular will, he would not need to have studied law. Moreover, it would not be necessary for a magistrate to judge, the people to do so. It’s the opposite of history. The return to barbarism. Terry Pratchett, English writer, said that the intelligence of a creature known as a crowd is equal to the square root of the number of people in it. The collective soul of the crowd has only one meaning: that of ignorance. In the crowd, even educated and intelligent men, turn into imbeciles. Furthermore, the people are not endowed with a single will. There are different interests, depending on which group it is. Does not exist one public opinion, unique, exclusive. They are diverse and often conflicting. Judge representing group interests is the same as politician aiming to do justice. Both are in the wrong place. Politician represents interests. The legislature brings together the different interests of the various groups that make up the nation. If a certain group is in favor of the death penalty, the judge cannot represent it in the judiciary. In the judiciary, the judge must represent the will of the Federal Constitution. The aforementioned group, along with all the others that make up the nation, by constituting it (material constitution), formulated the Constitution of the Republic (formal constitution). It is the will of the Constitution that must prevail in the judiciary, not the will of one of the groups among those who jointly framed the constitution. Especially because there are conflicting groups, there are opposing interests. These conflicts are contained in CF. Constitutional interpretation excludes the possibility of annulment of one principle by another. Principles, drivers of interests, need to be harmonized in the hermeneutic effort. The interpreter – and official law enforcement – ​​cannot participate in the conflict. Of course, the judge, in his private life, participates in some group with which he shares his ideas. However, when exercising jurisdiction, the good judge excludes his political convictions from decisions and allows himself to be adopted by legal and constitutional commands. This conception inhibits, among other evils, judicial activism and the judicialization of politics – distinct pathologies, but with some similarities. Seeking legitimacy directly from the crowds is the strategy of tyrants. The tyrant knows that the support of the crowd is capable of curbing any institutional censorship. Dionysius of Halicarnassus said: the multitude is the mother of all tyrants. No federal law can permit provisional execution as long as the CF proclaims that every accused is presumed innocent. There is no viable interpretation that can reconcile the constitutional command of presumption of innocence with the anticipated execution of sentence. A person who is presumed innocent cannot be executed. The difficulty in changing this constitutional device results from the fact that this is an intangible clause. It cannot be modified nor deleted. It cannot be the subject of a proposed amendment. Immutable clauses aim to give stability to the nation. Only a new Constitution would be able to remove the presumption of innocence. In any case, if, sooner or later, habeas corpus , replacing, or even jointly with, extraordinary resources – special and extraordinary in the strict sense. If, on the one hand, the postponement of execution can be a problem, on the other hand, provisional executions based on precarious decisions are another, perhaps even greater, problem.

Interpreting article 283:  If the CF establishes that “no one will be considered guilty until the final and unappealable conviction of a condemnatory criminal sentence” ( article 5, LVII ), and the CPP ensures that “no one can be arrested except as a result of a condemnatory sentence passed in judged”, and the Law of Penal Executions confirms that “if the sentence that applies the deprivation of liberty becomes final, if the defendant is or will be arrested, the judge will order the issuance of a payment form for the execution” (article 105 , Law n. 7.210/1984), there is no doubt that, when the STF authorizes the execution of a decision handed down in an appeal still subject to appeal to the Superior Courts, it is exercising a jurisdictional function, but a legislative one. In other words, it is the jurisdiction that legislates. If the Maximum Law stipulates that no one can be considered guilty before the end of the process, and two federal laws prohibit arrest before the final decision, there is no way to find a valid interpretation of Article 283 to authorize arrest without a final decision, without violating the logic . This interpretation does not result in impunity. For arrest before the final decision, there is preventive detention. As a matter of fact, in relation to provisional detention post-preclusion of the 2nd degree appeals, the effectiveness of the preventive measure in the fight against the crime is, by far, much superior, since it can already be applied in the investigation phase. To combat crime, it is not necessary to create norms where they do not exist. It is good enough to understand and apply those that are available. Justice Marco Aurélio, in his vote, on the occasion of the trial of theDirect Constitutional Action 43,maintained “the precept, in my view, does not allow interpretations. There is a maxim, in terms of the notion of interpretation, of hermeneutics, according to which, where the text is clear and precise, interpretation ceases, under penalty of rewriting the legal norm, and, in this case, the constitutional precept. The principle of self-restraint must prevail. I have already said, on this bench, that, when we move forward, we go beyond the limits that are proper to the Judiciary, like throwing a boomerang and it can come back and come at our forehead”. Against the argument that appeals to the Superior Courts are not very useful, and, therefore, it makes no difference that the execution begins before they judge, Justice Marco Aurélio presented statistical data: “As extracted from the Statistical Report of the said Court, the average success rate of special appeals in criminal matters varied, in the period from 2008 to 2015, between 29.30% and 49.31%. Data presented by the Public Defender’s Office of the State of São Paulo indicate that, in February 2015, 54% of the special appeals filed by the Body were at least partially granted by the Superior. The following March, the success rate reached 65%. The same rates are verified with regard to habeas corpus, at the rate of 48% in 2015 and 49% until April 2016”.

STF case law:  STF case law authorizing provisional execution is defensive. It seeks to reduce the number of appeals before that Court. Decrease the risk of prescription. Ultimately, given the physical impossibility of dealing with the number of processes, the rights of the parties are subtracted. The start of serving the sentence, when the appeals before the 2nd instance are exhausted, is calculated – and it is calculated badly, it is one of the ways to reduce the number of appeals. Others have been created, especially various artificial obstacles to knowledge of resources, to  habeas corpus and the warrant. The problem of excessive processes in the STF should be solved with changes that are incumbent on the Legislative Power. The most appropriate solution would be to exclude the competence of the STF to judge the extraordinary appeal. In the special appeal, addressed to the STJ, the constitutional matter could be examined and, as necessary, the number of Justices of the STJ would be increased. The STF would have the role of controlling the constitutionality of laws. Jurisdiction less to do it well. There is not the slightest sense in a minister of the STF judging a concrete case and, what is more unusual, by the thousands a year, monocratically.

Jurisprudence – Provisional execution is feasible

Execution of the sentence in 2nd. Instance:  Pending the final and unappealable decision of the condemning judgment only by filing an appeal of an extraordinary nature, it is possible to execute the sentence (STJ, QO in APn 675-GO, Judge Nancy Andrighi, judged on 4/6/2016, DJe 4/26/2016 – Newsletter n. 582).

The provisional execution of a judgment does not compromise the constitutional principle of the presumption of innocence:  The provisional execution of a condemnatory criminal judgment handed down on appeal, even if subject to special or extraordinary appeal, does not compromise the constitutional principle of the presumption of innocence stated by art. 5, LVII, of the Federal Constitution ( HC 126.292, rel. Min. Teori Zavascki, judgment on 2/17/2016, DJE of 5/16/2016  – Newsletter 814, Plenary).

Provisional enforcement:  It is possible to provisionally enforce a sentence imposed in a condemnatory decision handed down in a criminal action with the original jurisdiction of a court (EDcl in REsp 1.484.415-DF, Reporting Judge Rogerio Schietti Cruz, judged on 3/3/2016, DJe 4/14/2016 – Newsletter n. 581).

Provisional execution of the sentence is not applicable if declaratory embargoes are pending:  Provisional execution of the sentence. Non-exhaustion of ordinary jurisdiction. Impossibility. The execution of the sentence after the delivery of a judgment in the second degree of jurisdiction and before the final judgment of the conviction is not automatic, when the decision is still subject to integration by the Court of Justice (…) it is possible to identify that there was no prior exhaustion of the sentence. jurisdiction of the Court, as there is a record of the filing of Motions for Clarification that have not yet been judged. As the condemnatory judgment is subject to integration and there is still no definitive pronouncement by the Court of Justice (…)STJ, HC 366.907-PR, Rapporteur Min. Rogério Schietti Cruz, unanimously, judged on 6/12/2016, DJe 16/12/2016 – Newsletter 595 ).

Conviction in second instance. There is no provisional execution before the Public Defender’s Office is summoned: Conviction in second instance. Provisional execution of the sentence. Absence of exhaustion of the ordinary instance. Illegality. In the event that the State Public Defender’s Office has not yet been notified of a conviction, the immediate issuance of an arrest warrant is illegal ( STJ, HC 371.870-SP, Reporting Min. Felix Fischer, unanimously, judged on 13 /12/2016, DJe 2/1/2017 – Newsletter 597 ).

Jurisprudence – Provisional execution is not feasible

The immediate execution of a sentence is offended by the principle of non-culpability, when an extraordinary appeal is still pending judgment  : 122.592/PR, rel. Min. Ricardo Lewandowski, judged on 8/12/2014, judgment published in the DJE of 10/17/2014  – Newsletter 754, Second Panel).

Penalties restricting rights are not executed before the final decision:  Penalty deprivation of liberty replaced by restrictions on rights. Interim execution. Impossibility. Art. 147 of the Penal Execution Law. Express prohibition. Absence of manifestation of the STF. It is not possible to execute the penalty restricting rights before the conviction becomes final ( EREsp 1.619.087-SC, Reporting Judge Maria Thereza de Assis Moura, Reporting Judge for Judge Jorge Mussi, by majority, judged on 14 /6/2017, DJe 8/24/2017 – Newsletter 609 ).

Refuting the three main foundations of the thesis of the legality of the provisional execution

Critical analysis of three arguments used in favor of provisional execution:  Among the arguments in favor of provisional execution, three deserve to be highlighted. They are: 1 – the presumption of innocence expires in the 2nd degree; 2 – the constitutionality of precautionary prisons confirms that the presumption of innocence is a relative guarantee; 3 – the constitutional text does not guarantee imprisonment only after the final decision.

Argument first. Superior Courts and the evidence: It is stated that there is no examination of evidence in the Superior Courts (which is debatable) and, consequently, the presumption of innocence is exhausted in the 2nd degree trial. Therefore,  article 5, item LVII, of the CF , from which the principle of the presumption of innocence derives – “no one will be considered guilty until the final and unappealable sentence of a condemnatory criminal sentence” –, only applies until the judgment of the courts of 2nd instance . The argument is intelligent, creative, but incomplete, as it reveals only half of what is contained in  article 5, item LVII , of the CF. This constitutional rule had two children. A talkative, extroverted person who, for that very reason, became famous. It regulates the evaluation of evidence, it is the principle  in dubio pro reo. Another, discreet, little known, very misunderstood (confused with his brother), but of vital importance, and which acts on the interpretation of norms: the principle of  favor king . According to the Italian treatise writer Giovanni Leone, “it is a principle by virtue of which all procedural instruments must tend towards the declaration of certainty of the non-responsibility of the accused” (LEONE, Giovanni. Treaty of penal procedural derecho . Buenos Aires, Jurídicas Europa- América , 1963, v. I, p. 188). It concerns a position of merit in relation to the news of the crime. It’s just that the criminal procedural system, the procedural order, the criminal procedure, all of it, is an order of guaranteeing freedom. By logical consequence, and also by derivation of the constitutional command (article 5, item LVII, of the CF) – if there are two, three, or more possible interpretations –, the judge must choose the rule that is most favorable to the accused. “If by interpretation we mean the cognitive fixing of the meaning of the object to be interpreted, the result of a legal interpretation can only be the setting of the frame that represents the right to interpret and, consequently, the knowledge of the various possibilities that within that frame they exist. Therefore, the interpretation of a law should not necessarily lead to a single solution as being the only correct one, but possibly to several solutions that – insofar as they are only measured by the law to be applied – have equal value, although only one of them becomes positive law in the act of the law-applying body – in the act of the court, especially.Pure theory of law . 4. Ed. Coimbra, Arménio Amado, 1976, p. 467). Superior Courts do not need to evaluate evidence to acquit based on article 5, item LVII. Taking into account the fact narrated in the judgment considered to be true and which resulted in the conviction, the STF, examining this fact in the light of objective law, and based on the principle of  royal favor, may consider it either atypical, or not unlawful, or not culpable, and acquit the accused. For this, it is enough that it interprets the norms applicable to the specific case in a more beneficial way than the appealed Court. All without turning a single page of the process. Just reading the judgment. That is to say, without any proof examination. This results in the fact that, indisputably, the application of the principle of presumption of innocence does not end in the 2nd instance, given that the laws are interpreted favorably to the accused in all instances.

Second argument. Pretrial detentions and constitutionality: Another argument used to justify provisional execution is the constitutionality of precautionary arrests (flagrant, temporary and preventive) as a circumstance capable of ruling out the presumption of innocence. It’s the apples-to-apples argument, as it mixes institutes. The presumption of innocence does not forsake the prisoner on a precautionary basis, whether in flagrante delicto, temporarily, or preventively. Arrested under any of these precautions, his process, and especially the evaluation of the evidence, will remain fully informed by the presumption of innocence, including in the eminently decision-making stages. Imagine a lawsuit, two defendants, one arrested in preventive custody, another responding freely. Pretrial detention was given either to guarantee public order or for the convenience of criminal investigation or to ensure the application of criminal law, it doesn’t matter which of those reasons. When evaluating evidence for sentencing purposes, is there any reason to apply the presumption of innocence rule only in favor of the one who has not been pre-trial detained? Evidently not. Being guilty is not a presupposition of the preventive decree. Provisional arrests do not exclude the article 5, item LVII of the CF. The aforementioned constitutional provision says that “no one will be considered guilty until the final and unappealable conviction of a criminal sentence”. Now, to impose arrest in flagrante delicto, temporary arrest and preventive arrest, any of them, it is not necessary to consider the accused/indicted guilty. For the person caught in the act, he must be in a state of flagrant crime, which does not mean that he is guilty, since flagrant crime is nothing more than a typical photograph, just one of the elements of the crime. For preventive detention, it is necessary to prove the existence of the crime and sufficient evidence of authorship, which, technically and logically, represents a long distance before the accused is considered guilty. The temporary requires “any evidence admitted in criminal law of authorship or participation in certain crimes , i.e. guilty, far yet, too. Execution of penalty, garlic. Pretrial detention, bugs. Execution of sentence presupposes that the one who fulfills it is guilty. Pretrial detention, no. There is no such assumption in the precautionary prison. The old doctrinal paradox “presumption of innocence/pretrial detention” is a false paradox. If we put the accused, the legal security, the precautionary arrest and the presumption of innocence on a road, we will conclude that they are all going in the same direction. Nobody is in the counterflow. The accused preventively arrested is being transported by the preventive, which is pushed by legal security, and, next to it, is accompanied by the presumption of innocence. For reasons of strict necessity, legal and preventive security limit his freedom, without ever finding him guilty. In this way, in this procedure, whenever it is necessary to evaluate evidence, the presumption of innocence, following closely by the side, intransigent, presents itself and performs its function. And so they go. The four. All in the same direction. Until the end of the road. Until the end of the process.

Third argument. The final and unappealable decision in the constitutional text:  It is stated that the constitutional text does not guarantee that the prison can only begin after the final and unappealable decision. Article 283 of the CPP makes it clear: “No one may be arrested except (…) by written and substantiated order of the competent judicial authority, as a result of a final and unappealable conviction (…)”. It is true that the CF is not expressed to prohibit arrest before the final decision. See: “No one will be considered guilty until the transit of a final and unappealable criminal sentence”. However, unmistakably, it is its meaning. There is a constitutional prohibition for someone to be found guilty before the conviction becomes final. Only the guilty can be executed, since the idea that the innocent can serve time is repugnant to the legal order. The submission to provisional execution of those who were not found guilty by a final and unappealable decision is the application of the constitutional provision read in reverse: “No one will be considered innocent until the final and unappealable criminal sentence”. The existing system could be different, as it was in the past, if there was no constitutional guarantee and the CPP authorized the start of serving the sentence in view of the exhaustion of appeals in the 2nd instance. However, this was not the constitutional option. There is a constitutional clause, and reinforced by express federal law. To defraud this is to disguise oneself as a legislator. Worse, constituent. Much worse, circumventing the stony clause. Some devices of the Federal Constitution are clauses of stone, they are hard, impermeable, consistent, do not conform, inflexible, immutable. They cannot be abolished. Stones, they are called. They can only be interpreted strictly. They cannot be subject to a Proposed Amendment (PEC). They cannot be violated on the initiative of any of the Powers, since they aim to give stability to the nation. art  .  _ _ Being a stony clause, there is no way to relativize its value. Introducing legal certainty in the clause to place the one who was not found guilty to serve a sentence before the final decision characterizes an arbitrary intervention.

Doctrine

Adel El Tasse:  The return of the “provisional execution” of the sentence . Legal content. Lawyer and professor of criminal law Adel El Tasse criticizes the fractional importation of foreign institutes. Watch the teacher’s reason. If we continue to adopt doctrines “in pieces”, and introduce new alien devices through the legislative process, the criminal process will eventually become something unintelligible, devoid of harmony. Adel El Tasse comments that “it does not matter, in a comparative sense with the national reality, how many cases a Minister of the German Supreme Court judges or how many judges the Minister of the North American Constitutional Court, because these systems, as already repeatedly stated, are different and , either the Brazilian justice system as a whole is changed or the existing one is assumed, with its own characteristics and relevance of the Superior Courts (…) Regarding the understanding of the Supreme Court,

Video

Flavio Meirelles Medeiros: The presumption of innocence does not end at the second instance .

Doctrine

Afrânio Silva Jardim:  STF cannot assume a legislator role and change the moment of execution of the sentence .  Conjure

Alexandre de Moraes:  Presumption of innocence and judicial effectiveness .  The constitutionalists.

Anna Carollyna Barbosa Gomes : Presumption of innocence and compliance with judgment after delivery of a second degree conviction: Habeas Corpus STF 126.292/SP . Legal Scope. 

Antônio Cláudio Mariz de Oliveira and Ives Gandra da Silva Martins:  Early arrest, judicial error in sight in a punitive culture that grows  Higher School of Police.

Aury Lopes Jr:  End of the presumption of innocence by the STF is our legal 7 to 1 . Conjure

Damásio de Jesus:  The principle of the presumption of innocence . Legal Content.

Fernanda Valente: “ Guilt is so embedded in the social soul that there is no room for innocence ” . Interview with Antonio Cláudio Mariz de Oliveira. Conjure

Flavio Meirelles Medeiros:  Refuting the three main foundations of the thesis of the legality of the provisional execution .Jusbrasil.

Guilherme Nucci:  The decision of the STF regarding the fulfillment of the sentence after the judgment of the 2nd degree of jurisdiction and the presumption of innocence   guilhermenucci.com.br.

Guilherme Nucci:  Presumption of guilt, anticipated penalty and paradigm of illegality: the antitheses of the Democratic State of Law  guilhermenucci.com.br.

Gustavo Badaró:  It is reckless to admit that the STF can “create” a new concept of final and unappealable decision . Conjure

José Roberto Batochio:  Understanding the Supreme Court and the state of innocence under attack . Conjure

José Roberto Batochio:  Understanding the Supreme Court and the state of innocence under attack .  Conjure

Lenio Luiz Streck:  Second-degree decision exhausts the matter of fact? Is it like this in Bhutan?  Conjure

Lenio Luiz Streck. The presumption of innocence and the impossibility of reversing the burden of proof in criminal matters: the State Courts against the STF . CNJ

Lenio Luiz Streck:  An unanswerable question: when is a law (not) clear?  Conjure

Oscar Vilhena Vieira:  Presumption of Innocence .  The constitutionalists.

Rogério de Campos:  Lula is in prison, Voltaire is dead. Assholes  diplomatique.org.br. On the presumption of innocence.

Jurisprudence

Execution of sentence soon after the decision of the jury court:  Conviction by the jury court implies the immediate possibility of execution of the sentence ( HC 140.449, rel. p/ o ac. min. Roberto Barroso, DJE of 1-2-2019 ).

Other issues relating to provisional enforcement

Will we also have conditional release? Finally, two curiosities are registered. Once the provisional execution of the sentence has begun in the second instance, and the entire sentence has been served before the defense’s appeal is judged by the Superior Courts, what name will be given to freedom? “Provisional” freedom? Right. We know. Definitive. But there is no doubt that the innocent/guilty person has the right to have his appeal judged, since his right to fair compensation cannot be withdrawn in the case of judicial error. It is a serious mistake, since it is a matter of serving a full sentence for an innocent person, something very different from giving freedom to someone who was held in pre-trial detention and was acquitted. The second curiosity concerns when, in the same previous case, being the prosecution the resource to increase the sentence, what name will be given to freedom? Conditional release? We will then pass interruption of execution , and “conditional release”, which could be transformed into what could be called an  interruption of liberty , which will occur when the accused is already released for having served the sentence, and the prosecution’s resource to increase the sentence is provided, with a new balance of sentence to be served. On better reflection, one can already consider creating a new chapter in procedural law, and to deal specifically with the phase following execution, which is conditioned to appeal results. Creating right, we conceive new institutes. These are the risks of legislating with jurisdiction.

Is the preventive extinct from the 2nd instance?  In the face of so many comings and goings around provisional execution, the impression given is that everyone has forgotten that preventive detention exists, which has a great advantage over provisional execution, and can be applied from the police investigation stage. Once his requirements are met (guarantee of public order, economic order, for the convenience of criminal instruction, or to ensure the application of criminal law, when there is proof of the existence of the crime and sufficient evidence of authorship), the indicted/accused can respond to any the process, from its beginning to its end, arrested. Obviously, once the accused is in prison, there are reasonable deadlines to be obeyed.

Risks of institutional backlash:  The conservative interpretation of criminal law and criminal procedure has advanced impressively in recent years. Not even absolute nulls escaped. Even them, the absolute ones, can already be remedied by “proving” that there is no damage, according to a jurisprudential current in formation. Who knows how this proof is obtained! It is the same as saying   the absence of that Judge in the Plenary Court in that session was not necessary for the realization of justice. At least, looking at the decisions, ‘there is no proof of prejudice, that is, there is no proof that the decisions would be better . What insight! Impossible to prove. Only if we compare the session he didn’t attend with the one he did. What is impossible. We are not saying that the lack of a Judge in the Plenary implies nullity. It’s not that. We are just giving an example of the reasons why it is impossible to prove harm in nullities. The attempt to prove the damage (a better collegiate decision) caused by the effect that was not produced (votes and demonstrations) due to the absent cause/form (missing judge) is pointless. It is admirable that they created this thesis, that of the possibility of proving the absence of prejudice in absolute nullities! Well… we take a closer look at these issues in  Article 563 and following. Returning to the presumption of innocence. About it, Minister Lewandowski makes a timely warning: “This precept was written by the members of the National Constituent Assembly – exactly to protect the nation against the repetition of the excesses committed during the exception regime that had just been overcome -, at all evidence, does not allow any exegesis in the sense of mitigating, whatever the pretext, this very relevant guarantee instituted in favor of all people without distinction, under penalty of irreparable institutional setback” ( Minister Ricardo Lewandowski – STF – HC 152.752 ) .

State of Defense and Electoral Code

Imprisonment during the State of Defense:  In addition to these cases expressly placed in the CPP, there is also the possibility of imprisonment during the State of Defense provided for in  article 136, paragraph 3, item I, of the Federal Constitution , according to which, during the State of Defense, Defence, imprisonment for a crime against the State may be determined by the executor of the measure. Even in that case, it must be communicated immediately to the competent judge, who will relax it if it is not legal. 

Article 236 of the Electoral Code:  Law  n. 4,737/65 (Electoral Code) imposes a temporal limitation on the right to arrest, since, according to its provision 236, no authority may, from five days before and up to 48 hours after the end of the election, arrest or detain any voter, except in flagrante delicto or in by virtue of a criminal sentence for a non-bailable crime, or even for disrespecting the safe-conduct. Members of reception desks and party agents, during the exercise of their functions, may not be detained or arrested, except in the case of flagrante delicto; candidates will enjoy the same guarantee fifteen days before the election. In the event of any arrest, the prisoner will be immediately taken to the presence of the competent judge, who, if the illegality of the detention is verified, will relax it and promote the responsibility of the coercer.

Constitutional rules relating to imprisonment

Constitutional provisions relating to imprisonment:  There are several constitutional provisions, in the Title  of Fundamental Rights and Guarantees , article 5, which address imprisonment. The items of Article 5 are as follows: 

LIV  – no one shall be deprived of liberty or of their property without due legal process; 

LXI  – no one shall be arrested except in flagrante delicto or by written and substantiated order of a competent judicial authority, except in cases of military transgression or strictly military crime, defined by law; 

LXII  – the arrest of any person and the place where he is found will be communicated immediately to the competent judge and to the prisoner’s family or to the person indicated by him; 

LXIII  – the prisoner will be informed of his rights, including the right to remain silent, being assured the assistance of his family and a lawyer; 

LXIV  – the prisoner has the right to identify those responsible for his arrest or for his police interrogation;

LXV  – the illegal arrest will be immediately relaxed by the judicial authority;

LXVI  – no one shall be taken to prison or kept there, when the law admits provisional release, with or without bail; 

LXVII  – there shall be no civil imprisonment for debt, except that of the person responsible for the voluntary and inexcusable default of an alimony obligation and that of the unfaithful trustee; 

LXVIII – habeas corpus  shall be granted   whenever someone suffers or is threatened with violence or coercion in their freedom of movement, due to illegality or abuse of power;

Unfaithful trustee, special courts and prison for investigation

Unfaithful depositary: Article 5, item LXVII of the CF  provides  that “there shall be no civil imprisonment for debt, except that of the person responsible for the voluntary and inexcusable default of an alimony obligation and that of the unfaithful depositary”. However, the  binding Precedent 25 of the STF  prohibits this type of arrest:  The civil arrest of an unfaithful depositary is unlawful, whatever the type of deposit  (see the  debate on the approval of the Precedent  and also  the jurisprudence after its edition ). In the same vein, STJ Precedent 419 . 

Special Courts:  The police authority, becoming aware of the occurrence, will draw up a detailed term and forward it immediately to the Court, with the author of the fact and the victim. The author of the fact who, after the drafting of the term, is immediately sent to the court or assumes the commitment to appear before him, will not impose arrest in flagrante delicto, nor will bail be required. In the case of domestic violence, the judge may determine, as a precautionary measure, your removal from the home, domicile or place where you live with the victim.    

Imprisonment for investigation:  Imprisonment for investigation is constitutionally prohibited, since  article 5, item LXI of the CF  imposes that “no one shall be arrested except in flagrante delicto or by written and substantiated order of a competent judicial authority”. Therefore, nowadays, that prison that was common in times of military period, in which people were arrested, taken to the Police Station, where they were investigated there. However, the rapid approach of people in public places remains authorized, including the requirement of identification and verification that they are not fugitives. Such caution is contained in the general power of the police.

Military crime, alimony and abuse of authority

Imprisonment in case of military transgression or crime: Article 5, LXI of the CF  provides   that “no one shall be arrested except in flagrante delicto or by written and substantiated order of a competent judicial authority, except in cases of military transgression or strictly military crime, defined in law”. 

Non-payment of alimony:  Article  283  does not exhaust the cases in which someone can be arrested by court order. Failure to pay child support may result in imprisonment by civil jurisdiction order. The provision is constitutional and is found in  Article 5, LXVII of the CF.

Abuse of authority:  Imprisonment carried out by authority outside the legal permissives amounts to the crime of abuse of authority, in accordance with the provisions of Law n. 13,869/2019 . 

Paragraph 1

Limitation on the application of precautionary measures:  According to  paragraph 1 of article 283 , personal precautionary measures do not apply to the offense that is not isolated, cumulative or alternatively imposed with a custodial sentence. Thus, if there is no provision for the deprivation of liberty for the crime, the application of any precautionary measure, whether prison or other than prison, is ruled out. 

Paragraph 2

Home inviolability:  It is a provision of  paragraph 2 of article 283 of the CPP  that the arrest can be carried out on any day and at any time, respecting the restrictions related to the inviolability of the home. The foundation is constitutional, since, as  Article 5, item XI of the CF assures , “the house is the individual’s inviolable asylum, no one being able to enter it without the resident’s consent, except in the case of flagrante delicto or disaster, or to provide help, or, during the day, by court order . In the event that the executor of the arrest warrant verifies, with certainty, that the defendant has entered or is in a house, the resident will be summoned to hand him over, in view of the arrest warrant. If he is not immediately obeyed, the executioner will summon two witnesses and, being daylight, will enter the house by force, breaking down the doors if necessary; if it is night, the executor, after summoning the resident, if he is not heeded, will have all the exits guarded, making the house incommunicado, and, as soon as dawn breaks, he will break down the doors and carry out the arrest. The CPC applies: “The procedural acts will be carried out on business days, from 6 (six) to 20 (twenty) hours” ( article 212 of the CPC ).

House search. Remission:  About the house search, see comments to  articles 240 ,  241  and  293 .

Jurisprudence

 Forced entry into a home without a court order is only licit if there are elements that indicate the commission of a crime: occurrence, inside the house, of a situation of flagrante delicto, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed ( RE 603.616, rel. min. Gilmar Mendes, judgment on 4 and 5- 11-2015, ruling pending publication  – Newsletter 806, Plenary, General Repercussion).

Home invasion without sufficient evidence vitiates the flagrante delicto related to drugs found: Drug trafficking. Flagrant. Home as an expression of the right to privacy. Inviolable Asylum. Constitutional exceptions. Restrictive interpretation. Home invasion by the police. Just cause need. The mere intuition of the police authority of possible trafficking practiced by an individual, based solely on his escape from a place supposedly known as a point of sale of drugs in the face of an imminent police approach, does not constitute just cause capable of authorizing home invasion (…) In the event that the accused he is in a place supposedly known as a drug sales point, and, when he sees police patrolling, he flees to his residence (for unknown reasons) and, as a result, is pursued by police, without, however, having a context facts from which it can be concluded (or, at least, suspicions have been founded), that criminal conduct also takes place inside the residence, the question of the legitimacy of police action, when invading the home, becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance ( becomes extremely controversial. Thus, unless it can be inferred, from factors other than the mere flight from the imminent police approach, that the evader is committing a crime of drug trafficking, or another crime of a permanent nature, inside the residence where he committed homicide, there will be no serious reason for mitigating the inviolability of the home, even if there is a subsequent discovery and seizure of drugs inside the residence – a circumstance that will prove to be merely accidental -, under penalty of emptying this constitutional franchise of the highest importance (REsp 1.574.681-RS, Rel. Min. Rogério Schietti Cruz, unanimously, judged on 4/20/2017, DJe 5/30/2017 – Newsletter 606 ). 

Comment: This is an interesting case. The nullities of the investigation and the flagrante delicto do not affect the process (but may give rise to the lack of just cause for criminal action). However, in the judgment above, we are not facing the nullity of the arrest warrant in flagrante delicto itself, but of the arrest warrant that constitutes illicit evidence. The nullity of the record is due to it being illegal evidence. Nullities of the investigation and the flagrante delicto do not affect, in principle, the process, since the investigation and the process are distinct legal relations, the former having an administrative nature and the latter procedural. In the concrete case there is this effect. The nullity of the investigation, which stems from the fact that it is illegal evidence, reaches the process affecting its validity.

Forced entry into the home and Theme 280 of the STF: In the judgment of RE n. 603,616 RG/RO, under the general repercussion regime, the Federal Supreme Court established the thesis that “the forced entry into a home without a court order is only lawful, even at night, when supported by well-founded reasons, duly justified a posteriori, that indicate that a situation of flagrante delicto has occurred inside the house, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed” ( Theme 280/STF ).

Anonymous denunciation and home invasion. Drugs: The existence of an anonymous complaint of the practice of drug trafficking, added to the accused’s flight when he saw the police, by themselves, do not constitute well-founded reasons to authorize the police to enter the accused’s home without his consent or without a court order ( RHC 89.853-SP , Rel. Min. Ribeiro Dantas, Fifth Panel, unanimously, judged on 02/18/2020, DJe 03/02/2020).

Forced entry into the home and Theme 280 of the STF:  In the judgment of RE n. 603,616 RG/RO, under the general repercussion regime, the Federal Supreme Court established the thesis that “the forced entry into a home without a court order is only lawful, even at night, when supported by well-founded reasons, duly justified a posteriori, that indicate that a situation of flagrante delicto has occurred inside the house, under penalty of disciplinary, civil and criminal liability of the agent or authority, and nullity of the acts performed” ( Theme 280/STF ).

Anonymous denunciation and home invasion. Drugs:  The existence of an anonymous complaint of the practice of drug trafficking, added to the accused’s flight when he saw the police, by themselves, do not constitute well-founded reasons to authorize the police to enter the accused’s home without his consent or without a court order ( RHC 89.853-SP , Rel. Min. Ribeiro Dantas, Fifth Panel, unanimously, judged on 02/18/2020, DJe 03/02/2020).

Property without signs of habitation: There is no nullity in the search and seizure carried out by police, without a prior court order, in an apartment that does not reveal signs of habitation, not even temporarily or occasionally, if the apparent absence of residents in the place is combined with the founded suspicion that the property is used to commit a permanent crime ( HC 588.445-SC , Reporting Min. Reynaldo Soares da Fonseca, Fifth Panel, unanimously, judged on 08/25/2020, DJe 08/31/2020) .

Proof of consent to enter the residence : Proof of legality and voluntary consent to enter the suspect’s residence is the responsibility of the State, in case of doubt, and must be provided with a declaration signed by the person who authorized entry into the residence, indicating, whenever possible, witnesses of the act. In any case, the operation must be recorded on audio-video and the evidence preserved for the duration of the process ( HC 598.051/SP , Reporting Min. Rogério Schietti Cruz, Sixth Panel, unanimously, judged on 03/02/2021).

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