Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 318º CPP – Replacement of preventive by home care.

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Art. 318. The judge may replace preventive detention with house arrest when the agent is: 
I – over 80 (eighty) years old;
II – extremely debilitated due to serious illness;
III – essential for the special care of a person under 6 (six) years of age or with a disability;
IV – pregnant woman;
V – woman with a child of up to 12 (twelve) years of age;
VI – man, if he is solely responsible for the care of a child up to 12 (twelve) years of age.
Single paragraph. For the replacement, the judge will require suitable proof of the requirements established in this article.

Cases, risk weighting and proof of requirements

Pretrial detention carried out at home:  Article 318 provides for cases in which pretrial detention can be carried out at the prisoner’s home. They are: when the agent is over 80 years old, when he is debilitated due to illness, when he is indispensable to the care of a child under six years of age or with a disability, when it is a pregnant woman, woman with a child of up to twelve years old incomplete years of age, or a man, if he is solely responsible for the care of a child up to the age of twelve.

Exemplary role:  The role is exemplary. The judge, using his general power of caution, can determine that in other specific cases the preventive measure must be carried out at home (with an ankle bracelet). Preventive is not pity, it is caution. It is not intended to punish. It must be the least burdensome as possible for the accused. If there is adequacy, there is no impediment. On the contrary, there is indication. See subtitle  Exemplary or exhaustive list? The general power of caution of the criminal judge  in the title Arrolamento merely exemplifying and general power of caution of the criminal judge , in comments to article 319. 

Judicial weighing of the risks:  The magistrate must carefully consider the circumstances of the specific case, before deciding on the granting of the benefit. The interpreter must complement the examination of this device 318 with the purposes pursued by  article 312 .

Evidence of the foreseen situations : The sole paragraph of article 318 requires suitable proof of the hypotheses listed in the items. Age is confirmed with the birth certificate or identity document. Illness, weakness and high risk in pregnancy are proven either through expertise or through certificates and medical opinions. They may be private doctors or officials appointed by the magistrate.

Replacement of special prison by house arrest:  See the subheading Substitution of house arrest in the Generalities of special prison heading , in notes to article 295.

House arrest while serving the sentence:  There is an express provision in the Law for the criminal execution of imprisonment served at home. Article  117 of Law no. 7,210/84 provides that the collection of the beneficiary of the open regime in a private residence will only be admitted when it comes to: I – convict over seventy years old; II – convict suffering from serious illness; III – convicted with a minor child or physically or mentally handicapped; IV – pregnant convict. The usefulness of house arrest while serving a sentence has been extended by jurisprudence. There are several STJ judgments granting the benefit of house arrest to convicts who are serving a sentence in the semi-open regime, if there is no adequate establishment to receive them or when there is a lack of vacancy. Perfect understanding. The right of the prisoner cannot be harmed by the omission of the State.

Doctrine

Roberto Delmanto:  Human justice, as such, cannot and should not be inhuman . Conjure

Vladimir Passos de Freitas:  House arrest of a minor’s mother requires common sense . Conjure 

Adel El Tasse:  House Prison: The Trend of Its Strategic Employment in Reducing Prison Overcrowding . Crumbs. As we have argued, preventive detention, as it is a precautionary power (power that must be applied within the limits of need and appropriately), can be replaced by house arrest. This is one of the beneficial effects of recognizing the general power of judicial injunction. In this fascinating text, professor Adel El Tasse goes further to foresee the possibility of serving a sentence in a home regime. Why not for certain convicts? Why not establish a certain distance in the sentence, a certain perimeter within which the condemned can circulate with the domicile as the central point? Or a certain time and route to and from work? Why not adapt the “domestic circuit” to the convict? Your personal conditions and circumstances, including those of the crime and the victim(s)? After reading Adel El Tasse’s provocative text, we are left with these questions looking for answers. In the words of Professor Adel: “Recently the news portrayed a lady, faced with an attack by a snake, in a region of Brazilian forest, who screamed at the press and demanded justice and that it was no longer possible to accept such impunity, as if It was possible to capture snakes, interrogate them and find out who was responsible for the attack and, then, perhaps fix a prison sentence in one of the fetid Brazilian jails. (…) In fact, the cry to combat impunity for the snake attack clearly demonstrates that the anti-impunity discourse has assumed, in contemporary Brazilian society, the role that the devil had in the Middle Ages, that is, that of being abstract, not palpable, but which arouses panic and thus makes people accept torture, arrests of innocent people, convictions with fragile and vitiated evidence, in short, a series of atrocities that took place in the name of confronting the devil in the past and that, worryingly, reoccur on a large scale to combat impunity. (…) By the way, it should be mentioned that the deprivation of liberty should not be associated with additional suffering other than the limitation in the person’s ability to come and go, so that house arrest can fulfill this function for convicts in that the crime committed is not included in the criminal universe in which not being sent to prison allows the person to continue to commit a crime (…) This set of ideas cannot be ignored and, on the contrary, should be the object of careful reflection in order to promote advances in the use of house arrest, either as a precautionary measure to guarantee the criminal process, in the form advocated by the new wording of the Code of Criminal Procedure, or as a mechanism for complying with the custodial sentence for prisoners. convicted in which the prison system is not particularly necessary. (…) As already highlighted, the cost of house arrest for the State, once the electronic control system has been implemented, becomes null, with the prisoner bearing its expenses and staying away from the corrupt prison environment”. Adel Tasse quotes passage from the work or as a mechanism for complying with the custodial sentence for convicts in which the prison regime is not particularly necessary. (…) As already highlighted, the cost of house arrest for the State, once the electronic control system has been implemented, becomes null, with the prisoner bearing its expenses and staying away from the corrupt prison environment”. Adel Tasse quotes passage from the work or as a mechanism for complying with the custodial sentence for convicts in which the prison regime is not particularly necessary. (…) As already highlighted, the cost of house arrest for the State, once the electronic control system has been implemented, becomes null, with the prisoner bearing its expenses and staying away from the corrupt prison environment”. Adel Tasse quotes passage from the work  Criminal dogmatics and criminal policy by Claus Roxin, where this scholar, when analyzing the development that should be followed by Criminal Law in the current century, writes: “one can imagine house arrest as the new penalty, attenuated in the face of deprivation of liberty, whose control will be no problem thanks to modern electronic control systems. This sanction has the advantage of not costing anything, of not bringing with it any danger of criminal contamination and of giving a more humane form to the deprivation of liberty, whichever way it is felt is serious” .

Video

Flavio Meirelles Medeiros: Pretrial detention carried out at home or house arrest

Jurisprudence

Collective habeas corpus granted. Replacement of preventive care with home care for pregnant women, mothers, or mothers of children and the disabled under their care. Supreme Court decision. Minister Ricardo Lewandowski: XIV – Order granted to determine the replacement of preventive detention by house arrest – without prejudice to the concomitant application of the alternative measures provided for in article 319 of the CPP – of all arrested women, pregnant women, puerperal women or mothers of children and the disabled, under the terms of art. 2 of the ECA and the Convention on the Rights of Persons with Disabilities (Legislative Decree 186/2008 and Law 13.146/2015), related in this process by DEPEN and other state authorities, as long as this condition lasts, except in cases of crimes committed by them through violence or serious threat, against their descendants or, even, in very exceptional situations, which must be duly substantiated by the judges who deny the benefit. XV – Extension of the official order to all other women prisoners, pregnant women, XIV – Order granted to determine the replacement of preventive detention by house arrest – without prejudice to the concomitant application of the alternative measures provided for in article 319 of the CPP – of all arrested women, pregnant women, puerperal women or mothers of children and the disabled, under the terms of art. 2 of the ECA and the Convention on the Rights of Persons with Disabilities (Legislative Decree 186/2008 and Law 13.146/2015), related in this process by DEPEN and other state authorities, as long as this condition lasts, except in cases of crimes committed by them through violence or serious threat, against their descendants or, even, in very exceptional situations, which must be duly substantiated by the judges who deny the benefit. XV – Extension of the official order to all other women prisoners, pregnant women,Justice Ricardo Lewandowski – STF – HC 143.641 ).

House arrest for the father of a minor child. Celso Kipper:  This is an interesting decision handed down by Judge Celso Kipper. Despite the fact that the case involved crimes against public administration, some circumstances were considered, including the young age of the child, the absence due to the recent death of the child’s mother, the fact that the accused was not a member of a criminal faction financed by drug trafficking practice of rebellions, robberies, kidnappings, murders. Moreover, there was no news of any pending diligence of search and seizure of evidence. Celso Kipper concludes: “It is evident, through such praetorian directive, that the new wording of article 318 of the Code of Criminal Procedure, attributed by Law n. 13,257/2016, has  the ratio ensure maximum effectiveness to the constitutional principle of full protection for children and adolescents, enshrined in article 227 of the 1988 Magna Carta. 7-year-old child, whose mother had recently died of cancer, to carefully analyze the possibility of replacing  carcer ad custodiam  with house arrest, leaving the extreme measure to situations in which concrete elements clearly demonstrate the insufficiency of legislative innovation ( Federal Judge Celso Kipper – TRF4 – HC 5037285-60.2018.4.04.0000 ).

Replacement of preventive care with home care for pregnant women, mothers, or mothers of children and the disabled under their care. Overruled vote by Minister Nefi Cordeiro: (…) this understanding does not differ from the decision recently handed down by the 2nd Panel of the Federal Supreme Court, in the judgment of collective Habeas Corpus n. 143.641/SP, which determined the replacement of preventive detention by house arrest – without prejudice to the concomitant application of the alternative measures provided for in article 319 of the CPP – of all arrested women, pregnant women, puerperal women, or mothers of children and the disabled under their control. custody, pursuant to art. 2 of the ECA and the Convention on the Rights of Persons with Disabilities (Legislative Decree 186/2008 and Law 13.146/2015), as well as adolescents subject to socio-educational measures, in an identical situation in the national territory, as long as such condition lasts, except in cases of crimes committed by them through violence or serious threat, against their descendants or, still,Nefi Cordeiro – STJ – HC 469839 ).

Possibility of replacing pre-trial detention with house arrest (art. 318 of the CPP):  It is possible to replace pre-trial detention with house arrest, when the indispensability of special care for a person under 6 years of age is demonstrated (art. 318, III, of the CPP) and the prison decree does not indicate concrete peculiarities to justify the maintenance of the precautionary segregation in a prison establishment ( HC 291.439-SP, Justice Judge Rogerio Schietti Cruz, judged on 5/22/2014 – Newsletter nº 544 ).

Prisoners. Advanced stage of pregnancy and house arrest:  Prisoners in an advanced stage of pregnancy are entitled to house arrest ( HC 128.381, rel. min. Gilmar Mendes, judgment on 6/9/2015, judgment published in the DJE of 7/1/2015  – Informativo 789, Second Panel).

Replacing  pretrial detention with  house arrest requires proof of a serious illness, which entails extreme weakness, and the impossibility of providing proper medical care in the penal establishment. Source: jurisprudence in theses (STJ).

Judgments:

RHC 054613/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 02/24/2015, DJE 03/03/2015

RHC 053486/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/16/2014, DJE 02/02/2015

HC 290314/CE, Rel. Minister Walter de Almeida Guilherme (Judge summoned from the TJ/SP), Fifth Panel, judged on 10/21/2014, DJE 11/03/2014

AgRg in HC 302074/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 09/16/2014, DJE 10/01/2014

HC 299219/PR, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/02/2014, DJE 09/18/2014

RHC 047380/AL, Rel. Minister Moura Ribeiro, Fifth Panel, judged on 05/27/2014, DJE 05/30/2014

RHC 046144/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/20/2014, DJE 05/29/2014

RHC 040043/SP, Rel. Minister Laurita Vaz, Fifth Panel, judged on 04/03/2014, DJE 04/14/2014

AgRg in RHC 042511/MS, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 02/25/2014, DJE 03/07/2014

RHC 036480/RJ, Rel. Justice Marilza Maynard (TJ/SE Judge), Sixth Panel, judged on 12/17/2013, DJE 02/13/2014

Pretrial detention may be replaced by house arrest when the agent is proven to be essential for the special care of a person under 06 (six) years of age or with a disability. Source: jurisprudence in theses (STJ).

Judgments:

HC 287277/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/18/2014, DJE 02/04/2015

HC 303827/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 11/25/2014, DJE 12/15/2014

RHC 047184/SC, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 11/20/2014, DJE 12/12/2014

RHC 042958/AL, Rel. Minister Marilza Maynard (Court Judge summoned from the TJ/SE), Sixth Panel, judged on 08/21/2014, DJE 09/03/2014

HC 291439/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/22/2014, DJE 06/11/2014

HC 283557/RS, Rel. Minister Laurita Vaz, Fifth Panel, judged on 04/08/2014, DJE 04/15/2014

HC 255838/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 11/21/2013, DJE 03/11/2014

RHC 038144/SP, Rel. Minister Regina Helena Costa, Fifth Panel, judged on 02/11/2014, DJE 02/17/2014

HC 243268/SP, Rel. Minister Adilson Vieira Macabu (Judge summoned from the TJ/RJ), Fifth Panel, judged on 08/16/2012, DJE 09/19/2012

Request to replace pre-trial detention with house arrest must be analyzed by the court of origin:  The request to replace pre-trial detention with house arrest, pursuant to item V of art. 318 of the Code of Criminal Procedure (CPP), recently included by Law 13.257/2016, must be analyzed by the original court ( HC 132.462 AgR-ED, rel. min. Dias Toffoli, judgment on 5-10-2016, DJE of 6 -6-2016  – Bulletin 825, Second Panel).

Woman with a child of up to twelve years of age and house arrest:  Pre-trial detention may be replaced by house arrest when the agent is a woman with a child of up to twelve years of age, and the court must establish the respective conditions ( HC 136.408, rel. min. Marco Aurélio , DJE of 19-2-2018 ).

Replacement of pretrial detention with house arrest: You have the right to replace pretrial detention with house arrest — provided that the requirements of art. 318 of the Code of Criminal Procedure (CPP) (1) and no crimes committed through violence or serious threat or against their own children or dependents — the parents, if they are solely responsible for the care of a child under 12 years of age or a person with a disability, as well as other arrested persons, other than the mother or father, if they are essential for the special care of a person under 6 years of age or with a disability ( HC 165704/DF, rel. Min. Gilmar Mendes, judgment on 10.20.2020 ).

Conviction and house arrest: It is not possible to grant house arrest to the mother of a child up to twelve years of age sentenced to serve a sentence in a closed regime if there is already a final conviction. The provisions of art. 318 of the Code of Criminal Procedure (CPP)69 is applicable in cases of pre-trial detention, being inappropriate when it comes to executing a conviction achieved by major estoppel (HC 177.164, rel. min. Marco Aurélio, DJE of 5-4-2020 ).

House arrest and serious illness: House arrest can be granted to pre-trial detainees who are extremely weak due to serious illness Code of Criminal Procedure (CPP), art. 318, II, if it is fully demonstrated that the medical treatment needed by the person in custody cannot be provided at the prison or in a hospital ( HC 153.961 , rel. min. Dias Toffoli, DJE of 5-25-2020.).

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