Art. 295. The following shall be taken to barracks or special prison, at the disposal of the competent authority, when subject to arrest before final conviction:
I – Ministers of State;
II – the governors or intervenors of States or Territories, the mayor of the Federal District, their respective secretaries, municipal mayors, councilors and chiefs of Police; (Wording amended by Law No. 3,181, dated 6.11.1957)
III – Members of the National Parliament, the National Economy Council and the State Legislative Assemblies;
IV – citizens registered in the “Book of Merit”;
V – the officers of the Armed Forces and the military of the States, of the Federal District and of the Territories; (Wording provided by Law No. 10,258, of 7.11.2001)VI – judges;
VII – graduates from any of the higher faculties of the Republic;
IX – ministers of the Court of Auditors;
X – citizens who have already effectively exercised the role of juror, except when excluded from the list due to inability to exercise that role;
XI – the police chiefs and civil guards of the States and Territories, active and inactive. (Wording provided by Law No. 5,126, of 9/20/1966)
§ 1 The special prison, provided for in this Code or in other laws, consists exclusively of being held in a place other than ordinary prison. (Included by Law No. 10,258, of 7/11/2001)
§ 2 If there is no specific facility for the special prisoner, he/she will be collected in a separate cell in the same facility. (Included by Law No. 10,258, of 7/11/2001)
§ 3 The special cell may consist of collective accommodation, meeting the health requirements of the environment, due to the concurrence of factors of aeration, sunlight and thermal conditioning suitable for human existence. (Included by Law No. 10,258, of 7.11.2001)
§ 4 The special prisoner will not be transported together with the common prisoner. (Included by Law No. 10,258, of 7/11/2001)
§ 5 The other rights and duties of the special prisoner will be the same as those of the common prisoner. (Included by Law No. 10,258, of 7/11/2001)
Special prison generalities
Who has the right to special imprisonment: Persons who carry out the functions listed in the items of this provision, and in others contained in sparse legislation, and who have not been definitively convicted, have the right to special imprisonment, which is carried out in a special establishment or in quarter.
Where the special prison is carried out: The special prison consists of being held in a different place from the common prison. Therefore, those who have the right to special imprisonment should not be imprisoned in penitentiaries that house common prisoners. If there is no specific establishment for the special prisoner, he will be “collected in a separate cell”. A separate cell means a cell in which the provisional detainee, with the right to a special prison, is separated from other prisoners. In the absence of this, the special cell may consist of collective accommodation, meeting the health requirements of the environment, due to the competition of aeration, sunlight and thermal conditioning factors suitable for human existence.
Other rights of the special prisoner: The other rights and duties of the special prisoner will be the same as those of the common prisoner.
Transportation of special prisoners: Special prisoners cannot be transported together with ordinary prisoners.
Justification of special imprisonment: Special imprisonment is a function prerogative. Some writers consider it a privilege. Its unconstitutionality was not recognized. In one case or another, it may eventually characterize privilege, but in many cases special imprisonment is justified, in view of the need to protect physical integrity and the right to life. It would be irresponsible to place police officers, magistrates, judges, criminal defenders (public or lawyers with some experience in the criminal area) together with common prisoners. For these people, special imprisonment is fully justifiable. It matters little that they are no longer performing their duties. They persist with the right to special imprisonment. Your past is not erased from the minds of dangerous criminals who may seek revenge.
Substitution for house arrest: Law no. 5.256/67, in its article 1, that, in locations where there is no adequate establishment for the detention of those entitled to special imprisonment, the judge, considering the seriousness and circumstances of the crime, after hearing the representative of the Public Prosecutor’s Office, may authorize the arrest of the defendant or accused person in the same residence, from which he cannot leave without prior judicial consent. This device was not revoked by law 10.258/2001, which reworded paragraphs 1, 2 and 3 of art. 295 of the CPP, since there may not be, in certain locations, a separate location, a separate cell, or collective accommodation. In other words, the prison alternatives in article 295 may not be adequate for the fulfillment of the special prison, in which case the accused may have the special prison replaced by the house arrest, provided by the Law n. 5,256/67 .
Jurisprudence
House arrest in place of special imprisonment : “Although Law No. 5,256/1967 is still applicable, which provides for house arrest in the absence of a dedicated establishment for special imprisonment, the contours of special imprisonment introduced by Law No. 10,258/2001 must be considered” ( HC 117959 – STF – Rapporteur Minister LUIZ FUX ). “House arrest is restricted to the hypotheses provided for in article 117 of the Penal Execution Law, admitted, exceptionally, when there is no suitable place for special imprisonment” – (STJ – Regimental Appeal in special appeal 987175- Minister Sebastião Reis Júnior ).
Defendant with lawsuits in progress and others with final decision. Absence of the right to special imprisonment : “Furthermore, there was a final and unappealable decision on another conviction; thus, as already decided by this Court, the patient who bears criminal convictions with final judgment is no longer provisional prisoner, even if he has other criminal actions in progress against him, thus losing the right to special imprisonment” ( HC 149141 – Minister Napoleão Nunes Maia Filho ).
Persons entitled to special imprisonment
Special imprisonment in extravagant legislation: In extravagant legislation, special imprisonment is provided for people other than those indicated in the CPP, namely, Merchant Marine officers, union leaders and administrators, merchant aircraft pilots, civil police of the Federal District and the Union , state and territory civil police officers, 1st and 2nd grade teachers, security guards and cashiers, guardianship counselor, state, federal district and territory DPU members.
Lawyer and special prison: Article 7, item V of Law n. 8,906/94 (Advocacy Statute), constituting the right of the lawyer not to be arrested, before a final sentence, but in a General Staff room, with decent facilities and amenities, as recognized by the OAB, and, failing that, under house arrest . The lawyer has the right, in the case of provisional arrest before the sentence becomes final, to be arrested in a General Staff room. In the absence of availability in the district, the prison will be house. This understanding was ratified in the Direct Action of Unconstitutionality 1127, which considered article 7, item V, of the Statute of Lawyers constitutional, in the part in which it determines the collection of lawyers in the General Staff room and, failing that, in prison home. The expression “thus recognized by the OAB ” was declared unconstitutional.
Member of the Public Prosecutor’s Office and special prison: The prosecutor has the right to be held in custody or placed under house arrest or in a special room of the General Staff, by order and at the disposal of the competent Court, when subject to arrest before the final judgment (article 40 , item V, of Law n. 8.625/93 – National Organic Law of the Public Ministry). The Public Prosecutor has the right to be taken to a special prison or to a special General Staff room, with the right to privacy and at the disposal of the competent court for the trial, when subject to arrest before the final decision; and the separate dependency in the establishment where the sentence has to be served ( Complementary Law 75/93, article 18, II, “e ” – Statute of the Public Ministry of the Union).
Judge and special prison: The judge has the right to be taken to the special prison, or to the special room of the General Staff, by order and at the disposal of the Court or the competent special body, when subject to arrest before the final judgment ( Complementary Law n . 35/79, article 33, item III – Organic Law of the National Judiciary).
Member of the Public Defender’s Office and special prison: It is the prerogative of the Public Defender, both in the State and in the Union, to be taken to a special prison or special room of the General Staff, with the right to privacy and, after a final conviction, to be taken into custody separately, in the establishment where the sentence has to be served ( Complementary Law n. 80/94 articles 44, item III and 128, item III ).
Police and special prison: The imprisonment of Union and Federal District police officers is regulated by Law n. 4,878/65 . The prescriptions of this law were extended, with Law 5.350/67 , to employees of the Civil Police of the States and Federal Territories, occupying positions of police activity. According to Law 4.878/65, arrested preventively, in flagrante delicto, or due to pronunciation, the police officer, while he does not lose his status as an officer, will remain in special custody, during the course of the criminal action and until the sentence becomes final. He will be kept in a special room of the division in which he serves, under the responsibility of his leader, being forbidden to carry out any functional activity, or leave the division without express authorization from the Court at whose disposal he is. Once the dismissal decree is published in the Official Gazette, the former employee will immediately be sent to a penal establishment, where he will remain in a special room, without any contact with other prisoners not subject to the same regime. Once the conviction becomes final, the employee will be sent to a penal institution,
General Staff Room: The General Staff Room was defined by Minister Sepúlveda Pertence as the compartment of any military unit that, even if potentially, can be used by the group of Officers who advise the Commander of the military organization to carry out their duties. The location must offer decent facilities and amenities – Complaint n. 4,535 . It is an establishment without bars. It can be located in the Army, Navy, Air Force, Fire Department or Military Police.
Jurisprudence of persons entitled to special imprisonment
Lawyer and General Staff room and house arrest : The Advocacy Statute (Law nº 8.906/94), in a norm not repealed by Law nº 10.258/2001 (which amended article 295 of the CPP), guarantees the lawyer, while not the criminal sentence that condemned him, the right to “not be taken into custody (…), but in a General Staff room (…) and, failing that, under house arrest (…)”. The inexistence, in the judicial district or in the Judicial Sections and Subsections, of an establishment suitable for the confinement of the lawyer gives him, before the consummation of the final and unappealable sentence of the condemning criminal sentence, the right to benefit from the regime of house arrest (RTJ 169 /271-274 – RTJ 184/640), Law nº 10.258/2001 is not applicable to it, considering the principle of specialty (HC 109213 – STF – Minister Celso de Mello ). In the same sense: the jurisprudence signed by the Plenary and by the two Panels of that Court is in the sense of guaranteeing the precautionary arrest of legal professionals, duly registered with the Brazilian Bar Association, in a General Staff room, under the terms of article 7, inc. V, of Law nº 8.906/94 (Advocacy Statute), and, if it is not possible or if there are no dependencies defined as such, grant them the right to house arrest ( HC 91150 STF – Minister Menezes Direito). Also in the same sense: I. Complaint: allegation of affront to the authority of the plenary decision of ADIn 1127, 17.05.06, red. for judgment Justice Ricardo Lewandowski: origin. 1. Declaratory of unconstitutionality is considered the decision that – although without making it explicit – removes the incidence of the ordinary norm pertinent to the dispute to decide it under different criteria allegedly extracted from the Constitution. 2. The contested decision, based on the unconstitutionality of article 7, V, of the Statute of Lawyers, rejected the transfer of the claimant – Lawyer, preventively detained in a Federal Police cell, to the General Staff room and, in the absence of this, the concession of house arrest. 3. On this point, he disagreed with the understanding signed by the Federal Supreme Court in ADIn 1127 (17.05.06, red.p/acórdão Ricardo Lewandowski), when Article 7, V, of the Statute of Lawyers was considered constitutional, in the part that determines the confinement of lawyers in the General Staff room and, failing that, under house arrest. 4. Complaint upheld for the complainant to be placed under house arrest – the location of which must be specified by the Court complained of –, except for a possible transfer to the General Staff room. II. “General Staff Room” (L. 8.906, article 7, V): characterization. Precedent: HC 81.632 ( II. “General Staff Room” (L. 8.906, article 7, V): characterization. Precedent: HC 81.632 ( II. “General Staff Room” (L. 8.906, article 7, V): characterization. Precedent: HC 81.632 (STF – Rcl 4535 – Minister Sepúlveda Belongs ). Also in the same sense: the jurisprudence signed by the Plenary and by the two Panels of this Court is in the sense of guaranteeing the precautionary arrest of legal professionals, duly registered with the Brazilian Bar Association, in a General Staff room, under the terms of article 7th, inc. V, of Law nº 8.906/94 (Advocacy Statute), and, if it is not possible or if there are no dependencies defined as such, grant them the right to house arrest (STF – HC 91150 STF – Minister Menezes Direito ).
General Staff Room, with decent facilities and amenities. No need for it to be recognized as such by the OAB. Direct Action of Unconstitutionality 1.127/DF : “By majority vote, the action to declare the unconstitutionality of the expression ‘and control’, contained in § 4 of article 7” ( STF – ADI 1.127/DF – Justice Marco Aurélio ) . In the same sense: STF – HC 109213 – Minister Celso de Mello. And also: It is not up to the OAB to define, at its discretion, the concept of General Staff room, for the purposes of applying Article 7, V, of Law n. 8,906/1994 ( STJ – Regimental Appeal on Appeal in Writ of Mandamus 19175 – Minister Celso Limongi ).
Meaning of “staff room ”: “Compartment of any military unit that, even if potentially, can be used by the group of officers who advise the Commander of the military organization to carry out their duties, the place must offer adequate facilities and amenities” (STF – Complaint 4,535 – Minister Sepúlveda Belongs). In this sense: the expression “staff room” should be interpreted as being a dependency in a military establishment, without bars, with decent facilities ( STF – Complaint 4713 – Justice Ricardo Lewandowski). General Staff means the group of officers who advise the Commander of a military organization (Army, Navy, Air Force, Fire Department and Military Police); therefore, “staff room” is the compartment of any military unit that, even potentially, could be used by them to perform their functions. 2. The distinction that must be made is that, while a “cell” has the typical purpose of imprisoning someone – and, therefore, as a rule, contains bars -, a “room” is only occasionally intended for this purpose. 3. On the other hand, the location must offer “decent facilities and amenities”, that is, adequate hygiene and safety conditions” ( STF – Rcl 4535 STF – Ministro Sepúlveda Belongs). The General Staff Room is defined by its quality as a room and not as a cell or jail. A room installed in the Command of the Armed Forces or other military institutions (Military Police, Fire Department) and which in itself constitutes a heterodox type of prison, since it lacks doors or windows for this specific purpose of incarceration (STF – HC 91089 – Minister Carlos Britto ).
Special arrest of police : There is no illegality in the constriction of police carried out in establishments with special cells, different from those reserved for ordinary prisoners. Precedents ( STJ – RHC 44014 – Minister Maria Thereza de Assis Moura ). The determination for the patient to be collected in a place reserved exclusively for police and former military and civil police officers meets the need for special arrest that requires the precautionary custody of a former police officer (STF – HC nº 174213 – Minister Gilson Dipp ) .
Definitive imprisonment of public security agents : Special imprisonment is applicable only to provisional prisoners; however, it is up to the penitentiary administration to ensure the physical and moral integrity of all convicts, including those who were public security agents, who must be housed in a separate facility, whenever there is a possibility of reprisals from other detainees. Evidenced that the former military police officer, definitively convicted, is collected in an isolated place from the other prisoners, in a penitentiary where there is a specific dependency for former public agents, as in the case, there is no illegal constraint to be remedied in the narrow way of habeas corpus ( STJ – HC 110745 – Minister Laurita Vaz ).
Special prison. Licensed military : The exclusion of the patient from the Military Police, by licensing for the sake of discipline, implies the loss of the right to be confined to barracks or special prison, provided for in article 295 of the CPP. Although the right to special imprisonment is beyond the patient’s reach, the need to keep him segregated from the other pre-trial detainees, as a security measure, should not be neglected, which was duly observed by the Court of origin when it authorized his transfer to the establishment ordinary prison. Unverified illegal constraint ( STJ – HC 257679 – Minister Moura Ribeiro ).
