Principle of non-culpability and the initial term to service the conviction sentence
The constitutional principle of non-culpability requires a final and un-appealable judgment of conviction to start the execution of the sentence.
Direct action for the declaration of constitutionality n. ยบ 43 107
110 Full Court, Justice Rapporteur Teori Zavascki, decided on February 17, 2016.
Federal Supreme Court of Brazil
Facts
This case refers to direct actions filed requesting the Court to declare constitutional Article 283 of the Code of Criminal Procedure108 and, therefore, that the Court prohibit the commencement of the execution of the prison sentence while appeals were still pending before the Federal Supreme Court and the Superior Court of Justice.
Holdings
The Supreme Court, by a majority, granted the declaratory claim and held con-
stitutional the Article 283 of the Code of Criminal Procedure according to the
opinion of the Justice Rapporteur Marco Aurรฉlio. Thus, no one shall have his or
her freedom suppressed until the final decision, pursuant to Article 5, item LVII,
of the Constitution, which provides: “no one shall be considered guilty before
the issuing of a final and unappealable sentence of conviction”.
The Court decided that the presumption of innocence does not prevent a person from being arrested at any stage, be it procedural or pre-procedural, provided the provisional detention requirements are met. However, the effects of the conviction can only start when the sentence becomes final. The requirement of res judicata means more protection against the restriction of someone ฬs liberty, since a higher court may overturn or mitigate the conviction.
The Justice Rapporteur highlighted that when the Congress enacted the chal-
lenged Article, it simply gave effectiveness, in the procedural field, of an explicit
guarantee of the constitutional charter of rights, adapting to the perspective
then established by the Supreme Court itself on case HC 84078109, when the
107 Joinly ruled with cases ADC 44 and ADC 54.
108 Art. 283. No one may be arrested except in flagrante delicto or by written and reasoned order
of the competent judicial authority, because of a provisional detention or a criminal conviction that has become final and unappealable.
109 Full Court, Justice Rapporteur Eros Grau, decided on February 5, 2009.
Court held that โimprisonment before the conviction becomes res judicata can
on be ordered as a provisional detentionโ. The rapporteur added that having
passed 7 years the Court issued a decision overruling the understanding that
was the basis for the alteration of the Code of Criminal Procedure. In other
words, the legislator had aligned itself with the Constitution, while STF had de-
parted from it (HC 126292110).
The presumption of innocence is a fundamental right, expressly provided for in
the Constitution, and does not allow courts to anticipate the formal res judicata.
In addition, the challenged provision reproduces an unamendable clause whose
essential core not even an amendment is authorized to restrict.
The Justice Rapporteur considered that there was no need to distinguish โinno-
cenceโ from โculpabilityโ. The execution of the sentence of conviction requires
the crime to be settled, that is, the certainty of the offense perpetrated. The
scope of the principle of non-culpability does not allow grades to form oneโs
culpability.
There were serious dysfunctionalities in the criminal procedural system, which led to the expiration of the time limitation and to the non-enforcement of prison-sentenced times. The judicial system needed indeed to be more efficient.
However, the Supreme Court should be incisive with a principle so important to the Democratic State of Law, instead of continuing to enable the free operation of a persecutory process by lower instances and dismissing itself from its fundamental role.
Additional Information
The interpretation of the scope of the principle of non-culpability established
under Article 5, item LVII, of the Federal Constitution111 has undergone different
stages since it came into force in 1988 as mentioned by the rapporteur on the
case above reported.
Initially, STFโs case law understood that the principle did not hinder someone to
start serving his or her sentence time after the conviction was affirmed on the
second instance, even if it was still pending trial on the special and extraordinary
appeals eventually filed, which do not operate as a supersedeas.111 Federal Constitution, Article 5: (…) LVII โ no one shall be considered guilty before the criminal
conviction becomes final and unappealable;
In 2009, the Court overruled this understanding (HC 84078112). It then consid-
ered that the presumption of non-culpability implied awaiting for all procedural
stages until the criminal conviction becomes final and unappealable. Thus, im-
prisonment before res judicata could be ordered as provisional detention. On
this reasoning, the Justice Rapporteur Eros Grau referred to the precedent RE
482006113, when the Full Court unanimously understood that a state constitu-
tional provision that imposed the reduction of salaries of public servants re-
moved from their duties for responding to criminal proceedings implied a fla-
grant violation of the provisions of item LVII of Article 5 of the Constitution. The
Justice then stressed that the โCourt that vigorously honors the provisions of the
constitutional precept in the name of guaranteeing the property should not
deny it when it comes to guaranteeing freedom, even because property has
more to do with elites; the threat to liberties effectively reaches the subaltern classesโ.
In 2016, on HC 126292114, the Supreme Court restated its previous understand-
ing and asserted that the provisory execution of a conviction, rendered or reaf-
firmed in a court of second degree of jurisdiction, even if subject to a special or
extraordinary appeal, did not compromise the principle of presumption of non-
culpability. Later on that same year, on November 10, 2016, the Court affirmed
that understanding of a case under the general repercussion doctrine (ARE
964246 RG115) and on the provisional measure rendered on the direct actions
of constitutionality 43 and 44 (ADC 43 MC116 and ADC 44 MC117).
The decision on the merits of these two direct actions did not affirm the provisional measure, as reported in this case brief.
Quote: โIt is urgent to reestablish legal certainty, to declare a simple rule, according to which, in Law, the means justify the end, but not the opposite. Better days require unrestricted compliance with the legal-normative order, especially the constitutional one. This is the price you pay for living in a Democratic State of Law “
Graphic data
Docket n.ยบ: ADC 43
Full Court, In-Person Deliberation, 6×5
Decision Date: 7 November 2019
Official Gazette: 12 November 2020
ODS: 16
Amicus Curiae-Justice Rapporteur Marco Aurรฉlio