The limits of the thing judged in criminal execution

Although it came to the legal world in 1984, that is to say, almost 20 years ago, the Law of Criminal Executions continues offering some curiosities to the operators of the Right, mainly in that it was within the limits of the res judicata.

The question to be analyzed meets more than one conviction, especially when the prisons are replaced by restrictive rights, under the terms of art. 44 of the Repressive Statute.

Judgment of the Court granting the discussed benesse

Judgment of the Court granting the discussed benesse

In fact, the question is: to what extent can the Court of Appeals alter first-degree decision or Judgment of the Court granting the discussed benesse?

Aiming to materialize some reflections, suppose that a certain citizen has committed a crime of embezzlement. Ordinarily instructed the process, a sentence was concluded concluding on the grounds of the punitive pretension of the State. The defendant was sentenced to three years’ imprisonment, in an open regime. Once the legal requirements have been fulfilled, the deprivation of liberty is replaced by two restrictive rights for the time of the conviction.

In the hypothesis contemplated, it is clear that if the obligations are not fulfilled, it is up to the Court of Executions to promote the respective conversion with support in § 4 of art. 44 of the CP, verbis: “The restrictive penalty of rights becomes a custodial sentence when there is an unjustified non-compliance with the restriction imposed. In calculating the sentence of deprivation of liberty to be executed shall be deducted the time served from the restriction of rights, respecting the minimum balance of thirty days of detention or imprisonment.

Going a little further to give a better example, let us imagine that this same citizen, still serving alternative punishment, is convicted of another crime, in a second trial, two years imprisonment, not applying the substitution taking into account, for example, recidivism .

So far, there is no news as it is provided in § 5 of the referred art. 44 of the Code of Criminal Procedure, that “on conviction of a deprivation of liberty, for another crime, the judge of criminal execution shall decide on the conversion, and may not apply it if it is possible for the convict to serve the previous sentence.” That is to say, in case of a subsequent conviction, the conversion or not of the restriction of rights in deprivation of liberty will depend on the initial regime established in the new conviction. If closed or semi-open, certainly there will be no room for legal favor. However, another will be the solution taking care of a regime exclusively opened by the fact that the Penal Law (§ 1 of article 36) authorize the re-educating to work or attend a course, outside the prison, during the day, remaining collected at night and days off. Now, if you can work and study, you can undoubtedly continue to serve the previous substitute sentence.

Therefore, if in the second conviction an open regime is established, the substitution of the deprivation of liberty granted in the previous conviction can be maintained compatible with the subsequent reprimand. This is not happening, it must be converted into prisons.

However, by making the matter a bit more complex, we will establish that the second conviction, for whatever reason (right or wrong) has also been replaced by community service and pecuniary services.

Summary for the practice of two crimes

Summary for the practice of two crimes

In summary, we now have two convictions, supported in two distinct cases, for the practice of two crimes, both replaced by restraints of rights with finality.

Since the accused is under an alternative penalty relevant to the first proceeding, the question is: how should the execution judge proceed to receive the second conviction?

According to a current case law, it is up to the judge to a) revoke the substitution of the sentences with support in arts. 66, III, “a” and 111 of Law 7210/84; b) to promote the sum of those deprived of liberty by the rule of physical competition (article 69 of the CP); c) apply the detraction for the time already fulfilled; d) to set the initial semi-open regime by reason of the sentence to be more than four years (or closed if more than eight, depending on the number of convictions replaced) and to issue an arrest warrant.

In spite of his (still not convinced) guidance, I have been supporting the understanding that “condemning the patient in various acts – having occurred in all of them, replacing the custodial sentence with restrictive rights – it is urgent to add the alternative sanctions imposed by the same period, thus dismissing the decision imposing compliance in a semi-open regime, under penalty of offense to the res judicata. “(HC nº 2002.04.01.048145-7 / SC, 8th Class of TRF of the 4th Region, unanimously, 10.02.2003, published in the DJU on February 19, 2003). Such intelligence was also adopted in another precedent of the same Collegiate, facing the same situation, whose Judgment was based on the following letters:

“HABEAS CORPUS. JUDGE OF EXECUTION. LAW No. 7,210 / 84. AGRAVO. SUSPENSIVE EFFECT. AUTONOMOUS CRIMES. SOMATÓRIO DAS PENAS. PRIVATE SANCTIONS OF FREEDOM REPLACED BY RIGHTS RESTRICTIVE. THING JUDGED. 1. The non-existence of suspensive effect to the appropriate appeal against the decisions rendered by the execution court, as provided in art. 197 of Law No. 7,210 / 84, does not exclude the possibility of using habeas corpus in order to prevent illegal constraint, provided that such occurrence is proven in plan. 2. Taking care of autonomous crimes, for which the defendant was prosecuted in the context of various criminal actions, the sum of the sentences must be added when they are executed, as would happen if the crimes were the subject of a single complaint, in practice, the rules of material tendering. 3. In respect to the res judicata, it is impracticable, in an enforceable way, to reverse the substitution of reprimands by restrictive rights determined in each autonomous process, in the cognition phase, on the grounds that the respective sum exceeded the quantum of 04 ) years. “(HC nº 2002.04.01.047779-0 / SC, Luiz Fernando Wowk Penteado, Judge on 12/16/2002, published in the DJU on 01/15/2003)

In the same vein, it is worth registering a unanimous decision in HC nº 2003.04.01.002560-2 / RS, Rapporteur Des. Volkmer de Castilho, on 10.03.2003 (DJU of 26.03.2003, pp. 807) and more recently, in the Criminal Injunction No 2002.72.00.012178-5 / SC, provided by the majority at the sitting of 11.06.2003, Rapporteur Des . Luiz Fernando Wowk Hairstyle. On both occasions, it was decided to move away from converting custodial sentences to deprivation of liberty, by repealing the arrest warrants issued.

Principle of legality

Principle of legality

At the moment, I believe that the Criminal Court must respect not only the principle of legality, but above all the dictates of the final judgment. The immutability of the res judicata prevents the situation of the defendant from being modified for the worse, showing that it is not possible to change the status libertatis of the individual without express legal authorization.

At the outset, it should be pointed out that in the issue raised here, there is no question of applying the criteria pertinent to the formal contest or continued crime, since the offenses were committed through two actions, under different circumstances. Thus, strictly speaking, the sum of sentences is correct by the rule of material competition.

Nevertheless, this sum must take into account the parameters dictated in each first-degree decision or in the judgments handed down – where the substitution of deprivation of liberty by restriction of rights has been fixed or maintained, the implicit or not) of being sufficient in the species, thus adapting itself to the degree of reprobability of the conduct as well as to the personal conditions of the sentenced person (Article 44 of the Repressive Statute).

Therefore, with due respect, I have to say that the magistrate responsible for the criminal proceedings is not empowered to deliberate in a different way, under penalty of facing the limits of the res judicata, hence the right to the replacement of prison sentences by restrictive sanctions was consolidated and integrated into the defendant’s legal assets, by a final judicial decision.

Moreover, as pointed out, the conversion of alternative sentences in prison the judgment of executions lies adstrita to any unjustified breach of any of the obligations imposed (Article 44, § 4, the PLC c / Art. 181 LEP) , or when it is incompatible with a new conviction, the deprivation of liberty for another crime (article 44, § 5, of the same Diploma). Absent any of these parameters, it is necessary to observe the final judicial act, in its exact terms.

The command inscribed in art. 111 of the LEP, invoked by the defenders of the application of the material contest taking into account the private penalties, does not grant legal protection to the abolition of the restrictive of rights set. See the content of the pointed device:

“When there is a conviction for more than one crime, in the same process or in different proceedings, the determination of the regime of compliance with the sentence shall be made by the result of the addition or unification of the sentences, observed, when appropriate, detraction or remission”

It should be noted that this rule is found in Chapter I of the Criminal Enforcement Act, that is to say, it deals specifically with “custodial sentences”, as well as included in Section II, “of the regimes”. The preceding article (article 110) provides that “the Judge, in the sentence, shall establish the regime in which the convicted person shall begin the sentence of deprivation of liberty, subject to the provisions of art. 33 and its paragraphs of the Penal Code “.

Therefore, the hypothesis envisaged in the aforementioned legal command refers only to the regression of the prison regime set to a more severe one resulting from the sum of custodial sentences. All the jurisprudence found on the subject is situated in that sense, that is, it debates the transposition of the regime open to the semi-open or from the closed to the closed.

It must therefore be concluded, at a minimum, that the extensive interpretation intended to be given to Article 111 of the Law on Executions to contemplate situations not provided for therein constitutes analogy in malam partem, which is not possible in our criminal-law system, and can not therefore , to be used in default of the defendant (in this sense, see ASSIS TOLEDO, in his book Basic Principles of Criminal Law, page 27).

Aside from this, this device does not deal with the restrictive sentences of rights, which are discussed in Chapter II of Law 7.210 / 84, and the possibilities of their conversion are exhaustively enumerated in art. 181 of the same Legal Diploma, verbis:

“Art. 181. The restrictive penalty of rights shall be converted into a custodial sentence in the hypotheses and in the form of art. 45 and its sections of the Penal Code (in its previous version). Paragraph 1 – The penalty of rendering services to the community will be converted when the convicted person: a) is not found because he / she is in an uncertain and unknown place, or disregards the subpoena by public notice; b) does not unjustifiably appear to the entity or program in which he is to render service; c) Unjustifiably refuse to provide the service that was imposed on him; d) to practice serious misconduct; e) to be sentenced for another crime to a custodial sentence, the execution of which has not been suspended. “

Contrary to what is stated above, the letter “e” does not authorize the conversion in the event of a further conviction also substituted by restrictive sentences, since this legal provision is intended only for cases in which the new sentence imposed exclusive prison sanction, that is to say, if for any reason the deprivation of liberty is suspended, there is no question of conversion.

Commenting on this rule, MIRABETE teaches that “conversion will also take place when the agent is convicted of another crime for deprivation of liberty whose execution has not been suspended (letter e). It is a logical consequence of the system, since, suffering a new sentence, now to the custodial sentence, having to comply with it because the sursis was not granted, the convicted person is prevented from providing services to the community. This sanction, therefore, should be converted into custodial, fulfilling the convicted cumulatively with the new sanction imposed. If, however, there is a possibility of complying with the previous substitution penalty, the court may refrain from promoting conversion (article 44, § 5, with the new wording). Thus, if there is a new conviction for a fine or a restriction of rights, or even a deprivation of liberty with the concession of the sursis, there will be no conversion “(CRIMINAL EXECUTION, Atlas, 10th edition, 716).

It is unassailable that the substitution of reprimand by restrictive sanctions precedes the hypothesis of sursis, proving more favorable to the accused – for the conditional suspension will only be granted “provided that the substitution provided for in art. 44 “(article 77, III, of the CP). It is therefore necessary to recognize that the best interpretation of point “e” of art. 181 of the LEP is that the provision of services to the community must necessarily be converted into deprivation of liberty only when a new conviction for imprisonment occurs without any substitution or suspension.

On the other hand, on the subject, it is worth noting that art. 45 of the CP in its former wording, read as follows: “The restriction of rights becomes a custodial sentence, by the time of the sentence applied, when: I – overdue, by another crime, the custodial sentence of the has been suspended; II – occurrence of unjustified non-compliance with the restriction imposed “.

As is seen, however timidly, the former mechanism also ensured conversion only in cases where “execution has not been suspended” for any reason or has the offender failed to comply with the obligation.

However, with the enactment of Law 9,714 / 98, these provisions were extended in accordance with art. 44, §§ 4 and 5 of the Repressive Statute.

According to CELSO DELMANTO, “with regard to item ‘e’ of art. 181 of the LEP, which provided for the conversion of the restrictive penalty of rights in the hypothesis of the sentenced to receive a new sentence of deprivation of liberty without sursis, was tacitly revoked by art. 44, § 5, of the CP (…) If a conviction comes to imprisonment for another crime, the judge will decide on the conversion, and may stop applying it if it is possible for the convicted to serve the previous sentence. Contrary to what happens with the sursis, in which there is a subsequent conviction for an intentional crime during the probationary period, its revocation is mandatory (article 81, I) in the case of a substitute penalty provided for in art. 43 and following their conversion into deprivation of liberty, in the same hypothesis, will only have an incidence as an extreme ratio, as expressly stated at the end of this paragraph 5 … “(CP, 5th ed., Rev. Ed.

In fact, the jurisprudence of the TRF of the 4th Region has already analyzed the applicability of paragraph 5 of art. 44 of the SC, in a similar situation, under the terms of the judgment:

“HABEAS CORPUS. UNIFYING PENALTIES. MATERIAL CONTEST. MAINTENANCE OF RIGHTS RESTRICTIVE. PROVISIONAL IMPLEMENTATION. Correct recognition of the material tender when unifying the sentences, even if the defendant is sentenced in different cases, with different sentences and replaced by penalties restrictive of rights established in the sentence. The sum of them does not necessarily lead to corporal punishment when the total exceeds the limit of four years. Interpretation of art. 44, § 5, CP. Order partially granted. “(HC nº 2002.04.01.057106-9 / RS, unanimous, Rel. Des. Volkmer de Castilho, July 10, 2003).

From the vote delivered by the eminent Rapporteur, let me transcribe the following excerpt:

“The Judge correctly considered that there was a material contest because the criminal conduct was perpetrated through different actions and results, but was mistaken in understanding not to substitute corporal punishment for restrictive rights. These, the restrictive penalties of rights, on the contrary, must be added together, since they have already been individually replaced, thus respecting the decisions rendered. In addition, paragraph 5 of art. 44 of the CP provides for the possibility of maintaining the restrictive penalty even if a new conviction is punishable by deprivation of liberty, when it is possible for the convicted person to comply with the restrictive sentences imposed. According to Júlio Fabbrini Mirabete in Criminal Code Interpreted: ‘The new Criminal Execution Law provides that restrictive sentences of rights will be converted into a custodial sentence when the defendant is further convicted of another crime for deprivation of liberty, the execution of which has not been suspended (article 181, § 1, ‘e’). The rule, however, has been attenuated, since it is permissible that, in the event of a new conviction, the judge may not apply the conversion if, notwithstanding the new conviction, in addition to the conditional suspension, it is possible for the convicted person to serve the sentence restriction of rights, since there is no incompatibility with the execution of the new reprimand imposed. It is no longer, therefore, an automatic conversion of a restrictive sentence of deprivation of liberty when a new conviction occurs … (…) Now, if the law expressly provides that even if a conviction is sentenced with corporal punishment, the restrictive penalty already imposed may be maintained , I see no reason not to maintain two restrictive penalties of rights when the Judge of conviction considered them more appropriate. This is the opinion of MPF (pages 270/2) based on the best interpretation of art. 44, § 5, of the CP, which I adopt … “

In any case, from any angle, this intelligence does not change. Regardless of the order of convictions (alternative / private or private / alternative), in some cases the alternatives must be maintained, in others not. By the way, it is interesting Judgment of the Court of Justice of the State of Rio Grande do Sul that well dimension the question:

PROCESSUAL CRIMINAL. Related searches CONVENTION SUPERVISION. CONVERSION OF RESTRICTIVE RIGHTS IN PRIVATIVE OF LIBERTY. IMPOSITION OF ART. 44, § 5, CP. Since the aggravating party is serving a custodial sentence (closed regime), it is impossible to provide services to the community, since it is incompatible with the simultaneous enforcement of sanctions. They unanimously approved the ministerial injunction to convert the substitution penalty for the provision of services to the community in custody. (Execution aggravation no. 70003761350, TJRS Special Criminal Chamber, Rapporteur Reinaldo José Rammé, on July 19, 2002)

Repeating: if the previous conviction is compatible with the new one (or vice versa) – that is to say, showing the simultaneous fulfillment of rights-restrictive sentences with deprivation of liberty – there is no room for conversion, let alone when two deprivation of liberty have been replaced by restraints of rights with finality for the prosecution.

In summary, in the case of this brief reflection, it is necessary to conclude that there is no legal basis for the revocation, by the Court of Execution, of the restrictive penalties established by a final judgment. As explained, the warlike conversion may only occur under the terms of art. 181 of the Criminal Execution Law, and it is not applicable to the case under discussion, art. 111 of the same Diploma.


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