AuthorMelvin Baez

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Lately we are seeing an aggressiveness Imprecious of ICE to arrest individuals. Many agents are presenting themselves with civilian clothes to homes, places of work, and even family and criminal courts to make arrests. Although most of those arrested do not have legal status there are a large number of those arrested who are Permanent Residents.

Generally, the people arrested are mostly people with previous deportations or with a criminal record – including things as small as DUIs (driving intoxicated). Others are simply young people from Central America that ICE is accusing of being a gang member just for using certain colors on their social networking pages. This has alarmed a large part of the community since some officers have made arrests in a very arbitrary manner.

It is important to be aware of your rights to be able to assert them. In a somewhat ironic way, there are individuals arrested by ICE who will qualify to submit an application that may result in their residency.

It is therefore that we present the most important points to keep in mind if you or your relative arrives to be arrested by immigration:

If immigration arrests you, say absolutely nothing without a lawyer.

Most of the time people panic and quickly find a group official arresting him who speaks Spanish. It is part of our psychology – to think that maybe a Hispanic officer will help us if we tell him everything. Be polite Be kind. Also, be smart. This officer is dedicated to arresting individuals and simply because he speaks Spanish does not mean that he is going to let him out or he will give him bail. They use any information that you give against them. If you are given a document to sign, do not sign it and say that you prefer that your lawyer be present to explain that you say that paper.

Do not answer any questions about your identity or nationality to someone you do not know.

Many agents are using “traps” such as “IRS calls” or “college counselors” to get valuable information about their identity, their address, and their legal status. When a person is detained by immigration (ICE), it is their duty to prove (called in English as Burden of Proof ) that you are who they claim to be and that you are not an American citizen. The first thing many people do is to give the government all this information without them having a document about it.

Do not let any officer enter your house without an order signed by a judge. Most of the time ICE does not get a judge’s search documents. They only print a paper without any legal power that has pictures of an individual ( and most of the time it is not of anyone who lives there) and they use it as an excuse to enter inside a house. While they were in the house, they arrested everyone they saw there. The law treats homes as a holy place in which individuals have a great deal of right to protect. Do not open up to anyone and if they touch do not panic, assert your rights and ask them to pass the paper underneath. If it is not a judge’s order, explain that you are asserting your right not to open without a valid order. If you rent a room, be sure to lock it and tell your landlord that you do not give permission for someone to enter your room.

People detained by ICE have the right to request bail.

The ICE protocol is to arrest certain individuals and give them a subpoena called ” Notice to Appear” denoted as NTA, which is a Notification to Appear in court in front of a judge. They also have the right to give you an ” issue a bond ” bond so your family can pay it and you can continue to fight your case by being free.

You have the right to ask an immigration judge to bail you if ICE Denies You the Bond

ICE has the power to bail you even after you stop it and send it to court. Unfortunately, they do not do it in most arrests. This is where you can ask the judge to “re-determine” if you qualify for bail. If you have a lawyer, a motion can be submitted to the court for you to have your bail hearing.

Not all detained individuals have the same hearing in front of a judge.

There are detained individuals who, as a consequence of what is in their criminal history, do not qualify for bail. There are times when the record of your criminal history (or the punishment given) is incorrect. There are occasions when immigration alleges that conviction is a crime of moral turmoil and it is not so. For this, the detainee can request that the judge give him a special hearing called Joseph Hearing. This hearing is for the Judge to determine if you truly do not qualify for bail (in legal terms, to see if you are truly subject to the INA 236 (C) immigration law that prohibits bail to certain individuals.)

In a bail hearing, the judges ask that the detained person prove that (1) it is not a risk to society and (2) he is not at risk of fleeing and not presenting himself to court.

These factors are essential and at the letter of the law. If you have more than 1 IUD or have been convicted of a crime considered “moral turpitude,” or in more easily understood words, an intentional crime, the prosecutor will use this to try to convince the judge not to bail him. Remember that there are certain crimes that disqualify an individual from being considered on bail. Here is the importance of having an immigration lawyer who can (1) very carefully inspect your criminal history (2) see if there is an error (3) check the criminal code of conviction with acts that require a conviction. Example: There is a big difference between an intentional assault and a reckless assault. A person with an intentional assault conviction does not qualify for bail if a jail sentence of more than 6 months is given while a person with a reckless assault conviction generally does qualify (based on this New York criminal law). Again, this is where it is very important to have a lawyer who can see these documents and can advise you of your rights and your possibilities of being able to request bail.

The detainee’s family must be very dedicated in working with their immigration lawyer to provide documentation that the judge will consider in the bond decision.

This point is one of the most important to be able to leave on bail. The law indicates that it is the detainee’s duty to prove that he deserves to be released on bail. While in detention you can not do that without the support of a loved one outside of detention. This person (or persons) must work with your attorney to collect evidence of (1) all your family ties in the country as a family (citizens or legal residents) through birth certificates, marriage certificates (2) proof that you he is a person of good moral character as a letter from his church, testimonies from people who know him, proof of his work, letter from his employer stating that his work will continue to be available after leaving; letters from people you have helped in some way, and any other evidence that you see relevant (for example:

The decision of the Judge may be appealed by the arrested person and also by the prosecutor :

If the Judge denies you a bond you can appeal. You have the right to appeal to the Migration Appeals Bar (in English, called BIA – Board of Immigration Appeals). On the other hand, if the Judge gives you bail the prosecutor can also appeal.

It is very important to have all the bail money available preferably before you set up your bail hearing.

The bonds are returned to the person who paid the money after the case is over. Most bonds in New York are an average of $ 10,000 (may be more or less than this). Even if the judge grants bail the prosecutor can appeal the bail. If the appeal is submitted within 24 hours and if your family has not yet paid the bail, you risk being put in detention.

If you are released on bail, your case will most likely be transferred from court and judge dealing with cases of non-detained individuals.

Normally all arrested cases are heard by a judge appointed to only cases of the person in detention. After leaving on bail your case can be transferred to another office. Even so, you have to attend all of your audiences. If you do not leave, the judge who will hear your bail case will also hear your deportation case. Cases of detainees are considered “priority.” Judges with detained cases usually give their hearings within 1-2 months of separation. This is very different from the cases of people in freedom where the hearings are usually 6 months later and up to 2 years later for the final (individual) hearing. It is important to leave on bail to have more time to prepare your case but if the judge denies the bail, make sure your family struggles to get all the evidence of your case as soon as possible.

Whatever your situation, do not give up. Be sure to look for all of your legal options before asking for an exit or deportation order.

For more questions about bail bonds or specialized consultation, please contact us by clicking here.

Performance of the activity of judicial police corregedoria



The corrective activity, as is known to those who work in this area, has aroused countless and heated debates in the country’s Forums and Courts, which is often due to the confusion between the typical and atypical function of the Judiciary Branch, which becomes patent in a large number of questions about the subject, as we will seek to present in this work, with emphasis on corrective police activity, even more because it would not be careful to exercise typical activity of the Judiciary, that is, jurisdictional.

In relation to this, a question that, often in forensic practice, is apt to generate confusion, would be that is to say, to establish limits between the typical fields of two radically different bodies, which would be the Civil Police Corregidor and the Judicial Police Corregiment (incidentally, the very advent of the norm contained in Article 144 and its members of the Political Charter already affirms in the meaning that the police preventive – security and judicial, will be auxiliary organs of the Judiciary, but are not hierarchically subordinate to it, but rather, to the Governor of the State – that is, holder of a popular mandate for the exercise of activity of the Administration Public).

One of them, the latter, exercised by the Judiciary and another exercised by a proper body of the Civil Police, in which the police officer is attached (he does not take care of competing bodies, but each with its own distinct sphere of attribution), without prejudice to other civil or criminal measures to be initiated in their own ways, as the case may be.

In fact, it is not denied that the genesis of the confusion in the tessle may be related, precisely, to the fact that, in the case of the Judiciary, the exercise of an atypical function is taken care of, then, as it is, in a Democratic State of Right, the foundation of legitimacy the Judiciary would exercise the exercise of a power (therefore act of state sovereignty) linked to the activity of saying right ( júris dicere, meaning literal in relation to the exercise of jurisdiction), in an impartial manner.

police agencies

police agencies

The exercise of a supervisory function was not an activity of its own, but on the contrary an atypical function deriving from the law, since, as is well known, such a function would be closer to the Executive Branch to which the police agencies are linked, but with it, by no means becoming confused.

So much so that there is no doubt as to the fact that the Judicial Police, regardless of the name is an agency of the Executive Power, behold the name itself indicates, police would derive from the Greek police, in allusion to the polis, or City-State Greek.

That is to say, in this sense, what is observed would be a situation in which the activity in question would be eminently administrative, remote derivation of the police power in the general public administration, being certain that historically the name derived to the own organ that maintains the order public.

With regard to the generic character of the expression, to ask for a way to ponder the ever present conception of José Cretella Júnior, which points out:

In general, police is the generic term for the organized force that protects society, freeing it from all disquieting visions…. During the Middle Ages the meaning of the word changed, having been used to designate civil society under the authority of the State, as opposed to the good moral and religious order of the exclusive competence of ecclesiastical authority. Later, in France and Germany, the police and the Polizei came to designate the right of the sovereign and the feudal lord to watch over, in every possible way, for the welfare of those under his orders.

On the subject, with specific delimitation, it is important the distinction punctuated by Fernando da Costa Tourinho Filho, in the sense that:

In Rome, the term politia has acquired a special meaning, meaning government action in the sense of “maintaining public order, tranquility and internal peace”; later, it went on to indicate “the state body itself responsible for ensuring the safety of citizens”.

The author continues to separate the activities of police action in the current context, in the legal order of the country, pointing out:

But while the Security Police is trying to prevent the disturbance of public order by adopting preventive measures, a true prophylaxis of crime, the Civil Police intervenes when the facts that the Security Police did not even imagine could happen. Until then, the Police in charge of this task was denominated Police Judiciary. However, the Federal Constitution, in art. 144, par. 4, provides that “the civilian police, directed by career police chiefs, incumbent, except for the competence of the Union, the functions of the Judicial Police and the investigation of criminal offenses, other than military.” The primary function of the Civil Police is to determine the criminal offenses and their authorship.

In this sense, it is worth noting the assertion made by Álvaro Lazzarini:

The Judicial Police corresponds to the police activity developed after the outbreak of the criminal offense, with the purpose of assisting the Criminal Justice in its final activity, which is the application of criminal law. The Judicial Police activity is focused on the accomplishment of the criminal procedural scope although it is of a clear administrative and non-jurisdictional nature, being controlled externally by the judicial authority and directed to provide the latter with a first investigation and examination material.

However, as it turns out from the above mentioned lines, the performance of such a corrective power seems to be linked to an idea of ​​supervision of the auxiliary services of the Judiciary, in the exercise of its typical function, that is, in the jurisdictional action, which would lead to the idea that the inspection would find limits in the procedural activity, since, on the contrary, it would lead to the conclusion that there is no need for a Civil Police Corregiment.

With propriety, the Saraiva Encyclopedia of Law, in its own words, gives the master lines of such differentiation, and it is appropriate to ask for the following transcription:

CORRECTION In the judicial sphere is the supervisory activity exercised by magistrates on all auxiliary services, the Judicial Police and prisons, which includes the competence to apply disciplinary penalties to the servants, clerks, faithful, porters and law enforcement officers. In the public administration means inspection, through visits, inspections, examinations of documents, to several or certain bodies to verify the efficiency and smoothness of the services.

Likewise, in the same sense, it should be pointed out that De Plácido e Silva asserts that acts of judicial correction apply to procedural acts:

And, in performing such duties, the corregidor or any other body to which corrections may be made may even refer to errors, abuses, disrespect and tumultuous inversions of acts and the legal form of the proceedings, ex officio, or in virtue of complaints, providing on these cases, what is of Law and its competence.

On the subject, reinforcing this idea of ​​different fields of action, including, punctually, with propriety, Judge Octavio Augusto Machado de Barros Filho, for whom:

In the formal aspect, the duties of the permanent corregedorias consist in the supervision, administration and orientation of the organs of the justice on their auxiliary services, disciplined by norms of service, like provision, resolutions, ordinances and communications, being exercised within the legal limits of their respective jurisdictions, depending on the cumulative or specialized nature of the Varas for which such competence is attributed. At the same time, given the dynamics of police activities and prisons, the magistrate also acts as a provider, ex officio or by provocation, correcting and reordering services through normative acts, with a view to the correct and efficient administration of justice; since the Judiciary is ultimately a service provider. It is not excessive to point out that the corrective functions fall only on the services and employees subordinated directly to the monocratic judgment; since, under the terms of Article 129, para. 2, items I, III, IV and VII, CF, find themselves “revoked all devices seen as the so-called performance of legitimizing Magistrate of Judicial Police”, as warns John Estevam da Silva, Promoter of Justice in Sao Paulo. The supervision of the acts practiced by agents of the Military Police and the Civil Police is incumbent upon the authorities under which they are subordinated hierarchically and their respective Corregedorias, except for the external control in charge of the Public Ministry. In this sense, the lesson of Prof. Hélio Tornaghi: “while the rules regarding the Administrative Police are Administrative Law, those that refer to the Judicial Police are procedural law,” therefore, “if the Judicial Police organically interconnects the administrative machinery of the State, functionally it is linked to the apparatus the judiciary. There is no hierarchical, disciplinary subordination between the Judicial Police and the Judiciary or even the Public Prosecution, but functional interdependence. Only in this sense is the auxiliary police of justice.

Therefore, in the administrative sphere, any infractions imputed to certain police officers must be determined, in the administrative sphere, by their own organs (in the case of civil police, the Civil Police Corregedorias) and not by the Judiciary, which, however, if they encounter denunciations regarding such infractions, they can not remain inert, and must communicate the proper organs to the appropriate measures.

That is, before a complaint, after the caution of reducing it to term, should the Judge with attribution of Judicial Police Corregiment, to determine the sending of a copy to the Civil Police Department, without prejudice, in case there are indications of a crime criminal investigation of an unconditional public initiative, to determine the scientifica- tion of the dominus litis poenalis, that is, the ministerial representative, in order to initiate the measures he deems appropriate in relation to both (although, in the last resort, by analogical extension of the advent of rule contained in article 40 of the Code of Criminal Procedure).

That is because, under conditions such as this, by the obvious, it would take care of a situation of incidence of the principle of the officiality of the criminal action, to demand, therefore, such measures of official impulse.

Similarly, one could not deny cuddle up in these cases unequivocally situation possibility of action of external control over police activities under Lomp (Complementary Law No. 75/93), as can be extracted from the advent of their provisions of articles 7 and 9.

Fernando Capez points out that:

Public authorities responsible for prosecution must act ex officio, without the need for provocation or the assent of another. The slowdown is given, again, the cases of prosecution of private (CPP, art. 5 o, par. 5 o) and conditioned public prosecution. The rule does not prevent the provocation of public bodies by any of the people according to the Code of Criminal Procedure, art. 27.

Such a situation would not create a situation of impediment or suspicion of the Magistrate who had the initiative of communicating the aforementioned organs for the prosecution of any criminal action (which may eventually be distributed to him), as already pointed out by the E. Court of Justice of the State of São Paulo, on more than one occasion (on the contrary, in taking precautions such as this, it is noted that the Magistrate is taking precautions in the interest, precisely, of preserving his impartiality, as a political foundation for the existence of a Judiciary Branch in the Democratic State of Law).

In this sense, one would ask bowed to highlight how much decided, in this regard, on Suspicion Exception No 75716-0 / 1-00, Espírito Santo do Pinhal, Rel. Des. Álvaro Lazzarini, j. 15.02.01, the text of which is as follows:

Exception of Suspicion. Determination of extraction of copies of testimony from witnesses and referral to the Public Prosecution Service. Subsequent conduction by the Magistrate of proceedings instituted by reason of the action taken. Different processes. Hypothesis that does not fit in the forecast of the subsections of art. 254 of the CPP. Exception rejected.


Thus, it would not be possible to confuse the fields of action of the judiciary police corregedoria and civil police corregedoria, since the first one would not lend itself, as a matter of fact, to investigating functional infractions of the policemen, but, on the contrary, such deviations may jeopardize the smoothness of judicial acts (which, it is emphasized, does not prevent that, in the event of any responsible communication of violation of functional duties, the spheres with attribution are communicated).

In this sense, even has already decided the E. Court of Justice of the State of São Paulo, in precedent I ask you to highlight:

Police – Permanent Corregedor – Ampla defense – Competence – In the investigative procedure that is not intended to accuse and punish is not necessary the contradictory and ample defense – The civil police is auxiliary of the justice when it carries out the arrest in flagrante, act of Police Judiciary and of determination of criminal infractions, subjecting itself in the exercise of this function to the control of the permanent judge by virtue of art. 77 of the State Constitution – Order denied. (Injunction No 384462-5 / 8 – São Paulo – 8 to Public Law Chamber – Rapporteur: Teresa Ramos Marques – 15:12:04 – VU).

Thus, for example, the supervision of the activity of the Judicial Police, by the respective corregedoria (ie, not by the Civil Police corregedoria), in the activity of granting search warrants and seizure, would remain patent, which would not be the case with respect to an accusation of concussion, which should not be directly determined by the court judge, who should forward the fact to the Civil Police Corregiment and, in that case, because the offense could also be criminalized, (in this case, nothing would prevent the direct request for the initiation of a police inquiry to the police authority with such attribution, say en passant ).

Regarding the issue in question, that is, granting of search warrants, as a form of action by the judiciary police corregidor, there would also be controversy regarding the possibility or not of granting them to Military Police agents, not being unaware that care should be taken of a peculiar providence, to be examined with some caution, especially since the domicile is usually (not without exceptions) held as inviolable by the constitutional text.

In this sense, it is worth emphasizing the opinion of Edson Mongenot Bonfim, for whom:

The doctrine considers the role of art. 240, par. 1, because the search is emergency measure that achieves fundamental guarantee of the individual. The Federal Constitution establishes that the house is the inviolable asylum of the individual, and no one can penetrate it without the consent of the resident, except in case of flagrante delicto or disaster or to provide relief, or even during the day by judicial determination (art. 5 a, XI). This article has art. 245, caput, of the Code of Criminal Procedure that the home searches will only be executed during the day, unless the resident himself allows them to be performed during the night. Part of the doctrine also identifies the possibility that, in the specific case of the flagrante delicto, the search and seizure can be effected even at night, since the Federal Constitution itself exonerates such situation.

But even so, it has been that the request for search and seizure can be made at any stage of the process, including before the police investigation (in this sense the opinion of Fernando da Costa Tourinho Filho, as it is also verified in jurisprudence, in so far as it is purely exemplary, as stated in the classic interpretation set out in RT 665/333), taking care, moreover, of a measure expressly provided for by the advent of the rule contained in Article 240 and its members of the Code of Criminal Procedure.

In these conditions, there being justified reasons, reported by a military police officer, in the sense of the occurrence of offenses punishable by criminal action of unconditional public initiative, therefore, in a situation of possibility of incidence of the mentioned principle of the officiality of the criminal action, there would be possibility of deferment of warrants search and seizure (insist is taken the precautions envisaged by the advent of the rule contained in Article 240 and their consectários the Criminal procedure Code, notably in its § 1, letter “d”), although signed the election by agent of the Military Police, in spite of the fact that there are some misconceptions to the contrary (there are no real institutional clashes in relation to them, mainly motivated by associations of Police Delegates, or even members of the police career, but it is not forgotten that takes care of an issue that can be influenced by ideological, even political, factors of the quest the raised).

First of all, it should be stated that the possibility of being the request made by the Military Police has long been authorized by the Superior Court of Justice, :

Judicial order. Alerted by notitia criminis from a military police body, the search and seizure of the respective judicial order by the same body is not tarnished by the same body, especially since it followed the regular investigation by the Civil Police, to which the seized goods were delivered. RSTJ 27/101

And it is not observed that such an understanding has been altered by subsequent judgments, and it must be regarded as effective, under such conditions, as it is obligatory, in spite of the fact that there is no agreement to the contrary.

In order to corroborate this understanding, it could also be pointed out that Articles 13h and 176 of the Code of Military Criminal Procedure would allow the Military Police to conduct searches in the Military Police inquiries and that, although if it is a matter of military law, can be applied subsidiary to the question, reinforcing the understanding crystallized in the aforementioned Judge, since, if there is a law authorizing the Military Police to conduct searches, there is nothing to prevent, in the absence of a normative prohibition, the analog judgment (Article 4 of the Introductory Act to the Civil Code), in the pursuit of the common good and social purposes for which the law is intended (Article 5 of the same law).

Nor should it be claimed that the rule contained in Article 144 and its members of the Constitution, would lead to illegality of a claim or deferment of the warrant in question to an agent of the Military Police.

This happens in that paragraph 4 of the mentioned constitutional consectário states that the Civil Police vested the judicial police functions and investigation of criminal offenses, nothing more. In the same sense, the content of the norm contained in article 140 of the Constitution of the State of São Paulo.

However, the measure of search and seizure can not be conceived as the exclusive function of the Judicial Police, since Article 242 of the Code of Criminal Procedure establishes that the search and seizure may be determined ex officio or at the request of either party.

There is no rule establishing the exclusivity of the Civil Police for the search and seizure, nor fixing such a diligence as an act of Judicial Police (this without mentioning exceptional hypotheses such as the procedure of crimes against immaterial property, among others, that prove the lack of the exclusive character that was mentioned).

With precision, in fact, on the subject, the positioning of Alvaro Lazzarini, for whom:

But it is true that the responsible body of the preventive police – on the constitutional order, the commission on municipal state level is the Military Police (Article 114, par 5, of the Constitution..) – necessarily and automatically, before the a criminal offense that he can not avoid, must proceed to immediate repression, taking all the measures listed in the procedural order for the criminal type that, at least in theory, has occurred. Remember that immediate repression can be carried out by the military police officer, without breach of the constitutional provision, because those who are responsible for preserving public order have a duty to restore it when they violate it.

Under these conditions, the Security Police could also carry out activities of a procedural nature, in order to restore public order, which would not prevent the Military Police from obtaining judicial orders, without any violation of the constitutional text, as already defined by the Superior Court of Justice.

From that consideration, of course, there would be allegations that it would take care of measures that violate legality, or that the suit or its concession would consist of acts of impropriety or usurpation of public function.

On the contrary, as a beggar, it would take care of guidance that would best meet the principle of efficiency, expressly foreseen by the advent of the norm contained in article 37, caput, of the Constitution.

This is because the society does not care about the institutional debate between the Civil Police and the Military Police regarding the limits of their functions, and that what is sought is the maintenance of public order in an efficient way, which would be better achieved with the collaboration of these organs, for reasons of singular Franciscan truism.

The understanding in the sense that the two bodies would have attribution to such lawsuits is shown to be more apt to meet the social ends to which the law is intended and to the demands of the common good (and again invokes, in as established in the advent of the rule in Article 5 of the Introductory Act to the Civil Code), behold, thus, the very possibility of police corruption would become more difficult (for example, of no use to bribe an investigator or delegate, if the entire military police body can adopt measures aimed at restoring public order).

Thus, despite up can be learned understandings to the contrary, if on one hand the Political Letter assures sobreprincípio freedom, in its Article 5, caput, likewise ensures the same normative consectário a right of collective nature, which is, security, which must be weighed against a perspective of proportionality, especially in this matter brought to cognition.

Similarly, in communities of small population size common in the interior of the country, the monopoly of prerogative on the exclusive figure of the police authority could be deleterious if there had been news of the commission of any crime by the holder of this charge.

It is true that in such situations it might be suggested that another delegate should be urged to investigate, but, as stated above, corporate reasons do not seem to indicate that this is the best option (not because of the lack of exemption from the debtor, but also for the preservation of the image of exemption, in accordance with the principle of morality laid down in Article 37, Lex Mater ), and it is therefore appropriate that another body should intervene, with greater advantage, therefore, in the public interest, which, as also seen elsewhere, would be oriented towards the attainment of public order and peace.

The discussion, moreover, seems to be of a certain Byzantinism, since, of course, in taking care of the measure of interest of the dominus litis poenalis, the ministerial representative will be given beforehand, being certain that the Judge Corregidor also takes unequivocally science of the measure, so that, under these conditions, nothing would prevent the judge or the prosecutor, from then on, determining or requesting determination, the diligence of search and seizure in question.

That is, it would be enough for the Military Police agent to urge the Corregedor Judge to order the ex-officio (principles of officiality and of the legality of the criminal action – the last one outlined above) to determine the measure, under the regency legislation ( as it will be explained later if the Judge is to launch, he must act as Judge of Law and not as Corregedor, which presupposes prior distribution, if he is not on duty or outside the distribution times in the Forum, in the terms recommended by the NSCGJ for example), the same being given, mutatis mutandis, in relation to the learned representative of the parquet to whom the request is given.

Equally, above all the above mentioned lines, when it was clarified that the correctional activity would be atypical, inasmuch as it would imply in inspection activity proper to the Executive Power and not to the Judiciary Power, one could not fail to record that when the measure leads to the provision of a provision, a measure specific to the exercise of the jury dicere, or power to say the right, typically a judicial activity, no longer have to consider the activity of Judicial Police Corregiment.

Often the measure may prove to be extra-criminal in nature, that is to say, to be pleaded in another court, for example, in a civil court, therefore, not being subject to analysis even before the Judicial Police Corregiment (totally outside the scope of expected performance for the incidence of atypical activity highlighted above).

Regarding this aspect of this approach, it is quite pertinent the understanding of the E. Court of Justice of the State of São Paulo, in the sense that:

COMPETENCE – Request for breach of bank secrecy and civil police prosecution – Request made to the Corregidor of the Judiciary Police – Inadmissibility – Hypothesis of true precautionary measure – Pretension to be deduced from the Civil Court – Appeal not provided. (Appeal in Strict Sense n 227488-3 – Santos – 6 the Criminal Chamber – Rapporteur:. Fanganiello Maierovitch – 30/10/97 – VU).

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.

The Pyramid of Urban Crime

Criminology has modernized itself as an empirical social science and has moved away – definitively, I believe – from the criminal preponderance of its studies (without, however, losing its criminal vision), in favor of sociological approaches, especially at the community level; axiological, with emphasis on the contrast between the ethical values ​​proclaimed and those actually practiced by society; and victimization.


This fact tends to generate a Criminal Policy

This fact tends to generate a Criminal Policy

Not only fulfills the role of bridge between the conclusions of Criminology and Criminal Law, but also serves as a filter in this transition so as to be either for prevention or for facilitating the alternative solution of conflicts, secondly, avoiding its banalization and preserving it for cases in which the State should actually apply retributive justice.

The new Criminology is not primarily concerned with crime and the criminal, but with all socially relevant crimes and their causes; with society, which, in large measure, produces them; with the victims; and with the formal or informal social control that prevails. Consequently, it induces this same scope – that with PONe the concept of criminality – in the diagnosis of the reality of public security.

It is necessary to have such a conception in mind, so as not to err in opinion, advise or decide on solutions concerning problems of urban violence, the dangerous nature of crime, and the generalization of it. As we will see, this reality is indivisible, because it is composed of factors that integrate and interact, creating synergy and dynamics of crime in each city or metropolitan region.

However, the actions of confronting the criminological factors and of the crime itself must necessarily be specific and fill a wide range of integrated social and criminal policies, conformed by the same criminological matrix that considers preventions (primary, secondary, tertiary and victimization) and repression, in the light of the peculiarities of the communities.

There is much talk about organized crime, often showing incomplete or distorted understanding of the phenomenon and its surroundings, manifestations and consequences in the urban crime pyramid, whose apex is occupied by the chiefs and the staffs of managers, counselors, and washers Of money.

There are people who need to vitally maintain a facade of legality to give permanence to the criminal organization and thus enhance the ability to obtain illegal power and money. West, part has to be “washed” to reinforce the “legal” face of the organization; the other part, dirty, descends to where many know to be the maximum hierarchy of organized crime, the intermediate level of the pyramid gangs or flocks, which do not wash money, because they do not need legal disguises.

With the money back guarantee for the top, multiplied a few times, this money serves to finance, for example, the wholesale drug merchant, which then goes down a little more to the big retail.

The confrontation of crime at these two levels must have two marks: permanent and persistent work of intelligence; and relentless repression. Against the top of organized crime, financial intelligence must prevail, in a joint activity of the Financial Activities Control Council – COAF, the Federal Revenue Service, the Central Bank, the Federal Police, the Brazilian Intelligence Agency – ABIN and the Federal Public Prosecutor’s Office and state.

There are recent agreements between these bodies, which tend to boost the fight against money laundering, the nutrient of organized crime. Against the intermediate level of the pyramid, police intelligence and repression are the guarantors of effectiveness.

The understanding of the reality of these two segments of crime will not be complete without the perception of the role of corruption for its continuity in time and functioning. Corruption aimed at fraud in sectors of the financial system, for the “legalization” of illegal assets; corruption to co-opt state agents, guaranteeing facilities and impunity.

Therefore, parallel investigations must be carried out by independent police magistrates, the Public Prosecutor’s Office, the Central Bank, the Controlling Offices, the Ethics Commissions, and finally by all bodies with the attribution of any external control over institutions or persons against whom there are indications of impropriety.


As for crime prevention at the top and middle of the pyramid

As for crime prevention at the top and middle of the pyramid

Unfortunately, it is only possible to reason with the secondary, deterrent, through the efficacious effectiveness of repression and criminal justice.

At the bottom of the pyramid of urban crime are children and adolescents immersed in an essentially criminogenic culture, composed of factors that induce violence that are not opposed by the formal and informal instances of social control and even encouraged by the absence of some of them.

Some are listed, varying their criminogenic importance according to the circumstances of each community: family disaggregation difficulty accessing State services (health, education, basic sanitation, justice, security, domotic violence, violence at school, drug use; lack of areas and leisure and sports activities, unemployment, cultural development difficulties, lack of assistance and solidarity to victims of violence, precarious conditions of preparation for social reintegration of the victims and adolescents in conflict with the law, sexual exploitation of In the country, thousands of young people succumb to the call of the crime according to a difficult process to define if of synthesizing these factors in a single, the devaluation of life (the own and of the others) or of atomization of this, generating the numerous inducers of violence, combined with the narrow margin of tolerance the frustrations of the expectations of consumerism and hedonism, elevated to the status of cultural values ​​by society and the media.


Everything stimulated by the lucrative profitability of crime

Everything stimulated by the lucrative profitability of crime

Following the example of drug trafficking – made possible by top-down vertical injection of illegal money into the criminality pyramid (thefts and robberies practiced by, irony, free-lancers, painting). Queuing for employment as “soldiers” of stride, thousands more.

This is due to failures in social control by the aforementioned informal bodies (family, school, religions, profession, culture, customs, neighborhood, third sector, media, public opinion, etc.) and formal ones (police, prosecutors, financial, etc.). This being a part of the etiology of crime, tackling the problem has to rebuild social control point by point.

With regard to the universe of young people at risk of entering crime, let us return to the first paragraph of this text and we will soon see that the new paradigm values ​​the strengthening of informal institutions and the communitarization of formal ones, under the focus of primary prevention, prevention of the first detours to violence and delinquency.


This approach represents a breach of previous prevention practices

This approach represents a breach of previous prevention practices

Which made the deterrence of potential offenders only effective in criminal and police-repressive policies. The failure of this vision, as evidenced by the unacceptably high crime rates, has led to a change in direction towards social management in public security, which has been implemented by the Federal Government since March 2001 in metropolitan areas that today seven.

The methodology of this Plan for the Prevention of Urban Violence is based on the following basic ideas:

1) selection of fifty programs of the Multi-Year Investment Plan (Avança Brasil) related directly or indirectly to inducers of violence, distributed by thirteen ministries;

2) identification of the areas of greatest incidence and production of violence and crime in the municipalities of metropolitan regions;

3) definition, with the community leaders, of the main necessities and necessities of inducers of violence;

4) establishment of projects to respond effectively to these needs and needs, structured on the integration of selected programs among those fifty;

5) articulation of these federal projects with their state, municipal and third sector correspondents, avoiding overlaps;

6) stimulated the adhesion of the private initiative in support of the projects;

7) mobilization of people from communities for participation, through local leadership;

8) leadership training for the implementation and execution of projects;

9) deployment;

10) monitoring, evaluation of implementation and, if necessary, course correction.

The synthesis of these ideas is to integrate social programs to optimize their results, giving young people a focus on their community environment, in order to confront local violence inducers.


Women’s Criminology – Emotion and passion in women’s crimes

And in the long chapter of women, Lord, have mercy on women. Have mercy on them, Lord, that within them life hurts deeper and more fruitful. And sex is in them, and the world is in them, and madness resides in this world.

Woman and criminality.

Woman and criminality.

The theme, although not new, involves and falls in love with the thinker of the Law.

The research already done recognizes the lower incidence of crimes committed by women and some of the explanations for this phenomenon can be found in the family unit and in the environment in which we live and which provides us with the models of conduct, in what is denominated, specifically within the scope of this work, as culture.

For the attribution of gender, the birth is a crucial moment. The role of gender can not be understood, according to Robert Stöller, without giving due credit to the moment of attribution, which, in turn, sets in motion an entire process of acculturation that teaches the girl to be female and who, as a woman, must think, feel and act in the family and in the segment of society in which the family represents and acts.

From birth, at the time of sex signaling, the labeling that doctors and family perform of the newborn becomes the first criterion of identification of a subject. From this moment on, the entire family of the child will position itself in respect to this data and will be emitting a cultural discourse that will reflect the stereotypes that men and women will sustain for the adequate creation of that identified body.

The set of expectations about appropriate social behaviors for people with a particular sex sanctions as pertinent to the female gender – that is, as positive characteristics – a series of behaviors that, at the same time, have a low social self-esteem (fear, passivity, dependency). These stereotypes are so deeply ingrained that they are considered as the expression of the biological foundations of the genre.

Lacan asserts that the structures of behavior and representation go beyond the limits of consciousness and the weight of conventions ends up imprisoning the woman within the limits of what is “permissible.” However, women, like men, practice homicide, robbery, and narcotics trafficking, in order to remain only the most common crimes. The motives which lead her to such crimes do not differ greatly from those which compel the man to commit them. But when a woman practices abortion in herself, when she consents to the death of the fruit of her gut, when she abandons the newborn child, what is the motive that guides her conduct?

female criminology

female criminology

To dissociate female criminology from the cultural construction imposed on both sexes would restrict this work to the periphery of the question we are about to face, namely, the dichotomy between masculine and feminine, between cultural discourse and legal discourse, between oppressor and oppressed. Analyzing these aspects, we will see the correction of Alessandro Baratta’s assertion that the feminine question has become a privileged component of the criminal issue.

It is not possible to separate women’s own crimes from the paradox of the existence of subtle violence, Bourdieu points out, mild violence, insensitive, invisible to their own victims, which is essentially exercised by the purely symbolic means of communication or knowledge, or, more precisely, of ignorance, of recognition or, ultimately, of feeling.

The latent duality in these crimes is that in them the woman is, at the same time, the perpetrator and victim of the crime. Author, because it performs the typical, illicit and guilty conduct provided for in criminal law. Victim, because the State fails to comply with it with one of its primary attributions: that of guarantor of rights, causing the state co-culpability.

The State’s omission, which is significantly relevant to women and their effective access to culture, according to Habermas, means that any special regulations designed to compensate for the inequalities of women will depend on the way in which women are interpreted. experiences and existential situations typical of the sexes. Through the ‘normalizing effects’ produced by legislation and justice, they often become part of the problem that they should in principle solve.

Penetrating the emotion that guides the woman who practices or consents to abortion, who kills her child during or shortly after birth, or who abandons her right after birth, is a challenge and a learning experience. It means a taking of position, the beginning of a thought and the glancing of a new look at the woman and her life.

To undertake this analysis and to unveil this universe of emotions means to raise the veil that covers the most hidden and deep feminine feeling.

For these reasons we can affirm that in no other branch of the Brazilian legal system is there as much emotion as in Criminal Law. Crime has this characteristic, it stirs up the passions, it inflames the speeches, it rekindles the verb.

Women’s own crimes are fertile soil for the analysis of the norm in comparison with social reality. Since the first insertion of the law of these criminal figures, he sought the country’s legislature to reduce the guilt of the delinquent woman. The penalties applicable to crimes, varying in time, have always been significantly milder than in other crimes against life or health. It recognizes our repressive law that the motive of the crime is not the vile and abject motive, but the relevant emotion that dominates the pregnant woman, the infanticide and the mother who leaves the child of few days to the helplessness, leading to intentional acts and socially repudiated and criminally criminalized.

In these crimes we see the woman in the full fragility of her human condition, guided by her desires, hatreds and affections. Through them we can penetrate their psyche and unravel the tortuous paths that lead to crime. Through your study, we understand the human soul and exercise compassion.

And it is in this wake that Hungary stands out, stating that criminal law is not what is content with eruditeism and the impeccable elegance of theories, but what, preferably, seeks to find life and man for the knowledge of all their weaknesses and miseries, of all infamy and dereliction, of all anger and denial, and of the never-hopeless attempt to contain or correct them in the measure of earthly justice.

Women’s sexuality and the confrontation of the gender issue


Women’s sexuality and the confrontation of the gender issue are fundamental questions when it is sought to undertake the journey that will lead us to an understanding of women’s own crimes and the way in which culture has verticalized the relations between men and women, differentiating them fundamentally and mainly in of the sex with which they were born.

Sex and gender are not directly related. According to Emilce Dio Bleichmar, according to Emilce Dio Bleichmar, the biological and anatomical components and the sexual intercourse itself are understood, while under the noun gender, the psychological and cultural aspects of masculinity / femininity are grouped into a man or woman.

Stöller maintains that masculinity and femininity are a dense mass of convictions, an algebraic sum of “if”, “but” and “is,” not an incontrovertible fact. Such convictions are not eternal truths; they change when societies change.

Any analysis of the feminine condition in Criminal Law must pass through the institutions that form the society. The objectively orchestrated Family, Church, and State had until the recent epoch that they acted upon unconscious structures and thereby perpetuated the discourse of gender inequality.

It is undoubtedly the family that plays the leading role in the reproduction of male domination and vision. It is the precocious experience of the social division of labor and the legitimate representation of this division, guaranteed by law and inscribed by language.

As for the Church, marked by the profound antifeminism of a clergy always ready to condemn all feminine faults to decency and to reproduce a pessimistic view of women and femininity, as Muel-Dreyfus explicitly inculcated a familiaristic view, completely dominated by patriarchal values and especially by the dogma of the innate inferiority of women.

The State, for its part, accentuated Bourdieu, reinforced the prescriptions and proscriptions of the private patriarchy with those of a “public patriarchy,” inscribed in all institutions charged with managing and regulating the daily existence of the domestic unit.

Based on this tripod – Family, Church and State – the symbolic machine of inequality between the genres works, which undeniably strengthens the laws.

Bourdieu places the places considered as “natural” and “permissible” for each sex, stating that it is the structure of space, opposing the place of assembly or market reserved for men, and the house reserved for women; or inside, between the male part, the salon, and the female part, with the stable, water, and vegetables; is the structure of time, the journey, the agrarian year, or the life cycle, with moments of rupture, masculine, and long periods of gestation, feminine.

Women’s criminality is basically anchored in their sexuality.


Self-pledged or consensual abortion, infanticide and the abandonment of newborns are offenses originating from fruitful intercourse. Fetus, nascent or newborn become passive subjects of crimes when poverty, marginality, difficulty of access to the means of production, helplessness, hopelessness, settle in the feminine heart and lead to the death or abandonment of offspring.

The great transgression of the woman, Genesis tells us contained in the Old Testament, was the discovery of sex. Analyzing God’s punishments to her creatures, Rose Marie Muraro explains this: once knowledge has been acquired, man must suffer. Work enslaves him. And so he enslaves the woman. The relation man-woman-nature is no more of integration, but of domination. The dominant desire now is that of man. A woman’s desire will forever be wanting and it is this passion that will be her punishment. From then on it will be defined by its sexuality, and the man by his work.

Emotion, passion and the exercise of sexuality are indissolubly linked in the crimes of women. For Anibal Bruno, emotion and passion are forces that condition man’s individual-social behavior – emotion, which is a sudden movement of the soul, of affective charge, and passion, which is its continuous and lasting form. Their influence depends on their influence on the normality of the understanding and the process of volition. But in spite of its incidence in almost all crimes, our criminal system does not recognize them as capable of excluding imputability, even in cases where they obscure the understanding, preventing self-determination.

Emotion and passion, seen as part of the psychology of the human being, do not exclude criminal responsibility, but lessen punishment in common crimes. Then, it is not fair to recognize the strength of these feelings that guide the conduct of the woman who delinquishes in these crimes so special.

As Anibal Bruno rightly points out, it is not exactly the emotion that justifies the penal relaxation, but the reason it originates, and the motives for the conduct of the woman are based mainly on social issues or honor.

There is still, although less marked in some societies, a true female apartheid, whose essence is based on culture itself. Rodrigo da Cunha Pereira writes that despite the proclamation of equality by international organizations and democratic constitutions at the end of this century, the inequality of rights between genders is not dissolved. Woman continues to be the object of equality while man is the subject and paradigm of this so-called system of equality.

The rights to difference, embodied in formal equality, and rights to compensation for inequalities, in material, must go hand in hand. And only with the coexistence of both will it be possible, if we do not eradicate, at least significantly reduce female crime rates and move away from Tove Stang Dahl’s statement that up to now, studies on women have been, in great measure, studies of doom.

Correct, certain and just changes in legal diplomas should be sought in order to achieve the true principle of gender equality, the mark of a society that perseveres in the struggle for the reduction of social inequalities, with which, consequently, we will see a significant reduction of women’s own crimes.

Bail in sight for Roman Polanski, still incarcerated in Switzerland



Roman Polanski was waiting Thursday for the last green light from the Swiss Ministry of Justice authorizing him to wait for his eventual extradition to the United States in his cottage in Gstaad, equipped with an electronic bracelet and against bail of 3 million euros.

After the approval on Wednesday of the Federal Criminal Court (TPF) in Bellinzona for bail, the Swiss Ministry has ten days to lodge an appeal with the country’s highest court, the Federal Court of Lausanne.

Minister Eveline Widmer-Schlumpf hinted on Wednesday that an appeal was not on the agenda: “I do not see any reason to drag this decision before the Federal Court”.

Asked by AFP, his spokesman, Folco Galli said Thursday that the ministry would make its decision “quickly (…) well before the expiry of the appeal period of ten days”. “When I say fast, it’s really fast, you do not waste time when it comes to releasing an inmate.”

The spokesman did not want to say whether a decision would be made during the day.

“If the Ministry decides not to lodge an appeal, the release of Mr Polanski could in any case only take place once the deposit paid and the house arrest organized”, with the electronic bracelet, has -he adds.

These conditions are those that were laid on Wednesday by the TPF by accepting the second application for release of the Franco-Polish director, arrested in Switzerland on September 26 on US mandate.

Court’s decision


To counter a high risk of flight in the event of release, the Swiss court demanded 3 million euros, the wearing of an electronic bracelet and the delivery of Polanski’s identity papers.

The decision provides for his house arrest pending the Swiss court’s decision on his extradition to the United States where he is wanted for “sexual intercourse” with a 13-year-old in 1977.

According to one of his lawyers, Georges Kiejman, Roman Polanski is due to return to his chalet in Gstaad, a posh resort in the Swiss Alps.

There, he could wait more serenely the end of a process that should be long.

Switzerland has officially received the request for extradition of Americans on October 23, but another French lawyer Roman Polanski has already warned that the filmmaker would not accept extradition to the United States where he risks now a maximum of two years.

In addition, according to US judicial sources, Roman Polanski’s lawyers intend to seek their client’s acquittal at an appeal hearing in Los Angeles on December 10.

While the arrest of the Oscar winner in the United States and who received the Palme d’Or (2002) at the Cannes Film Festival, for “The Pianist”, had caused a scandal in France, the decision of the court of Bellinzona was hailed in France, described in particular as “wise and happy” by the former Minister of Culture Jack Lang.

Mathilde Seigner, French actress and sister-in-law of Roman Polanski, said Thursday that President Nicolas Sarkozy had “supported a lot” the filmmaker: “I would not go so far as to say that it is thanks to the president (French) that Roman was released, but he was great, and he supported him a lot. “

The sister of Emmanuelle Seigner – the companion of the French-Polish filmmaker – was delighted by the prospect of a family Christmas.

Justice Innovations in the Fight Against Crime

The continuous growth of the phenomenon of crime in our country has been causing great concern to all agents of the State who in some way act in the system of criminal repression, mainly due to the inefficiency that the Public Power itself has been demonstrating in combating this problem and mitigating the enormous degree of anguish lived by the whole society that assists perplexed to the escalation of the crime to the detriment of the law and the social peace.


Obviously, this is an extremely complex issue

an extremely complex issue

The solution of which will not be achieved by any sector in isolation, nor the implementation of plans prepared in a hurry to satisfy public opinion in the face of extreme episodes that, unfortunately, become more common.

It is necessary to devise long-term strategies, unrelated to electoral interests and political disputes, which act not only in repression but also in crime prevention, and to bring together, in a coordinated and efficient manner, all sectors of the State related to the fight against crime.


With respect to the role of the Judiciary in this context

role of the Judiciary

One must bear in mind the distinction between observance of procedural guarantees and the implementation of public policies of general action, inherent to each State Power. In other words, in spite of the observance of constitutional principles in the performance of the judicial-repressive activity (impartiality, inertia, presumption of innocence), the Judiciary can and should establish general policies to improve judiciary as an active and efficient instrument combat crime , abandoning the traditional attitude of passivity and inertia that, in the last analysis, characterizes an unjustifiable omission of Justice as an essential Function of the State.

Following this line of thought, we seek to adopt at the forefront of the Federal Courts of Justice of the Second Region (Rio de Janeiro and Espírito Santo) some measures and projects that are intended to make judicial activity more agile, effective and efficient in provision of criminal jurisdiction and criminal prosecution, acting in the restricted field of improvement of procedures and structural organization of judicial bodies, independent of lengthy legislative changes or governmental policies that imply new budgetary expenditures.

The first example of this policy concerns the custody and management of property seized in criminal proceedings.

The most recent studies on the phenomenon of crime show, criminal activities have been generating for their agents increasing amounts of financial resources that end up fueling and increasing such activities, while on the other hand, the Government has great difficulty to allocate the necessary resources to their repression, especially in countries subject to strict fiscal austerity rules such as Brazil.

In this context, it seems unjustifiable how the vast array of assets (real estate, cash, weapons, vehicles, computer equipment, etc.) has been historically administered and used. In fact, there is currently no systematic control over these goods in Brazil which, as a rule, is subject to deterioration or misuse.


Unprecedented project

Unprecedented project

In view of this situation, an unprecedented project was created in the creation of a unified register of assets seized in criminal proceedings that will allow, in addition to the registration of these assets in a computerized system, prompt identification and monitoring of essential information, such as, for example, the respective custodian and the final destination (or absence thereof) of the seized property.

To illustrate the importance of this project, only assets with a total value of more than R $ 4 million were registered with the 5th Federal Criminal Court / RJ (where it was implemented in a pilot role). Taking into account that only 10% of the total collection of lawsuits has been analyzed so far, and that there are only 8 Federal Courts with criminal jurisdiction in the city of Rio de Janeiro, it concludes without greater difficulties than the amount of seized assets, only with the Federal Court of the Capital / RJ, amounts to an estimated amount of millions of Reais.

If a national estimate is made, including the State Court, it does not seem exaggerated to say that the amount of resources that remain remains judicial custody far exceeds the resources allocated in the federal and state budgets for the acquisition of goods and equipment used in criminal repression.

Although the use of these assets by the public service suffers some legal and procedural limitations, it is unquestionable to keep them under effective supervision and adequate custody of the State to enable the practical application of the concept already established at the constitutional level 243 of the Federal Constitution) and legal (Law No. 10,409 / 2003) that assets seized from crime must be used, for the benefit of society, in combating crime itself.

Another line of action carried out by the Federal Court in the 2nd Region concerns the adoption of the most modern technological instruments, especially in the area of ​​information technology, for the more efficient and expeditious performance of criminal procedures. The implementation of the system of audiovisual recording, in digital media, of the hearings and testimonies rendered in court is a good example of this position.

Using equipment of relatively low cost (and whose purchase price is quickly compensated by the generated economy of paper, load for printers and other equipment), this system was installed in a pilot character next to the 2nd Federal Criminal Court / RJ having attained excellent results , among which the reduction of the average time of the audiences by two thirds is outstanding; the decongestion of the hearing guidelines, allowing a faster process of proceedings; and the greater fidelity of the testimonies brought to the process, which remain recorded on cd-rom, taking to the extreme the principle of real truth in the criminal process.




A third innovation adopted by the Federal Court of the 2nd Region (following the policy laid down by the Superior Court of Justice and the Federal Council of Justice) is the installation of Criminal Courts specialized competent to prosecute and try money laundering crimes and crimes against the national financial system in both sections that make up the judicial Region 2 (Rio de Janeiro and Espirito Santo).

In the case of crimes of an extremely complex nature and a high degree of sophistication, specialization allows greater efficiency in the repression of such a delinquent modality that, in the final analysis, serves the support for the most varied criminal activities, including those of greater to the community, among which are illicit drug trafficking, corruption in the public sector and illegal arms sales, whose fight must be prioritized.

These are, therefore, some projects and experiences that have been developed in the Federal Court of the 2 nd Region, following the policy of making Justice active and efficient in the fight against crime, assuming in the part that it is responsible for the solution of this serious scourge that afflicts our society more and more.