Author: João Marcos de Carvalho Pedra
The issue of imprisonment after a second-instance conviction is a topic that divides opinion among legal experts, legislators, and Brazilian society. This discussion, which involves constitutional principles, the effectiveness of the penal system, and questions of a sense of justice, has generated intense debates about the role of the Judiciary, the presumption of innocence, and its effectiveness in combating impunity.
The principle of presumption of innocence, enshrined in Article 5, item LVII, of the Federal Constitution, establishes that "no one shall be considered guilty until a final and unappealable criminal conviction is issued."
In other words, in theory, the execution of the sentence should only occur after all appeals have been exhausted, thus characterizing the phenomenon of res judicata and the formation of final judgment.
However, between 2016 and 2019, this topic was extensively deliberated by the Supreme Federal Court (STF), as will be seen in the following chapters, a period during which we were able to observe a jurisprudential shift.
Imprisonment after a Second Instance Decision in the Context of Combating Impunity
Proponents of imprisonment after conviction in the second instance understand that the measure is necessary in the fight against impunity, especially in cases of corruption and other so-called "white-collar" crimes.
These defendants receive particular attention because they are people who typically have access to legal and financial resources to indefinitely postpone the execution of their sentence.
From this perspective, the endless possibility of appeals would lead to "delayed justice," or even a complete absence of punishment for the convicted, thus undermining public trust in the penal system.
On the other hand, critics point out that the measure could lead to the imprisonment of people who may later be acquitted in higher courts, which would constitute a blatant violation of the constitutional guarantee of the presumption of innocence and open the door to a series of judicial errors.
For these individuals, imprisonment before a final judgment is especially problematic in a country with a precarious and overburdened prison system.
In this context, legislative reforms have been debated in order to circumvent the controversial and polarized scenario surrounding the issue. The National Congress has been debating proposals to amend the legislation and allow for imprisonment after a second instance conviction.
There are proposed constitutional amendments (PECs) that aim to modify the interpretation of the principle of presumption of innocence, determining that the execution of the sentence can begin after conviction in the second instance.
However, this change faces strong resistance because, to be approved, a constitutional amendment requires three-fifths of the votes from both deputies and senators in two separate votes.
The Brazilian Supreme Court (STF) and the Issue of Imprisonment After a Second Instance Appeal
The Supreme Court's first pronouncement on the subject occurred in 2009, when HC 84.078 was referred to the Full Court and the unconstitutionality of the anticipation of penal execution was recognized.
In that case, it was understood that this institution would only be justified in the name of the convenience of the magistrates, without any constitutional legal support. In other words, before exhausting all applicable appeals, the defendant in a criminal case could only, at most, have preventive detention ordered against him. Thus, the Court's first understanding was settled.
The Jurisprudential Evolution of the Brazilian Supreme Court Regarding Imprisonment After a Second Instance Decision
Back in February 2016, the Supreme Court ruled on HC 126.292, establishing the opposite understanding, given that it recognized that the provisional execution of a criminal conviction judgment issued on appeal did not compromise the constitutional principle of presumption of innocence, considering it constitutional.
At that time, the case involved a specific patient, in a decision that did not have erga omnes effects , although it could be used by judges of lower courts to justify decisions in the same sense. As mentioned, in Brazilian law, the binding nature of precedents is not mandatory, except in the cases presented in article 927 of the Code of Civil Procedure.
A few months later, in an abstract review of constitutionality, in the judgment of ADC 43-MC, the Court reiterated its understanding regarding the constitutionality of the provisional execution of a criminal conviction, generating the erga omnes effect that the previous decision lacked. There, the first binding precedent recognizing the constitutionality of provisional execution was established.
In 2019, the topic was again discussed by the plenary of the Supreme Federal Court in the judgment of the Declaratory Actions of Constitutionality (ADC) 43, 44 and 54. At the time of the judgment, Operation Lava Jato had around 100 convicts in the second instance, which generated a great political outcry.
In judging the ADCs (Direct Actions of Unconstitutionality), the Supreme Federal Court returned to the previous understanding that the Court had issued in 2009, in HC 84.078, declaring once again that the anticipation of penal execution is unconstitutional — an understanding that remains to this day.
As can be seen, the Court has changed its understanding twice over the course of ten years, reverting to its previous understanding, an act that undermines the principles of legal certainty, jurisprudential stability, equality, and equal treatment.
Reflections and Perspectives for the Future
Let's consider some important points:
(i) the attempt to balance security and the maintenance of individual guarantees. This is the core of the debate, given that criminal law cannot ignore constitutional principles, but also needs to offer effective and rapid responses to society.
(ii) Brazil needs metrics to evaluate the efficiency of the Judiciary in criminal matters, in order to avoid operational bottlenecks and enable practical access to justice.
Reassessing the number and appropriateness of permitted appeals, as well as the conditions for their admissibility, could contribute to a more expeditious and efficient justice system, without compromising constitutional guarantees.
(iii) There are also proposals to rethink the attributions of the superior courts, such as the STF and the Superior Court of Justice (STJ), so that they act primarily as bodies for controlling constitutionality and standardizing jurisprudence, and not as ordinary appellate instances in all proceedings.
This change would reduce the number of possible appeals, allowing the sentence to be carried out more quickly, while still preserving fundamental rights.
Conclusion
The issue of imprisonment after a second instance ruling is multifaceted, requiring a deep and careful debate about the values that should guide the Brazilian penal system. The solution to this impasse, it seems, lies in building a consensus in Congress and implementing reforms that balance the need for swift justice with respect for constitutional rights. In the coming years, Brazil will likely continue to seek a solution that meets the aspirations for justice, security, and respect for fundamental rights.
Bibliographic references
ASSIS, Guilherme Bacelar Patrício de. The decisional oscillation in the STF regarding the guarantee of the presumption of innocence: Between self-binding and the revocation of precedents. Available at: https://www12.senado.leg.br/ril/edicoes/55/217/ril_v55_n217_p135.
Lava Jato has about 100 convicts in the second instance. Estado de Minas , Belo Horizonte, October 16, 2019. Politics. Available at: https://www.em.com.br/app/noticia/politica/2019/10/16/interna_politica,1093419/lava-jato-tem-cerca-de-100-condenados-em-segunda-instancia.shtml.
LOPES JÚNIOR, Aury. Criminal Procedural Law. São Paulo: Saraiva Educação, 2018.
MENDES, Gilmar and BRANCO, Paulo Gustavo Gonet. Constitutional Law Course. São Paulo: Saraiva, 2012.
