As we've already discussed... criminal enforcement And its specifics were discussed in a previous blog post; today we'll delve deeper and talk about the petition for an incident in criminal enforcement proceedings.
Criminal enforcement is a very important topic for lawyers and legal professionals who intend to practice criminal law. Therefore, we will cover key points to understand what a criminal enforcement incident petition is and learn how to draft such a petition.
In matters of defense, if the petition for an incident of criminal enforcement is not filed correctly and well-prepared, the client may incur significant procedural losses, in addition to suffering illegalities.
Therefore, the idea of this article is to provide practical information to help in drafting this type of petition, as well as presenting a template for you to use as a basis. Let's go?
What is an incidental petition for enforcement?
The word "incident" symbolizes anything that occurs after something else. It derives from the word "incidir," which means "to fall upon," "to precipitate." In these terms, all issues that arise during or parallel to the execution process and have an impact on it could be called incidental issues.
An incident can be considered any conflict that arises in the process and relates to an object, perhaps different from the one pursued, but always connected to it. Thus, an incident in penal execution is a legal conflict that occurs during the execution phase and has an influence on the convicted person.
Thus, an enforcement incident is a contentious procedural relationship that arises during the execution of a criminal sentence, its content being a situation foreseen by law or a controversy relating to the interpretation or application of the judgment, or non-discretionary measures issued.
The Penal Execution Law (LEP), Law No. 7.210/84, discusses the conditions for serving a sentence and the means for the social rehabilitation of the convicted and interned.
Already included in the Penal Execution Law under the title "Incidents of Execution" are only conversions, excess or deviation, amnesty, and pardon. Much of the doctrine also adds to these the pardon, commutation of sentence, plea bargaining, remission, RDD (Regime Disciplinar Diferenciado - Differentiated Disciplinary Regime), unification of sentences, and the recognition of "novatio legis in mellius" (more favorable new law).
Therefore, conversions allow that, whenever the law permits, the applied penalty may be replaced or converted into another. Examples include:
– The conversion of a prison sentence into a sentence restricting rights;
– The conversion of a non-custodial sentence into a custodial sentence;
– The conversion of a prison sentence into a security measure;
– The conversion of outpatient treatment to inpatient treatment;
– The conversion of monetary penalties;
In this sense, excess is discussed when the measure applied goes beyond what is necessary, in a visible disproportion. The deviation, which can be positive or negative, indicates that the purpose of the penalty is not being fulfilled. Excess is constituted by the application of an excessive administrative punishment or for a longer period than foreseen.
Amnesty, on the other hand, can be defined as clemency granted by the Legislative Branch, through law, concerning the forgetting of criminal acts and thus generating the extinction of the punishability of those involved.
In turn, a pardon is an incident of execution in the LEP (Law of Penal Execution) that refers to a pardon granted by the President of the Republic, by decree.
Therefore, a petition for an incident in criminal enforcement proceedings is simply the act of attaching a procedural document to the case file, in which one of the parties will make a request to the judge related to a specific incident in criminal enforcement proceedings, which will be evaluated by the judge and either accepted or rejected.
What is the purpose of a petition for an incident in criminal enforcement proceedings?
A petition for an incident in criminal enforcement proceedings serves primarily to guarantee a right granted to the convicted person. Contrary to what many believe, freedom or a more lenient regime is an acquired right, meaning the individual must be eligible for it.
In this sense, the petition serves for the defense attorney, the public prosecutor, the prison council, or any other penal enforcement body to raise the incidents that occurred in the specific case, so that the Judge can take the necessary measures. This is a very important point for lawyers and legal professionals.
What are the possible requests for a petition regarding an incident in criminal enforcement proceedings?
The requests outlined in the aforementioned petition allow the Judge to analyze them and either grant or deny them. Therefore, great care must be taken when formulating the requests.
This is because the judge can only base their decision on what was requested in the petitions; therefore, it is extremely important that lawyers pay close attention to requesting everything that the case requires, mainly to avoid causing losses to the client.
Examples of requests that can be made in the petition include the conversion of a custodial sentence into a non-custodial sentence, the conversion of a non-custodial sentence into a custodial sentence, the conversion of a custodial sentence into a security measure, the conversion of outpatient treatment into inpatient treatment, and the conversion of monetary penalties.
Everything will depend on the specific case; in cases of supervening mental illness, for example, it must be duly analyzed and diagnosed by an official medical expert to prove its persistence to the point that justifies the conversion of the custodial sentence.
In addition to conversions, requests regarding excesses or deviations that occurred are also possible, as well as applications for recognition of amnesty, pardon, and clemency.
Therefore, for better visualization, we will present a model petition for an incident of penal execution based on article 185 of the LEP (excess or deviation in execution). As already mentioned, everything will depend on the specific case, as well as the legal basis:
Sample petition for an incident in criminal enforcement proceedings.
To the Honorable Judge of the ____th Criminal Enforcement Court of the District of __.
Case No. __
__________________________________ , already identified in the above-mentioned case file, imprisoned and held in the Penitentiary___ , under a closed regime, through his lawyer, respectfully appears before Your Excellency, based on article 185 of the Penal Execution Law, to raise the following:
INCIDENT OF EXCESS AND/OR DEVIATION IN EXECUTION
Based on the facts and arguments set forth below.
1- OF THE CONVICTION
(Summary of the achievement)
2- ON THE MERITS
The convicted individual has been experiencing deviations and/or excesses in the execution of his sentence, since the provisions of the sentencing judgment and the legal system have not been observed.
Article 185 of the Penal Execution Law states that "there will be excess or deviation in execution whenever any act is carried out beyond the limits set in the sentence, in legal or regulatory norms".
The execution of sentences and all the institutions that govern them are subject to the principle of legality, being bound by the provisions of the sentence or judicial decision and by the legal system, the law. If these limits are not duly observed, there will be an excess or deviation in execution. The practice of any act that exceeds the provisions of the sentence or the law will therefore constitute an excess or deviation in execution, and must be promptly rejected by the judge of the execution of sentences, who is responsible for ensuring the correct fulfillment of the sentence and the security measure (art. 66, VI, LEP).
In the context of criminal enforcement, in addition to strictly jurisdictional competence, the judge also has administrative responsibilities, as stipulated in Article 66, sections VI to VIII of the Law on Criminal Enforcement:
Article 66. The judge responsible for enforcement proceedings is competent to:
[…] VI – to ensure the correct execution of the sentence and the security measure;
VII – to inspect penal establishments monthly, taking
taking measures to ensure proper functioning and, where necessary, investigating responsibility […].
In the present case, it is observed that ...
3- REQUESTS In view of the foregoing, this incident is raised so that the deviations in execution may be corrected, the allegations made by the petitioner being investigated, and measures being taken for his transfer to an establishment that can ensure the fulfillment of his sentence in accordance with the law. Wherefore, having heard the esteemed representative of the Public Prosecutor's Office, the petitioner requests approval. , _ of _.
LAWYER
OAB
Conclusion
As we have seen, the Petition for an Incident in Criminal Enforcement Proceedings is an important tool for lawyers working in the criminal field. Therefore, pay attention to the points we have presented regarding the rule, so that you can advise and defend your clients' interests in the best possible way.
References
MIRABETE, Julio Fabbrini; FABBRINI, Renato N. Criminal Execution. 15th ed. rev., updated, reformed. São Paulo: Atlas, 2021.
Law No. 7.210/84, Law of Penal Executions.
