Prescription is the loss of the State's right to punish due to the passage of time, occurring through the loss of the ius puniendi (before the final judgment of the conviction) or the right to execute the sentence (after the final judgment of the conviction).
In this article, we will discuss a very important topic for lawyers and legal professionals who are looking to learn more about or deepen their understanding of the world of criminal and criminal procedural law.
Here we will study what prescription is, what constitutes suspension and interruption, and the various ways it can occur, as well as identify how the jurisprudence of the higher courts has been addressing this topic.
What is a prescription?
Prescription, according to article 189 of the Civil Code, is the extinction of a claim (legal action to secure a right) due to time. The text of the aforementioned article describes that when a right is violated, a claim arises, that is, the right to file a lawsuit to secure the violated right.
This claim is extinguished by prescription after the expiration of the period defined by law. If the person does not file the lawsuit within the deadline, they lose the opportunity to initiate legal action.
Prescription can be applied in various branches of law, such as Civil Law, Criminal Law, Labor Law, among others. The time limit for prescription varies according to the nature of the obligation or right in question and can also be altered by law.
It is important to emphasize that prescription does not extinguish the obligation itself, but only the right to demand its fulfillment through legal action. Therefore, if a person does not exercise their right within the prescriptive period, they lose the right to demand fulfillment of the obligation.
What are the effects of prescription in criminal proceedings?
As previously mentioned, prescription occurs in various areas of law; in Criminal Law, criminal prescription occurs when the State can no longer punish a certain criminal conduct.
This happens because there is a time limit for applying this punishment. When this deadline is not met, the phenomenon of prescription of the criminal process occurs, meaning the State loses this right.
In other words, criminal prescription is the loss of the State's right to impose a penalty on the accused, due to the expiration of its power to punish. This period varies according to the severity of the crime and the maximum penalty stipulated in the Penal Code for that type of offense.
Criminal prescription can occur in two ways: through the prescription of the punitive claim and the prescription of the enforcement claim. The prescription of the punitive claim is the time limit within which the State can punish, and the prescription of the enforcement claim is the time limit within which the sentence can be executed.
The statute of limitations for prosecution varies according to the severity of the crime and the maximum penalty stipulated by law for that type of offense. This provision is found in Article 109 of the Penal Code, as follows:
Article 109. Before a final judgment becomes res judicata, except as provided in paragraph 1 of Article 110 of this Code, prescription is governed by the maximum term of imprisonment prescribed for the crime, as follows:
I – in twenty years, if the maximum penalty is greater than twelve;
II – in sixteen years, if the maximum penalty is greater than eight years and does not exceed twelve;
III – in twelve years, if the maximum penalty is greater than four years and does not exceed eight;
IV – in eight years, if the maximum penalty is greater than two years and does not exceed four;
V – in four years, if the maximum penalty is equal to one year or, if higher, does not exceed two years;
VI – in 3 (three) years, if the maximum penalty is less than 1 (one) year.
It is worth remembering that the statute of limitations for prosecution begins to run from the day the crime was committed, or, if the crime is continuous or ongoing, from the day its commission ceased.
The statute of limitations for enforcement proceedings refers to the loss of the State's right to punish due to the passage of time, enshrining the control imposed by law to ensure that investigative and judicial bodies fulfill their duty within a specified period, thus preventing the indefinite delay of the punitive threat against the perpetrator of the criminal offense.
– Starting point for the statute of limitations after a final and unappealable conviction:
Article 112 – In the case of Article 110 of this Code, the statute of limitations begins to run:
I – from the day the conviction becomes final, for the prosecution, or the day that revokes the conditional suspension of the sentence or parole;
II – from the day on which the execution is interrupted, except when the time of the interruption must be counted towards the sentence.
– Statute of limitations in the case of escape by the convicted person or revocation of parole:
Article 113 – In the event of escape by the convicted person or revocation of parole, the statute of limitations is governed by the time remaining on the sentence.
Remember that there are causes that interrupt the statute of limitations, which can be found in article 117 of the Penal Code, and it is extremely important to read them:
Article 117 – The statute of limitations is interrupted:
I – upon receipt of the complaint or accusation;
II – by pronunciation;
III – by the decision confirming the indictment;
IV – by publication of the appealable conviction sentence or judgment;
V – for the commencement or continuation of serving the sentence;
Thus, the phenomenon of criminal prescription is a mechanism that aims to guarantee legal certainty, so that people are not subject to the possibility of being punished indefinitely for a crime they have committed. Furthermore, it can encourage the speed and efficiency of the criminal justice system.
Why is the topic of prescription important for lawyers?
The topic of prescription is important for lawyers for several reasons, mainly because it is a fundamental institution of criminal and criminal procedural law, which directly affects the possibility of punishing an accused person and the enforcement of a sentence imposed in a conviction.
Therefore, it is essential that lawyers know and understand the statute of limitations applicable to different types of crimes, as well as the conditions and circumstances under which the statute of limitations may be recognized by the judge.
Furthermore, knowledge about the statute of limitations is also important so that lawyers can assess the viability of a defense, considering that the statute of limitations may be one of the arguments to be used to dismiss the accusation or prevent the execution of the sentence.
Finally, the statute of limitations is also important for managing criminal proceedings, since identifying the applicable statute of limitations can influence the procedural strategy adopted by the lawyer, such as, for example, waiving the statute of limitations in exchange for an agreement with the Public Prosecutor's Office.
Case law from the Superior Courts regarding Prescription.
The issue of prescription, of course, ends up being controversial depending on the specific case, and can generate diverse interpretations before the higher courts. Below, I will present some important rulings that require the attention of lawyers and legal professionals:
The starting point for calculating the statute of limitations for enforcement proceedings is the date the judgment becomes final for both parties.
PRESCRIPTION – APPEAL – INADMISSIBILITY. While the inadmissibility of an appeal of an exceptional nature has not been declared, the prescription of the punitive claim runs, not that of the enforcement claim. PRESCRIPTION – PUNITIVE CLAIM. Once the period foreseen in article 109 of the Penal Code has elapsed between the interrupting factors, the prescription of the State's punitive claim has occurred. PRESCRIPTION – ENFORCEMENT CLAIM – STARTING POINT. The prescription of the enforcement claim, which presupposes a situation revealing the possibility of executing the sentence, has as its starting point the final judgment, for both parties, of the conviction.
(AI 794971 AgR, Rapporteur: ROBERTO BARROSO, Rapporteur for the Judgment: MARCO AURÉLIO, Full Court, decided on 04/19/2021, ELECTRONIC PROCESS DJe-125 PUBLISHED 06/25/2021 PUBLIC 06/28/2021)
A court ruling that confirms a conviction also interrupts the statute of limitations, whether it maintains, reduces, or increases the sentence.
SPECIAL APPEAL REPRESENTATIVE OF THE CONTROVERSY. CRIMINAL LAW. STATUTE OF LIMITATIONS. CONVICTION SENTENCE. APPEAL. CONVICTION JUDGMENT. INTERRUPTION OF THE STATUTE OF LIMITATIONS PERIOD. AMENDMENT TO ARTICLE 117, IV, OF THE CRIMINAL CODE BY LAW NO. 11.596/2007. GRAMMATICAL, HISTORICAL, SYSTEMATIC AND PULISTIC INTERPRETATION. LEGALITY. SPECIFIC CASE. OBSERVANCE OF SUPERVENING STATUTE OF LIMITATIONS.
1. From a grammatical interpretation standpoint, there is no impropriety in concluding that the normative provisions of Article 117, IV, of the Penal Code aim for the conviction ruling issued in the first instance of appeal against the conviction sentence to be a cause for interruption of the statute of limitations.
2. According to the historical method of legal interpretation, it is valid to understand that the amendment made to Article 117, IV, of the Penal Code by Law No. 11.596/2007 aimed to add a new cause for the interruption of subsequent prescription, namely, the publication of the conviction judgment in the first instance appeal, and thus prevent merely dilatory appeals from reaching the prescriptive period.
3. The high degree of substitutivity, translativity, and devolutivity inherent in the appeal process allows the resulting conviction judgment, even if it confirms a previous conviction, to succeed it. Therefore, from a systematic-procedural standpoint, no systemic incompatibility is perceived that would prevent it from constituting an interruption of the statute of limitations, not even from the perspective of postulates inherent to Criminal Law related to the mandatory clarity and precision of a criminal norm.
4. In a notorious scenario where the appeals system fosters a high rate of appeals for dilatory purposes, in order to prevent the accused from being punished, it is legitimate, according to a purposive interpretation, to establish the date of publication of a conviction judgment resulting from an appeal against a conviction sentence as the starting point for the statute of limitations, since this prevents the promotion of impunity and, consequently, the discrediting of the Judiciary.
5. In resolving the specific case, although the interruption of the statute of limitations by the judgment confirming the conviction must be observed, the adjudicating body must also consider the possibility of the statute of limitations running during the course of proceedings.
6. Legal thesis: The conviction ruling referred to in item IV of article 117 of the Penal Code interrupts the statute of limitations, including when it confirms a conviction sentence, whether maintaining, reducing, or increasing the previously imposed penalty.
7. Special appeal granted to establish the understanding that the judgment confirming the conviction also constitutes an interruption of the statute of limitations and, ex officio, to declare the statute of limitations.
(REsp No. 1.930.130/MG, rapporteur Justice João Otávio de Noronha, Third Section, decided on August 10, 2022, REPDJe of September 21, 2022, DJe of August 22, 2022.)
REFERENCES:
Decree-Law No. 2.848, of December 7, 1940
Nucci, Guilherme. Statute of limitations for enforcement proceedings and presumption of innocence. Conjur, February 2023.
Search Engine: Say the Law. Case Law: Statute of Limitations.
