Going to prison in Brazil is any easy task. The Brazilian procedural law, especially in criminal law, creates so many mechanisms for postponing the final and unappealable decisions that anyone having the resources to hire a lawyer or relying on an active public defender can postpone it. As such, many cases end up time-barred, although Brazilian legislation is slowly advancing in making crimes such as femicide or rape imprescriptible.
The difficulty of locking someone up someone starts with some fundamental rights listed in Article 5 of the Brazilian Constitution of 1988, especially Item LVI, which provides as follows:
No one shall be considered guilty before the criminal conviction becomes final and unappealable;
Article 5, item LVII of the Brazilian Constitution of 1988.
Locking someone becomes even more complex with the provisions of Article 5, LXI which provides as follows:
No one shall be arrested unless in flagrante delicto or by a written and grounded order of a competent judicial authority, except for military transgression or specific military crime, as defined under the law;
Article 5, item LXI of the Brazilian Constitution of 1988.
In Brazil, the law allows detaining someone in some circumstances such as:
In 2019, however, deputy Alex Manente, from the Citizenship of São Paulo party, presented the Constitutional Amendment Bill (PEC) 199/19, with a peculiar solution, to say the least. Instead of allowing someone to be arrested after being merely convicted in appellate courts, it proposed the extinction of Special Appeals to the Brazilian Superior Court of Justice (STJ) and to Extraordinary Appeals the Brazilian Supreme Court (STF), which are provided for in Articles 102 and 105 of the Brazilian Constitution. As such, the conviction in appellate courts become final in and of itself since it would not be subject to further appeals. Thus, the provisions of Article 5, which deal with fundamental citizen rights would remain unchanged, as it is considered an entrenched clause, not subject to change when subtracting or reducing the rights defined therein.
On the other hand, said Bill would still allow the defendant to submit a special or extraordinary revisional suit to the Supreme Court and the Superior Court of Justice, but without this prerogative preventing the sentence in prison.
But this was definitely not the only initiative on the same subject that failed to amend the Brazilian Constitution. Former Minister and currently senator Sérgio Moro reopened Senate Bill (PLS) 166/18, arising from a breakdown of the anti-crime package presented by him when in the Ministry of Justice, during the term of former President Jair Messias Bolsonaro, and authored by Senator Lasier Martins of the Social Democratic Party of Rio Grande do Sul.
Unlike the Constitutional Amendment Bill 199/19, this Senate Bill 166/18 was severely attacked by some constitutionalists, as it focused on amending the Code of Criminal Procedure, allowing the imprisonment from the conviction in appellate courts; which goes against said constitutional provisions; therefore being unconstitutional.
Indeed, this will be a very controversial topic that Brazilian society will watch over the coming months, in yet another attempt to reduce the reigning impunity in terra brasilis.
