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Brazil: Confirmation that Enforcement of Sentences Begins After First Appellate Ruling

(Oct. 11, 2016) On October 5, 2016, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, or STF) ruled that article 283 of the Code of Criminal Procedure does not preclude the enforcement of a criminal sentence commencing after a conviction has been confirmed by the first appellate court to consider the conviction. (STF Admite Execução da Pena Após Condenação em Segunda Instância [STF Allows Enforcement of the Sentence After Conviction on Appeal] , STF website(Oct. 5, 2016); Código de Processo Penal [C.P.P.], Decreto Lei No. 3.689, de 3 de Outubro de 1941, as amended, PLANALTO.)

Article 283 of the C.P.P. states that no one may be arrested except when caught carrying out a criminal act (flagrante delito), by a written decision issued by the competent judicial authority as a result of a final criminal conviction (sentença condenatória transitada em julgado), or in the course of a criminal investigation or criminal proceedings, by virtue of a temporary or preventive arrest warrant. Two organizations requested a ruling by the STF, arguing that article 283 and the constitutional principle of the presumption of innocence required that enforcement of a sentence could not commence until all appeals were exhausted.

The Court rejected this argument, dismissing the request for that injunctions (liminares) be issued during the course of its consideration of two declaratory actions of constitutionality (Ação Declaratória de Constitucionalidade or ADC).  (ADC Nos. 4344, STF website (both Oct. 5, 2016).)  A declaratory action of constitutionality aims to obtain a declaration from the Supreme Court affirming that a given norm conforms to the Constitution.  (1 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 45 (São Paulo, Editora Saraiva, 2005).)

The proponents of the declaratory actions had argued that a previous ruling of the Court, issued in February 2016,  requiring that a defendant start serving a sentence after an intermediate appellate court’s confirmation of a criminal conviction, had resulted in many decisions that they viewed as contrary to article 283.  (STF Admite Execução da Pena Após Condenação em Segunda Instância, supra; Eduardo Soares, Brazil: Federal Supreme Court Changes Its Understanding of Enforcement of Sentences, GLOBAL LEGAL MONITOR (Mar. 11, 2016).)