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Brazil: Supreme Court Reaffirms that Convictions Are to Be Enforced After Confirmation by Appellate Court Decision

(Nov. 17, 2016) A decision on an extraordinary appeal (recurso extraordinário), issued by the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) on November 10, 2016, reaffirmed Court jurisprudence from October 2016 that determined that enforcement of a criminal sentence is to commence after a conviction has been confirmed by the first appellate court to consider the conviction. (Eduardo Soares, Brazil: Confirmation that Enforcement of Sentences Begins After First Appellate Ruling, GLOBAL LEGAL MONITOR (Oct. 11, 2016); STF Reafirma Jurisprudência Sobre Execução da Pena Após Condenação em Segunda Instância, NOTÍCIAS STF (Nov. 11, 2016).)

Minister Teori Zavascki, who wrote the opinion, recognized the general repercussion of the matter, explaining that the issue has social and legal relevance, that it is in the ordinary courts that facts and evidence are examined, not on extraordinary appeals. (STF Reafirma Jurisprudência Sobre Execução da Pena Após Condenação em Segunda Instância, supra.)

To support the opinion, Zavascki cited a study of comparative law to show that in no country in the world, after a conviction has been decided on appeal, is the execution of the conviction suspended pending a possible Supreme Court review. He listed, as examples, the laws of Argentina, Canada, England, Germany, France, Portugal, and Spain. (Id.)

Extraordinary Appeal

An extraordinary appeal is an appeal filed with the STF contesting the decision of a lower tribunal (acórdão) that contradicts a constitutional norm, declares unconstitutional a federal law or treaty, or considers valid a law or act of a local government contested under the Constitution.  Its main purpose is to ensure that the constitutional principle involved is not violated.  (4 Maria Helena Diniz, Dicionário Jurídico 77 (São Paulo, SP: Editora Saraiva 2005).)

Background

Constitutional Amendment No. 45 of December 30, 2004, included as a prerequisite for the admission of an extraordinary appeal the requirement that the constitutional question being raised present an issue with general repercussions.  The requirement is similar to the writ of certiorari used by the U.S. Supreme Court to review cases at its discretion. The Brazilian Constitution now states, “in order for the STF to examine the admissibility of an extraordinary appeal, which may be rejected only by agreement of two-thirds of its members, the appellant must demonstrate the general repercussion of the constitutional questions argued in the case, as provided by law.”  (Constituição Federal, art. 102(§ 3) (1988, as amended to 2016), PLANALTO.)