Lawyers criticize the absence of forgiveness; Fear cogita review decision

S & P not published, it will be the first time that there will be no Christmas pardon since the promulgation of the 1988 Federal Constitution.

Check the opinion of the l & # 3939; expert:

Thiago Turbay, criminologist
Forgiveness covers the expectations of the democratic state and predicts an effective instrument of badertion of fundamental rights, and above all of human dignity. Sorry is an ally of society.

Fernando Augusto Fernandes, Criminalist
In Brazil, which ranks third among the most suspended countries in the world, accumulating more and more overcrowding and the prison system, the lack of forgiveness represents the absence of valve.

Maíra Fernandes, criminal lawyer and former president of the Penitentiary Council of the State of Rio de Janeiro
Maíra Fernandes, criminal lawyer and former president of the State Prison Council of Rio de Janeiro
] The absence of publication of the decree of pardon by the President of the Republic, on the grounds that the issue is on the agenda of the FST, shows that we live, in fact, times very strange. Forgiveness is foreseen since our first imperial constitution of 1824 and, at least during the democratic period, there is no news of the absence of publication of a decree of forgiveness. Forgiveness and commuting penalties fall under the exclusive jurisdiction of the President of the Republic. He alone can do it, and no one can change that competence provided for in the Federal Constitution. Temer's decision therefore concerns the separation of powers in a democratic state and a state. In addition, there is a second concern, a practical concern: we live in a country with over 600,000 prisoners and the Brazilian penitentiary system is now "a state of unconstitutional fact," as acknowledged by the STF. The absence of forgiveness can be the last drop of this bankrupt and overcrowded system, about to explode. This is a very important measure of criminal policy, which affects the lives of thousands of prisoners.
It is unfortunate that the Temer government takes the position of not granting pardon, which is a sedimentary tradition in the history of Brazil. The FTS has done a lot of damage by giving an injunction against grace, which comes under the jurisdiction of the President of the Republic. In addition, Minister Fux's request for a hearing was unfortunate at a time when he was already 6 votes in favor of saying that the decision not to release the pardon is unconstitutional and illegal. Now, the president who renounces the granting of leniency aggravates the situation, makes a dramatic picture.

Nabor Bulhões, Jurist
Grace is an institute of private jurisdiction.

Nabor Bulhões, jurist
Grace is an institute of exclusive competence. and discretionary of the President of the Republic, as is apparent from the constitutional text and as the STF has always decided. I do not know why the president has decided not to give thanks for Christmas this year, but that decision is within his discretionary powers. However, in so doing, it breaks with a tradition that has been maintained over the years and does not contribute to the confrontation of the extremely serious framework of hyper-embarrbadment that has made the Brazilian penitentiary system one of the worst in the world. So that, not so long ago, the STF declared that it was "unconstitutional" because of its absolute inability to respect the fundamental rights of prisoners!

Marcelo Feller, Criminologist
Forgiveness is the private act of the president, his absolute decision. The minister has been strongly criticized for his interference. The President has the right, within the limits of his powers, to forgive or not. The problem that forgiveness is used as a penitentiary emptying system. In Brazil, we have an endemic problem of hyper-prison population without corresponding vacancies. All Brazilian channels have been sold and forgiveness has always worked as a way to clear the chains. We will see how the government will position itself when the channels reach an unsustainable level, as they risk rebellions and other problems that can be solved by the next president. This seems to me a populist measure, although legitimate. If the circumstances were different, such as the accession of the President of the Republic to a penal policy tightening the penalties, the option of not granting the pardon would be even justifiable.

Fabricio de Oliveira Campos, criminologist
But this is not the context. What happened this year was an unjustifiable submission of the executive power to a control that the STF could not exercise, namely the judicial censorship on an exclusive act of the President of the Republic. In various democratic models, the chief executive has the power to dictate the criteria for termination or commutation of sentences and is subject only to a possible loss or gain in political capital, but never to the point of being subjected to an interference of this power. sphere. I do not think there exists or can exist a constitutional principle of mandatory sanction, but rather the opposite: the power to commute sentences, which explicitly incorporates our constitutional system. It is unfortunate that this situation has led this candidate to exercise a prerogative that was part of the activity of the executive power in recent decades.

Cristiano Zanin, Criminologist
The granting of grace is the exclusive prerogative of the President of the Republic. in accordance with our Federal Constitution and respects a number of human rights and criminal policy obligations that Brazil has badumed through international treaties. The state judge who ratifies generous compensation for people who have committed crimes in exchange for highly questionable appeals should neither hinder nor discourage the granting of rehabilitation, even through the relevant function that the institute fills in the cruel reality of the incarceration of the country

Nathália Rocha, criminologist
The decision of the president is probably a reflection of the pressure he suffered not to to reach the emblematic cases of prisoners for corruption. This is also a nod to the upcoming government. It is, however, unfortunate that the executive is considering a minority decision, while the prerogative of constitutional Christmas pardon is much greater than the "lava jet" operation. It should be recalled that the presidential pardon of 2017, which the STF discusses, whose trial has been postponed until next year, is considered valid, by majority.

Luciana Boiteux, professor at UFRJ
This is a lamentable decision because it breaks with the democratic and humanitarian tradition of granting the grace that all presidents have honored since the re-democratization. From the point of view of penal policy, this will have an impact and will further aggravate the overpopulation of the penitentiary system. We must remember that forgiveness from last year was suspended by the STF. It will therefore be two years without pardon, which means that prisoners who could have left or whose sentence was reduced at that time did not receive any benefit and the new entries continue. Brazil today has the world's third largest prison population, in miserable conditions, which will be exacerbated in the absence of annual pardon. Recalling that this situation strengthens the power of criminal organizations, which strengthen their capacity to recruit prisoners as the prison is overcrowded. Very disconcerting in this decision of Temer, which demonstrates his ignorance of grace and its importance as a mechanism to minimize overcrowding.

ADI 5,874