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Last Monday (4/2), the Minister of Justice, Sergio Moro, presented a package of legislative proposals entitled Anti-Crime Bill I receive the project cautiously, with some skepticism and a lot of questions, as it should be. Simple reason: public safety must be treated with the seriousness and political responsibility that it requires and deserves.
My prudence and my skepticism keep me on the alert in the title of the project. "Anti-crime". I ask: does anyone, after all, favor the crime? What legislative project is not "anticrime"?
Apart from the perplexities, I mean this: let's not deceive ourselves, do not fall in love with our own slogans . It's easy to be against what everyone is against. We are against crime! We are against corruption! Who is not? Abstractions require explanations, otherwise they will say nothing. Or tell everything without saying directly what they say, which is even worse.
Whatever it is, let's continue. Above all the problem was only the name of the thing. What I emphasize at the outset is the question of arrest already in the second instance: the project, it seems to me, obliges to serve a prison sentence immediately after the conviction in second instance. In his press conference, Moro made several references to the STF's current understanding of the presumption of innocence. But see the drafting proposal "anticrime":
"In pronouncing a judgment of conviction, the court will order the provisional execution of custodial sentences, restrictive of the right of the man or pecuniary, without prejudice of the knowledge of the calls that can be formed. "
Such is the thesis of two Supreme Ministers: the thesis of automatic arrest, according to which the second degree judgment is already the same written and motivated order that determines the Arrest of the defendant. Once the second degree criminal court is closed, the sentence imposed on the accused must be executed, regardless of the possibility of a special or extraordinary appeal (19459005) (19459005) seems to me very clearly unconstitutional, and (ii) does not translate "the current understanding", but rather the reading of two ministers. The minister can support what he wants, but it has to be said, and it has to be made clear.
That said, one step back. Much has already been said and written about the provisional execution of the sentence. Only I, myself, have talked about it here, here, here and here too. I was not the only one. There is still a half-old, half-beaten, half-forgotten book that has been asking the question for three decades. It's called, I do not know if you remember, Federal Constitution. The pamphlet states that " no one shall be sentenced until the final and final conviction of the criminal conviction ". As Minister Marc Aurèle says in his critique of Moro's proposal, " it is better to release one hundred guilty parties in front of an innocent prisoner ". And no need to say.
I am a democrat. It is legitimate to think, argue, to make an arrest before a final decision is morally morally, politically politically appropriate, it does not matter; but anyone who is willing to participate in the language game that is the law can not lose sight of the fact that this part of the constitutive rules of behavior is the Constitution. And we must not forget that the presumption of innocence is a constitutional question and not a " case of common law ".
On the subject of the Constitution and the "anticrime" project, there is also the issue of predicting initial compliance in a closed crime regime. Now, the Supreme has already decided the unconstitutionality of setting the initial regime in the abstract. If Moro says he wants to subscribe to the current conception of the Supreme and what he says about early execution – although, as I said, his project seems to agree only on two ministers – why not not also agree on this point?
Asked about constitutionality (in), it is true that Moro stated that his drafting proposal contained exceptions. Very good But what exceptions have to do with the constitutionality or otherwise of the initial fixation of the scheme in the abstract? There are one, two, twenty and a thousand exceptions, the fixation in advance will be abstract in any way. The fixation a priori is still in the abstract, because also fixing the exceptions are in the abstract.
There are no answers before the questions. And, in this sense, the questions concerning the project are numerous.
So, as you well know, I question the plea bargain. I talked about it here and here. I summarize my remarks in a question that I leave to the minister and to the reader: what kind of negotiation can be expected between the parties when it is accepted that one of them is not exempt? After all, this seems to be the current agreement on the performance of the Attorney General's office: an organ endowed with judicial guarantees and a discretionary power to act as a party. Guarantees to those who must act in principle, authorization to act strategically. Something does not seem right to me in this equation.
" Ah, but in the United States it is so! More questions: (i) So what? (ii) Even if it means something thing, how did you go there? is not it something that is in doubt in the country itself? Fortunately, I have an answer to this question: there are several Just to see, for example, here
A considerable amount of populism, violation of the presumption of innocence, hasty import of an institute .. Are there more problems? I am sorry, but there are still more problems Very serious See the proposed amendments to two articles of the Penal Code:
"Art. 23- § 2 The judge can reduce the sentence by half or not apply it if the excess is due to fear, surprise or violent emotion.
Art. 25 – sole paragraph: Subject to the requirements of the capitulation, it is taken into account in self-defense:
I – a police or public security officer who, in the context of an armed conflict or presenting an imminent risk of armed conflict, prevents unfairness and imminence his or one of another; and
II – the police officer or the public security officer who prevents aggression or the risk of aggression is held hostage by the victim during the commission of criminal acts . "
Moro emphasized in an interview the aspect of being" armed conflict situation ", claiming that the idea is to prevent the police from waiting for the criminal first, the good, curious is that this is only the situation of self defense, and the rest? beyond the badumption, what about the 39; aperture interpretation of the device? It will suit the "world" in these bus concepts.
" Imminent Armed Conflict "? are we going to anticipate self-defense?
Police violence is a serious problem in Brazil.It's not just me that I say.The same is true of the UN, Amnesty International, Human Rights Watch, etc. And I say more: this is what can testify to anyone who hears the voice of conscience and knows how to look aside.I ask: is it really reasonable to say that the police in Brazil kill little or no is violent? Which brings me to the second question: Would a police force that kills the world more would have slowed down the way of controlling its actions during clashes or actions?
Can you imagine a scenario in which in case of excess of public official? Another thing: I looked for and found nothing similar to the fear placement as an element that justifies reacting or killing. That is, if the policeman says " I shot, or even more, because I was scared ," he justifies it?
In summary, we will take a step back and violate several sections of CF Article 5 with the legal provisions of the project-package that weaken-diminish control over police actions.
For all this, the package is reckless. Well scrutinized and scrupulously the growing punitive image of everyday life (including within the legal community that has not studied law – in fact, it hates the law), it is possible to read in the stars the thesis void of the complaint that " human rights " (Still before yesterday, I heard a member say it on TV, loud and clear) or " rights of the man only for the rights of man! ". Now, any unresponsive and rational badysis of the Brazilian situation will understand that this jargon does not make sense. Unbearable in reality.
H. Mencken has already said that for every complex problem there is a simple solution. Simple, elegant, plausible … and false.
Is there a public safety problem? Let's go kill the bad guys. If that were the case, the Philippines would be paradise. Dráuzio Varela calls "sorcerer's apprentices" those who think that increasing sentences and imprisonment are a good remedy (read here). Sérgio Moro should talk to Dráuzio, who worked at Carandiru.
Aubert Waugh said that killing people is a solution that, unfortunately, does not take into account a small problem in the beginning: killing people, that 's wrong. Oh, Waugh was a conservative. Son of Evelyn Waugh, or Conservative. Moreover, even before of all his moral problem, the legislative proposal is a direct attack on all principiology. constitutional principle that underlies our law. Do you think it is good and desirable to increase the penalties and to reinforce the means to justify the actions of the police while weakening the procedural safeguards? I repeat, think what you want. But do not forget Mencken: complex problems can not be solved with easy answers.
Well, anyone who knows the court of the jury knows very well that anyone judging by an intimate sentence can not directly send someone into jail. A "yes" or a "no" without foundation ends with the matter? Complex problem, simple answer and … false.
More: Environment-related records presented in the package containing disguised recordings of conversations between lawyers and clients. Besides other problems. It is the Panopticon Benthamian denounced by Foucault.
Moreover, inclusion in the definition of crime by the name of gangs or factions is another serious problem. We innovate: we give factions a free legal status. From plateau. Great, huh? State and crime, equal today. Opponents. In a legal type, the name of the CCP, militias, etc., will be included in the history of Pindorama. What will law students say in 50 years? Complex problem, no solution .
Another point: the travesty prepared "at the introduction of the secret agent" ", flagrantly prepared, violates the clear position of the STF.
Professor Eloisa Machado de Almeida reports in pbading that "the STF has already removed the previous judicial review of the winning collaborations; prevented courts and high court judges from dismantling defendants with special jurisdiction; denied the provisional execution of a restrictive sentence and temporarily limited the telephone interception to the strict deadline of the judicial authorization. All indicate, a priori positions contrary to those defended by Moro. "It is a confrontation.
I repeat, think about what you want. But do not forget that the law comes earlier.There are many more problems with the Moro package.
Finally, I recall that in the eighteenth century, England turned the crime of punishment into a crime. the first four pickpockets and proceeded to a public hanging to give the example to the criminal malt.At the moment of the hanging, the city stopped.All went to see the show. In a article we wrote here, Jorge Bheron Rocha and me, Remember, about sanha the punitive spirits of Heinrich Kraemer and James Sprenger hovering over the Plateau and the Parliament The German monks , authors of Malleus Malleficarum can found this package " doctrinally "and institute still more things like – I am ironic – fine the lawyer who very fiercely pleads the innocence of the child. accused or badociated with more than one habeas corpus . Or establish that judges and members of parliament can veto names of lawyers who are not interesting for the good progress of justice. Or double the sentence of the defendant who, claiming to be innocent and having the opportunity to make a negotiable plea ends up being sentenced. The audacity would cost him a double sentence. Beat him with the hammer, then.
If Brazil thinks that it will fight violence – which is structural – with more violence, it will bury the law and sign the attestation of failure.
Lenio Luiz Streck is a lawyer, professor of constitutional law and post-doctorate in law. Member of the office of Streck and Trindade Advogados Associados:
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