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The Attorney General of the Republic, Augusto Aras, appealed today to the STF (Supreme Federal Court) against a precautionary measure granted by Minister Edson Fachin, who determined, due to the new coronavirus pandemic, that the prisoners of the so-called risk group they can leave the semi-open regime and serve a sentence under house arrest.
In the regulatory appeal, the PGR states that the decision violates the principle of individualization of the sentence, in addition to bringing potential risks to society.
Aras also argues that the measures to contain covid-19 in the prison system are already provided for in Recommendation 62/2020 of the National Council of Justice (CNJ), and argues that release requests should be analyzed individually, not collectively. , as already ruled by the Supreme Court in a previous ruling.
“Applications for the release or progression of the regime must be analyzed individually, without generalizing formulas or rules, as the DPU claims, under pain of violation of the principle of individualization of the sentence,” he said.
In the appeal, Aras explained “that although the process was filed in July and there was a dispatch requesting a manifestation from the MPF, the electronic records only reached the PGR on the 17th of this month, after the amparo was granted. “.
Thus, the Office of the Attorney General of the Nation only had access to the process for the first time this Thursday and therefore could not express itself in advance.
Fachin’s decision
Due to the pandemic, Minister Edson Fachin determined yesterday that prisoners at risk can leave the semi-open regime and serve their sentence under house arrest.
To benefit, in addition to being in a crowded prison, the prisoner must not have committed any violent crime and must demonstrate, with medical documentation, that he is at risk.
Fachin’s decision responds to a request from the DPU (Ombudsman’s Office), which requested the granting of habeas corpus to all inmates who are in prisons with a prison population beyond their capacity.
“Given the aggravated persistence of the pandemic picture of the health emergency derived from covid-19, I partially support the preliminary protection,” determined the Supreme Minister. “The body that issues the decision in the individual case must reevaluate the presence of the criteria established in this decision every 90 days.”
According to Fachin, the determination remains in effect until the end of the public health emergency.
In his decision, the minister also defended that the judges can substitute the decree of preventive or temporary arrests by house arrest or provisional freedom, with the option of also establishing precautionary measures, such as the use of an electronic anklet.
The conditions of the open regime under house arrest must be determined by the respective criminal enforcement court, which may also deny “flexibility” if one of the following possibilities occurs:
- When the prison unit did not register cases of covid-19
- When the prison unit takes preventive measures against the coronavirus
- When there is adequate medical care in the prison
Alternatively, the competent court may stop granting progression to the open regime under house arrest, if very exceptional situations arise that objectively demonstrate the absence of a specific and objective risk to the detainee’s health. [ou quando] the open regime under house arrest, even with electronic surveillance, is manifestly inappropriate for the specific case and creates too much risk for public safety, ”explained the Supreme Minister.
In the decision, Fachin also highlighted the risk of contamination by officials of the penal system.
The widespread contamination of the disease in the prison environment has repercussions outside the walls.
“However, measures to prevent infection and the spread of COVID-19 in prison facilities should not be considered only from the perspective of the detainee’s own right to health. It is also a public health problem in general,” wrote the Minister.
