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With the arrival of the so-called “anti-crime” law, it became illegal to convert the “ex officio” of the prison from flagrant to preventive. With current regulations, it is necessary to have a formal representation of the police authority or to manifest a request from the Public Ministry for said conversion. The unanimous understanding is from the 2nd Panel of the Federal Supreme Court.
In a trial on Tuesday (10/6), the ministers agreed with the rapporteur, Minister Celso de Mello, who saw the measure as an “illegal patent.” The dean said his vote was long and he presented the menu in pairs.
The recent reform of Law 13.964 / 19, called “anti-crime”, modified articles 282, §2 and fourth and 311 of the Code of Criminal Procedure and eliminated the possibility that the judges ordered the conversion of preventive detention.
In Celso’s evaluation, the modification established a “more in line with the new requirements defined by modern Criminal Procedure with a democratic profile ”.
“This law, by suppressing the expression ‘ex officio’, totally and absolutely prohibited the preventive detention decree without the prior request of the parties or by representation of the police and the Public Ministry,” the minister explained, noting that if no it is lawful to act “ex officio of the Prosecutor’s Office in matters of precautionary deprivation of liberty.”
The ministers granted habeas corpus of the position to invalidate the decision that promoted the conversion. The HC was filed against a monocratic decision. In the specific case, Celso understood that it was justified to exceed the restriction provided in the Antecedent.
Basic laws
In the specific case, two men were arrested for drug trafficking. The floor magistrate considered that, given the coronavirus epidemic, there was no possibility of holding custody hearings. He affirmed that they would occur “at an opportune moment” and made the arrest of flagrante delicto preventive. The Minas Gerais Court of Justice and Minister Felix Fischer, of the Superior Court of Justice, denied them the HC.
In his vote, the rapporteur also reaffirmed the obligation of custody hearings. “Nothing would prevent the magistrate from using videoconferencing!” Celso considered the essentiality and the purposes for which the hearings are intended and affirmed that their omission is “a cause of the illegality of the detention in flagrante delicto.
“Whoever is imprisoned in the act, regardless of the motivation or nature of the act, must be without delay without the presence of a competent judicial authority,” the dean reaffirmed, citing the court’s peaceful jurisprudence.
The custody hearing, he stressed, “constitutes a subjective public right, of a fundamental nature, guaranteed by international human rights conventions, to which the Brazilian State has adhered.” For him, it is illegal to have any transgression of public power in this “essential prerogative instituted in favor of those who will suffer precautionary deprivation”.
HC 188,888
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