Publications - 24/08/20

Brazilian Federal Justice Council publishes Criminal law and Criminal Procedure statements

Between the 10th to the 14th of August 2020, the Brazilian Federal Justice Council made the first criminal law and criminal procedure journey, as a result of that event 32 statements relating to criminal law and criminal procedure were approved.

The Federal Justice Council statements have relevance since they serve as knowledge and understanding of the jurisprudence of the federal regional courts and the higher courts of Brazil. It is, in that way, a mandatory literature for any lawyer that practices criminal law.

In the set of approved statements, three groups of statements can be seen: those that reflects positions already consolidated in most courts, others that bring up new topics, and, the last ones, that does not reflect a common understanding of the Brazilian federal regional courts.

In the first group, we have as an example the first of the statements, which has the following text: “The purely procedural rule becomes effective on the day that it is published, maintaining all the effects of the procedure acts that were already practiced. A purely procedure rule is one that only regulates the procedure acts without interfering with the State’s punitive claim. The procedure rule that modifies the State’s punitive claim shall be considered a substantive law rule, which can be retroacted if it is considered more beneficial to the defendant”.

This distinction between purely procedural rules and substantive law rules was already being developed by the jurisprudence of the Superior Tribunal de Justiça regarding to matters of criminal statute of limitation law. In this sense, we can mention REsp n. 1524525/MG, which decided in the same way of the statement: “the controversy is known about the application of the law in time, demanding, for this, the definition of the legal nature of art. 83, §2º, of Law 9.430/96 (…) whether eminently criminal substantive rule of criminal procedure rule (…). The art. 83, §2º, of Law 9.430/96 (…) disciplines the suspension or the procedure and the statute of limitation of the States punitive claim, regarding a topic related to the punishment of the defendant, which evidence the substantive criminal law nature of the rule in question”.

For the second group, we can mention the third statement approved, which contains the following text: “the lack of confession by the suspect before the prosecution’s opinion is formed cannot be interpreted as a lack of interest in entering into a possible non-criminal prosecution agreement”. This statement proposes to regulate non-criminal prosecution agreements, recently introduced in the Brazilian legislation by the Anticrime Law. This text was formulated, probably, for police investigations inquires that occurred before the introduction of the non-criminal prosecution agreement. For subsequent inquires, this statement deserves to receive the subsequent criticisms: (i) it does not recognize that the suspect may have made an informed and legitimate decision on not to agree with the investigated hypothesis; and (ii) in addition to despising this decision, it also submits the suspect person to a second round of assessment whether or not he should confess the investigated hypothesis.

For the third group, we have the example of the statement number 27, which was approved with the following text: “There is no statute of limitation and there are not amnesty, grace or pardon for crimes that result in serious violations of human rights, practiced by public or private agents, according to the American Convention of Human Rights and the peaceful jurisprudence of the Inter-American Court of Human Rights, which must be observed by all of the organizations of the Brazilian State”.

Opposing the established in this statement, and to demonstrate that this topic is not a pacified issue on the Brazilian federal justice, the Tribunal Regional Federal of 3ª Região and the Tribunal Regional Federal of 4º Região have judgements maintaining the rejection of complaints filed by the Brazilian Federal Public Attorney´s Office, Ministério Público Federal (MPF), seeking criminal liability for public officials who were involved in criminal actions and omissions in the context of the Brazilian dictatorship.

This understanding is depicted in the judgements of the RESE n. 0004204-32.2014.4.03.6181 (TRF3) and RESE n. 5012165-46.2018.4.04.7200 (TRF4), which ended up accepting the validity of the Brazilian amnesty law, which had been endorsed by the Supremo Tribunal Federal (the Brazilian Supreme Court), but, years later, considered incompatible with the Inter-American Convention on Human Rights by the Inter-American Court of Human Rights.