Removing the barriers to a better Brasil ?

Personally the Supreme Court decision that if a conviction is upheld by a higher court the individual goes to prison is just too little and far too late. What is the purpose of a state court trial in the first place if a conviction in that court means nothing?

Brazil is the ONLY country that I've ever heard of where the laws are such that any accused, who has enough money, could literally force a criminal case all the way up to the Federal Supreme Court before he/she would ever see the inside of a jail cell. In any other civilized nation once convicted the accused goes to jail, goes straight to jail, doesn't pass GO, and doesn't collect $200. Only if there are grounds for an appeal are they permitted to launch an appeal. Grounds for appeal means either an "error in law" or new exculpatory evidence that was not available at trial. Even when a convicted individual's appeal is accepted for hearing by a higher court, they still remain behind bars until that appeal is heard and is successful.

That is NOT the case in Brazil. Here an appeal of the conviction or sentence can be entered for any reason whatsoever.  Just not liking the idea is reason for appeal here in Brazil. The whole idea of being free during appeal defeats the Constitutional concept of "Everyone being equal before the law," guaranteed by Art. 5 of the Federal Constitution of 1988, in that it creates two separate justice systems, one for the poor and another for the wealthy. That's not even considering the special treatment received by convicted criminals who have university degrees.

While the Supreme Court decision will improve this situation marginally, it is not going to be the silver bullet that Brazilian politicians and jurists are touting it to be. We will only see even longer delays between the lower court conviction and hearing of appeals at the state Appeals Court level. For example, cases like Gil Rugai who was convicted of the 2004 murder of his father and stepmother. His conviction and sentence of 33 years and 9 month were finally handed down in 2013, fully 9 years later. Because he was not arrested "em flagrante" (within 24 hours) and no judge decreed that he be subjected to preventitive imprisonment, he remained free until that trial. Despite his conviction and sentence, he walked out the front door of the Court in Barra Funda still a free man, because he was not in custody at the beginning of his trial, and his defense lawyer immediately appealed. He is free, and leading a completely normal life to this very day, nearly 12 years after the murders. He is just one of many and that is not going to change because of this Supreme Court decision.

The entire judicial system in this country, all of the Penal Code, juvenile laws and sentencing guidelines must be changed before there will every be any substantial changes here. When the government won't even consider lowering the age of Penal Majority despite 90% of the population demanding they do just that, we can't expect anything to improve in any way.

Cheers,
James
expat.com Experts Team

Even when one is imprisoned in Brazil, they can be released by means of a Writ of Habeas Corpus.

Under Braziian law, ANYONE can petition the Court for a Writ of Habeas Corpus on behalf of any prisoner. The petitioner does not need to be the prisoner, his/her attorney of record. In fact, one does not even have to be a lawyer at all, or even know the prisoner, in order to petition the Court for a Writ of Habeas Corpus.

A prime example of this is the case of Natália Ponte, a psychologist, who is co-accused in the murder of her 3-year old son, Joaquim Ponte Marques on Nov. 5, 2013. The São Paulo Tribunal of Justice decreed "prisão preventitiva" and she was incarcerated. A São Paulo lawyer, ngelo Carbone, not at all connected to the case and who had never met Natália petitioned the Court for a Writ of Habeas Corpus alleging that she needed to breast-feed her then 4-month old child (that she had never breast-fed before). The Court granted the Writ and she was released on Dec. 11, 2013. Now, over two years later the case has not gone to trial and she too is out living a completely normal life.

It's ironic in the extreme, that when a poor black person is arrested in this country for stealing food in order to feed his/her small children, they go to jail, are rarely if ever granted bail (fiança), they don't have some do-gooder applying for a Writ of Habeas Corpus, and they often spend far longer in prison awaiting their case to come to trial than they would have been sentenced to if convicted. The standing joke among Brazilians (and sadly it's all too true) is that only the 3 "P"s go to jail... pobre, preto e prostituta.

The recent Supreme Court decision hasn't removed any small stones, it has only kicked a couple of tiny pebbles aside.

Cheers,
James
expat.com Experts Team