THE BRAZILIAN CRIMINAL PROCEDURAL LAW SYSTEM

By Wanderlei De Paula Barreto

I. Introduction

This paper will focus basically on the Constitutional principles, the fundamental rights and guarantees, and the framework of the Brazilian Penal System. An important central matter of the Brazilian Criminal Procedural Law System is the restrictions of liberty. This paper will also discuss the preconditions, limits, enforcement, and remedies against unlawful imprisonment. Lastly, the paper presents information about innovations presently being studied concerning possible changes in criminal procedure legislation.

II. Constitutional Principles, Fundamental Rights and Guarantees

The Brazilian Constitution on 5 October 1988 established the following principles, the fundamental rights and guarantees concerning human rights, particularly concerning criminal procedure:

1. The dignity of the individual (art. 1, III)

2. Prevalence of human rights in the international relations of the Federal Republic of Brazil (art.4, II);

3. No one shall be compelled to do or refrain from doing something except by virtue of law (art. 5, II);

4. No one shall be submitted to torture or do inhumane or degrading treatment (art. 5, III);

5. The home is the individual's inviolable asylum, and no one may enter it without the dweller's consent, except in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order (art. 5, XI);

6. All persons are guaranteed, without the payment of fees:

a) the right to petition public authorities in defence of rights or against illegality or abuse of power;

b) the obtaining of certificates from Government Departments, in order to defend rights and to clarify situations of personal interest (art. 5, XXXIV);

7. No law may exclude from review by the Judiciary any injury or threat to a right (art. 5, XXXV);

8. There shall be no extraordinary courts or tribunals (art.5, XXXVII);

9. The institution of the jury is recognized, with the organization given it by law, assuring:

a) full defence;

b) secret voting;

c) sovereignty of verdicts;

d) jurisdiction to judge intentional crimes against life (art. 5, XXXVIII);

10. Unless defined in prior law, there are no crimes, nor are there any penalties unless previously imposed by law (art. 5, XXXIX);

11. Criminal law shall not be retroactive, except to benefit the defendant (art. XL);

12. The law shall punish any discrimination whatsoever attacking fundamental rights and liberties (art. 5, XLI);

13. The practice of racism constitutes a crime that is neither subject to bail nor to the statue of limitations and is punishable by imprisonment;

14. The law shall regard as crimes that are not subject to bail, clemency or amnesty, the practice of torture, illicit trafficking in narcotics and similar drugs, terrorism, and those crimes defined as heinous; principals responsible for these crimes are those who although able to avoid them, fail to do so (art. 5, XLIII);

15. No penalty shall extend beyond the person convicted (art. 5, XLV);

16. The law shall regulate individualization of punishment and shall adopt, inter alia, the following:

a. deprivation or restriction of liberty;

b. loss of property;

c. fines;

d. alternative social service;

e. suspension or deprivation of rights (art. 5, XLVI).

17. There shall be no penalties:

a. of death,⁽¹⁾

except in the case of declared war, in the terms of art. 84, Section XIX;

b. of perpetual character;

c. of forced labour;

d. of banishment;

e. of cruelty (art. 5, XLVII);

18. Sentences shall be served in different kinds of establishments, according to the nature of the criminal offence, the age and the sex of the person sentenced (art.5, XLVIII);

19. Prisoners are assured respect for their physical and moral integrity (art. 5, XLIX);

20. Female prisoners shall be assured conditions that allow them to remain with their children during the period of breast-feeding (art. 5, L);

21. No one shall be tried or sentenced other than by a competent authority (art. 5, LIII);

22. No one shall be deprived of liberty or property without due process of law (art. 5, LIV);

23. Litigants in judicial or administrative proceedings and those accused in general are assured the right to reply and an adequate defence, with the measures and recourses inherent therein (art. 5, LV);

24. Evidence obtained through unlawful means is inadmissible in judicial proceedings (art. 5, LVI);

25. No one shall be considered guilty until his criminal conviction has become final and nonappealable (art. LXVII);

26. The law may restrict publicity of procedural acts only if required to defend privacy or social interest (art.5, XL);

27. No one shall be arrested unless in flagrante delicto or by written and substantiated order of a proper judicial authority, except in the case of a military offence or a strictly military crime, as defined by law (art. 5, LXI);

28. The arrest of any person and the place where he can be found shall be communicated immediately to the proper judge and to the arrested person's family or to a person designated by the judge (art. 5, LXII);

29. One under arrest shall be informed of his rights, which include the right to remain silent, and shall be assured of the assistance of his family and legal counsel (art. 5, LXIII);

30. One under arrest has the right to identification of those responsible for his arrest or his interrogation by police (art. 5, LXIV);

31. Judicial authorities shall direct immediate release of those illegally arrested (art. 5, LXV);

32. No one shall be taken to prison or held therein when the law permits provisional liberty, with or without bond (art. 5, LXVI);

33. Habeas corpus shall be granted whenever someone suffers or finds himself threatened with suffering violence or coercion in his freedom of movement through illegality or abuse of power (art. 5, LXVIII);

34. Habeas data shall be granted:

a) to assure knowledge of personal information about the petitioner contained in records or data banks of government or public entities;

b) to correct data whenever the petitioner prefers not to do so through confidential judicial or administrative proceedings (art. 5, LXXII);

35. The State shall provide full and gratuitous legal assistance to anyone who proves that he has insufficient funds (art. 5, LXXIV);

36. The State shall indemnify a person convicted by judicial error, as well as a person who remains imprisoned longer than the period established by his sentence (art. 5, LXXV).

A very important achievement of the modern Brazilian Constitution is the self-executing character of its rules concerning the fundamental rights and guarantees. Article 5, paragraph 1, declares that "the rules defining fundamental rights and guarantees are applicable immediately". It means that in case of transgression of these rules by government or public entities the petitioner can make use of the writ of security.

According to art. 5, LXIX, of the Constitution:

Writ of Security shall be issued to protect a liquid and certain right not protected by habeas corpus or habeas data when the party responsible for the illegality or abuse of power is a public authority or an agent of a legal entity performing governmental duties.

III. Brazilian Penal Framework

Brazilian criminal legislation can be found in the Penal Code (hereinafter CP), the Code of Criminal Procedure (hereinafter CPP), the Law of Penal Enforcement (hereinafter LEP), and the uncodified laws and Law of Judicial Organization.

The CPP applies throughout the whole country. It was enacted under the dictatorial government of Vargas in the Fourties and is the result of a draft by a commission composed of the same criminalists who drafted the Penal Code, without the participation of proceduralists.

The CPP provides some excessively harsh rules. A mandatory preventive detention may be ordered against a defendant based solely upon the gravity of the offence or the "dangerous look" of a defendant who has been previously detained because he did not bring his identification or because he was unemployed or was living in slums.

In 1977 preventive detention rules were modified by law requiring proof of the necessity of detention as a condition to preventive confinement.

By force of art. 24, XI, of the Constitution, the states are now granted the authorization to legislate concurrently with the federal congress on procedural matters.

The federal structure of the Brazilian political system determines both the state and federal court system, as well.

Special and ordinary courts compose the federal judicial system. Military and electoral courts are a part of the special jurisdiction. Other crimes of particular interest to the federation fall under the jurisdiction of the ordinary federal district and appellate courts (art. 106-110 of the Constitution).

In each state there are courts of first instance and a supreme court. Courts of first instance are not multi-judge courts. The part of a multi-judge court of first instance is played by the tribunal of the jury, which has Constitutional jurisdiction to adjudicate wilful crimes against human life, and by the military councils of justice.

According to art. 5, XXXVII, of the Constitution "there shall be no extraordinary courts or tribunals". However, special courts (elections courts, labour courts, military courts) are not regardered as extraordinary courts. The last ones are only those created for the judgement of certain civil and criminal cases outside of the structure of the judiciary, not clothed with the magistracy guarantees. The violation of this rule disregards the principle of the "natural judge" at the same time. A "natural judge" is considered an adjudicatory official who belonged to the legitimate judiciary organ already in existence before the facts of the alleged offence took place.

The guarantee of the "natural judge" is complemented by the rights granted to the magistracy by art. 95 of the Constitution, namely, appointment for life, unremovability and a guarantee of salary. A judge can only be discharged from his office if he is found guilty of the commission of a common crime or of a crime connected with his function; he can only be removed or transferred from his office if he makes such a request or if there is a public demand for his removal, although in the latter case the judge has the right to due process of law and to an adequate defence.

Separate and independent from the sentencing body in the Brazilian accusatory system, the Public Ministry is the official body generally entrusted with the defence of the juridical order, the democratic regime and the indispensable social and individual interests.

Concerning criminal procedure, the Public Ministry acts in two fields: it prosecutes public criminal actions and functions as custos legis in private criminal actions. There are two kinds of Public Ministry in Brazil, federal and state.

To render legal advice to the needy and defend them at all instances (art. 134), the new Constitution created the Public Defender's Office.

Brazil has nearly 15,000 judges and prosecutors, over 200,000 admitted lawyers, 2,500 prison institutions and 60,000 convicted and imprisoned persons. The judge per capita ratio in Brazil -- 45 judges for each 1 million people -- is similar to that of the Netherlands and higher than Japan.⁽²⁾

IV. Fundamental Principles

1. The Principle of Actual Truth

The initiative of the judge in the production of evidence is one of many principles Brazilian criminal procedure is governed by.

Unlike civil suits, where the initiative of the parties starts and keeps the proceeding moving, in criminal procedure judicial initiative is indispensable as a requirement of the Principle of the "Actual Truth". All useful evidence appropriate to lead to the finding of the actual truth may be ordered or "discovered" by the judge.

The Principle of the Actual Truth imposes a duty on the judge to search for the real, objective truth rather than the allegations and defences formally declared by the parties. For that responsibility, the judge holds the inquisitorial power and can order sua sponte the production of evidence necessary to ascertain the truth of the very fact or point in issue. He may even order the substitution of ineffective counsel.

2. The Principle of Legality

As an indispensable condition in the establishment of the State of Law, the Principle of Legality was adopted by the Brazilian Constitution. Beyond the Constitution this principle became law in art. 350 CPP, which defines unlawful detention as an official crime, and in Law No. 4,898, enacted 9 December 1965 and referred to as the "Law Against the Abuse of Power". Both laws are regarded as proof that government and civil society are concerned about offences resulting from the misuse of government power under color of law.

3. Due Process of Law

Due process of law is granted explicitly in art. 5, LIV, of the Constitution, but is implicit as well in many other provisions about the adversary system concerning equality between the prosecution and the defence.

It is a double guarantee: first, it is indispensable under nulla poena sine judicio; second, it is necessary to assure par conditio or the equality between the parties, the adversarial process and the adequate defence.

Usually the state carries out a preliminary investigation of facts in preparation for the proceeding. Notably, the law allows the state attorney to do so in secret. However, the government cannot in this criminal investigation restrict, limit or in any way whatsoever affect or disturb the freedom of the investigation.

4. The Right to an Adequate Defence

In contrast to other countries, the pre-trial investigation of a crime under Brazilian procedures extends until the preliminary taking of evidence and is totaly adversarial.

There is one exception to this rule with regards to police investigation, because the police taking of evidence is not considered part of the procedural pre-trial investigation but merely a point of departure for developing the facts.

The so-called Principle of the Adequate Defence has inherent recourses:

a) the right to a declaration of the charges;

b) the right to reply or answer the charge;

c) the right to follow the production of evidence and to give rebuttal evidence;

d) the right to a "technical" defence, thus the right to an attorney;

e) and the right to appeal an adverse verdict.

A task force of the Criminal Tribunal of São Paulo has surveyed, over a one year span, the one hundred most important decisions from that court on contradictory and adequate defence matters. One of its conclusions is that the adversarial system must be complied with throughout the whole instruction.

Vicente Greco Filho⁽³⁾

goes farther and suggests the necessity for an adversarial procedure over the entire proceeding.

The jurisprudence before the Constitution of 1988 made the decision to admit unlawfully obtained evidence dependent upon the comparison between the value of the evidence to the prosecution, i.e. society's desire to combat crime, and the sacrifice of individual rights.

The general rule of the Constitution is the inadmissibility of such evidence. Vicente Greco Filho,⁽⁴⁾ nevertheless, according to the prior jurisprudence proposes some exceptions to the rule when the good obtained by the presentation of the evidence is so important in order to justify the exception to this rule, as is the acquittal of an innocent defendant.

The right to a full defence is further insured by the complementary guarantee of an adequate defence. This means that the defendant must be defended by or at least assisted by a defender with a similar legal training as the prosecutor. The exercise of the "technical" defence is carried out through the representation by an attorney. The defendant may take his own defence, under the condition that he accepts the counsel of an attorney, otherwise the defendant is considered formally not defended and the proceeding annulled, according to Sumula No. 523 of the Constitutional Supreme Court. This requirement in criminal proceedings is not just a mere presupposition, like in civil suits, but an indispensable precondition for the equality between the prosecution and the defence. As a result, any criminal proceeding carried out without the effective assistance of counsel to the defendant is deemed invalid.

The right to an ample defence does not mean only the right of reply. It represents a greater guarantee and seeks to make available to the defendant all means and resources necessary for the effective defence of his case. In accordance with that purpose, the Brazilian criminal procedure system provides the right of defence in a criminal appeal and the request for a re-trial en banc, in which only the lawyer may plead and argue.

Supported by this principle, the courts have considered certain provisions of the CPP that limit the ample defence of the accused -- Articles 501 and 601, for instance -- to have been revoked.

To implement the Principle of Adequate Defence Brazilian criminal proceeding resorts to some technical measures such as the adoption of the accusatory system, the duty to formal presentation of the indictment, the need to a regular citation of the accused, the adversary proceeding and the guarantee of publicity of procedural acts.

The accusatory system consists of the institutional separation of the accusatory body from the sentencing organ, unlike the inquisitorial system whereby both the functions, accusatory and sentencing, stand centralized in the same person -- the judge.

According to Brazilian law (art. 129, I, CPP), the Public Ministry is the exclusive organ entitled to initiate the public criminal actions, which is done by indictment. Therefore an action popular is not admissible in the Brazilian criminal law system, unlike former English usage -- qui tam pro domino rege sequitur quam pro seo ipso, who sues as well for the king as for himself. With this prohibition, the legislator sought to avoid private blood feuds and extortion.

The duty to formal presentation of indictment requires further that the indictment be worded completely and clearly in order to permit the defendant to prepare an efficient defence. A failure to indict or a faulty indictment can be attacked through habeas corpus.

The need to a regular citation means that the formal indictment must be delivered directly in the hands of the accused. A citation in the form of an edict is only exceptionally admitted if the accused cannot be found. A failure to serve a regular citation can be attacked through habeas corpus.

The adversarial proceeding assures the defendant the right to reply, to present evidence, to follow the production of the evidence and to give rebuttal evidence, to cross examine the witnesses, to express his opinions about any alleged matter after indictment, to be present at the whole hearing arguing his position and to appeal to a superior court to review an adverse sentence.

Publicity is necessary to give effect to the right to an ample defence. It is an achievement of the French Revolution and in that context the words of Mirabeau before the Constitutional Convention became well-know: "donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi même, si vous voulez; peu m'importe pourvu qu'il ne puisse rien faire qu'à la face du public".⁽⁵⁾

In practice Brazilian judges have been using the faculty granted by the Constitution to limit publicity (mainly television), in order to avoid the opposite inconvenience of strepitus processus such as in the case of California v. Simpson in the USA.

It is important to mention that all these rights and guarantees that give Brazil the status of a State of Law have not always been a matter of course in the recent dark past of the dictatorial military regime. A certain "National Security Law" allowed (art. 53) an accused to be held in prison up to 30 days before requiring the police to declare the arrest to the judicial authority in "reserved" form, which means a clear violation of art. 153, 12 of the First Amendment to the Constitution enacted by the same dictatorial government.⁽⁶⁾

5. The Principle of Presumption of Innocence

The Principle of Presumption of Innocence means that the accused shall not be considered guilty until his criminal conviction has become final and nonappealable. It does not prohibit, however, preventive detention of an accused or a defendant, as the criterion is not guilty but dangerousness.

Therefore, the prohibition of former or double jeopardy protects a defendant from being processed and imprisoned based upon a criminal record of charges brought in previous cases, whether adjudicated or not.

Concurrent with this principle is the right of the accused to remain silent. According to art. 6, V connected with art. 186 CPP, the accused has the right to remain silent and to refuse to answer the questions directed at him. Nonetheless, his silence can be interpreted against him. Moreover, in accordance with art. 187, sole paragraph, CPP, the burden of proof with respect to the facts established by the defendant's silence is then placed upon the defendant, which is, of course, contrary to the Principle of Presumption of Innocence.

V. Further Important Principles or Guarantees

1. The Duty to Justification of Sentences

Beyond these basic guarantees from art. 5, the Brazilian Constitution incorporates some others, like art. 93, IX, which imposes the duty on the judge to justify his sentences. This guarantee seeks to avoid decisions based upon the mere subjective reasoning of official judges.

The jury may decide based upon the mere subjective reasoning of the jurors, because of the jury's sovereignty and the goal of achieving a trial by one's peer, independent of a technical legal interpretation of facts and of law.

Supporters of the institution of the jury argue that the jury does not represent a risk of wrongful or poorly reasoned decisions, because the trial judge has the option of not charging the trial jury or of acquitting the accused summarily.⁽⁷⁾

The opponents of the institution of the jury, on the other hand, argue that the jury's decisions are based on sentimental, unreasonable and unlawful motives.⁽⁸⁾ Strongly against the institution of the jury is José Frederico Marques, who dedicated an entire book in his unsuccessful crusade.⁽⁹⁾

The necessity for the judge to justify his decisions or sentences allows the judge to assess the probitive value of the evidence in making his decision. The judge, however, is bound by the evidence in the record in reaching his decision.

In the federal court system of the United States of America, there is no legal duty to justify sentences, however judges used to justify them sua sponte. According to the Uniform Sentencing Act introduced in 1984 by Congress (US Sentencing Commission), judges are only discharged from applying the strict uniform sentencing framework if they ennunciate a reasonable justification for the exception.⁽¹⁰⁾

Brazilian law sets some limits to the discrectionary power of the judge. Article 68 CP, after fixing the basic penalty, requires the judge to consider attenuating or aggravating circumstances, with the option of shortening⁽¹¹⁾ or lengthening the prescribed sentence.

Beyond the Constitution, arts. 252 and 254 of the CPP guarantee the impartiality of the judge.

If the decision was handed down by a judge who was biased or acted under improper influence, the decision can be challenged by an action for writ of habeas corpus or by a similar type of rescissionary action. In a case in which the trial is conducted by a biased judge, the improper judge has the opportunity to acknowledge his own biases or prejudices and can voluntarily recuse himself from the trial. Either party can also object to the sitting judge and move for recusal.

2. The Guarantee of Res Judicata

The guarantee of Res Judicata, one of the foremost guarantees of the Brazilian Constitution means that a final judgement rendered by a court of competent jurisdiction on the merits is conclusive as to the right of the parties and their assigns, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. To be applicable, however, Res Judicata requires identity in the subject matter of the suit, identity of causes of action and issues, identity of persons and parties to the action, and equality of persons for or against whom the claim is made. A subsequent change does not affect Res Judicata. Nevertheless, Res Judicata does not withstand a change to the Constitution, because the change or amendment of the Constitution establishes a new juridical structure that is capable of suppressing or enhancing former guarantees.

If offended, Res Judicata can be restored through a writ of habeas corpus and the consequent annullment of the offensive proceeding. Res Judicata, however, is susceptible to an exception for the benefit of the convict, whom the law provides with the right to a retrial, that seeks to call the court's attention any error, omission or oversight at the original trial. This right of appeal is not subject to the statute of limitations and may be used as well by the heirs of the convict in order to rehabilitate the latter's innocence.

VI. Restrictions of Liberty

1. Preventive Detention

Unlike the CPP in its previous form, whereby mandatory preventive detention could be ordered upon receipt of an indictment, based only upon the gravity of the crime, since Law No.5, 349 of 1967, preventive detention may be ordered only by a judge if proof of necessity exists. Although the judge may order preventive detention inaudita pars, a hearing in the absence of the suspect or defendant, the judge's decision must be justified in writing, otherwise the decision is null and the detainee can utilize the remedy of habeas corpus.⁽¹²⁾

Preventive detention serves several purposes such as the preservation of public order, the convenient discovery of evidence and the consistent application of the criminal law.

The prima facie proof of the commission of a crime and who committed it authorizes the preventive detention of the accused, which may occur both during the police investigation or after the criminal proceeding has been formally initiated.

The requirement that the seriousness of the crime be taken into account means that for an order of preventive detention to be issued, the detainee must be accused of the commission of a wilful crime punishable by incarceration. If a crime is punishable by detention, suspects or defendants may be preventively arrested based upon the fact that they are vagrants, there is doubt as to their identity or they are repeat offenders.

2. Arrest in Flagrante Delicto

Arrest in Flagrante Delicto is expressly permitted by the Constitution. Currently the Constitution requires that the purpose of the arrest be to avoid arbitrary violence against the individual. In this circumstance, the detainee is assured that he will have the assistance of counsel and the assistance of his family. In addition, there is a duty imposed upon the police to communicate immediately to the judge the existence of any arrest. The judge is then directed to immediately release those illegaly arrested.

A true flagrante delicto occurs when someone who is in the process of committing a criminal infraction is arrested. All citizens are authorized and the police has an indeclinable duty to arrest the lawbreaker.

A fictious flagrante delicto happens when someone is arrested who has just committed such an offence and has been pursued in circumstances in which one can presume that the crime was committed by the detainee. In addition, one who is found soon thereafter with instruments, weapons, objects or suspicious documents also falls into this category.

3. The Limits

The period for provisional arrest is not limited explicitely by law. As has already been seen, the law only provides for the preconditions in which the provisional arrest can be ordered, i.e. the seriousness of the crime. Therefore, the law provides two kinds of time limits for most criminal procedures: a normal time limit and a shorter one in circumstances when the accused is provisionally detained. So, for instance, the police investigation must end within 10-30 days, the indictment must be filed within 5-15 days and the prosecution and defence witnesses must be heard within 20-40 days, respectively for provisionally detained and non-provisionally detained defendants.

Correct procedure, followed by most courts, requires that the time limits be separately counted. There is an illegal constraint upon the accused whenever any one of the limits has been exceeded. In spite of this, some courts have held that there is illegality only if the total period of detention exceeds 81 days, that being the sum of all periods until the proceeding's end.

4. Enforcement

Reclusion, detention and simple imprisonment are the three types of imprisonment under Brazilian penal legislation. Beyond that and fines, there are also three other kinds of sanctions that are applicable to the restriction of rights: rendering community service, temporary interdiction of rights and weekend limitations.

The General Part of the Penal Code imposes fines in the form of fine-days, each of which corresponds to what the convicted person earns in a day. The fine must be payed within a ten-day period, otherwise it will be taken on by the Public Ministry, whereby the judgement of conviction becomes a lien enforceable by law. If a solvent convict does not pay the fine or prevents execution of it, the fine can be converted into detention. Each fine-day will be counted as one day of prison, up to the maximum of one year.

Depending upon the nature and duration of the imprisonment and the qualities of the sentenced person, he may begin to serve his punishment under a closed, semi-open or open system. He can be subjected to progression, during that time, which means transfer to a less rigorous system. For those who are serving the sentence in a closed or semi-open system, there is the possibility to redeem, through labour, part of the time that remains to be served. This occurs at the rate of one day of sentence for every three days worked.

If the convict has already served more than one-forth of his sentence and his background and personality are suitable, the sanction of prison in an open system may even be converted into a sanction that restricts rights, but not deprives liberty. Nevertheless the opposite fashion is possible as well: sanctions that merely restrict rights or impose penalties or fines can be converted into deprivation of liberty. For prisoners who become mentally ill, the law determines that their penalty of deprivation of liberty be replaced by security measures.

A defendant sentenced to prison for at least two years may be conditionally released on parole since specific requirements have been satisfied. Even though at liberty, as a result of the suspension of the sanction (a legal benefit similar to the French and Belgian sursis), the parole can be revoked if the parolee does not fulfill the obligations thereto.

VII. Drafted Innovations

A reform to Brazilian criminal procedure has been proposed by a preliminary draft of the Code of Criminal Procedure by Professor José Frederico Marques. Preparation of the new Federal Constitution of 1988 interrupted the review of the draft by congress. Now the review has become more necessary to adapt the criminal procedure system to the new Constitutional provisions. The principal changes refer to the form of proceeding and to provisional imprisonment.

Furthermore, the Draft Code contains suggestions of simplifications concerning the procedural system, with the adoption of more summary forms, mainly for less serious infractions and traffic violations. Also proposed is the institution of a first instance multi-judge judicial organ to hear appeals from decisions.

Dangerous delinquents who have committed crimes of robbery, extortion, kidnapping, rape, drug trafficking and, above all, those committed by bands and gangs, would be the target of strengthened preventive imprisonment. This would mean, as it already occurs in the Portuguese Code, that preventive detention would be viewed as the general rule for those charged with these crimes so that preventive detention does not necessarily take place if, notwithstanding the gravity of the offence in other kinds of crimes, there is reasonable evidence that the perpetrator is not dangerous.

As is well known, an arrest after the in flagrante delicto period may be maintained, in other countries, without notice to the judicial authorities for 24 hours (France), 48 hours (Italy and Portugal) or 72 hours (Spain). Former Brazilian Constitutions basically prohibited arrests after the in flagrante delicto period and allowed them exceptionally upon a written order of a "competent" authority, without defining what that was. Although the actual Constitution maintains the rule, it specifies that the written order must be issued by and supported by an opinion from a judicial authority.

As a remarkable innovation, the Draft Code created the conditional suspension of the proceeding, in order to avoid the imprisonment of defendants in less grave offences, and also to speed up the proceeding so that the matter can be solved practically at the time the charge is filed. This proceeding consists of permitting the judge, when he receives the accusation from the Public Ministry, after or even before interrogating the defendant, to suspend the proceeding for a period of from two to four years, and place the defendant under a system of probation. The preconditions thereto are: the imputed act must be punishable with a sanction not greater than imprisonment for one or two years; the defendant is not a repeat offender of a wilful crime; the culpability, prior record, social behavior and personality of the perpetrator, as well as the motives for and the circumstances surrounding the crime, indicate that probation is desirable.

The implementation of the probation depends upon the fulfillment of a final formal detail: the defendant will be asked, in the presence of counsel, if he accepts probation and its conditions. If he refuses, the criminal proceeding goes forward. If he accepts, the proceeding will be suspended and the defendant will be placed on probation. If the probation period ends without being revoked and the defendant has complied with probation conditions, there will be no judgement on the merits and the proceeding will be declared extinguished.

Other important innovations are:

a) the introduction of the adversary investigation before a judge receives the indictment, as do most of the modern criminal procedural statutes;

b) the possibility of a transaction within the proceeding by some crimes punishable with not more than two years of detention, if the defendant agrees to pay restitution to the victim;

c) the establishment of a minimum value of restitution to be payed to the victim, whereby the convicting sentence serves as an executable instrument untouched by the right of the victim to prove greater damage;

d) the possibility of the suspension of the proceeding and the suspension of the course of time concerning the statute of limitations, if the accused who was charged by edict does not appear before the court or appoints a defendant;

e) the possibility for the judge, in these cases, to anticipate the production of urgent evidence and to order the preventive detention of the accused;

f) the duty to be imposed on the judge to justify, by charging the defendant with a crime, the maintenance of the prior ordered measure of restriction of liberty and to decide on the convenience of ordering the preventive detention of the accused, by reviewing the legal requirements.⁽¹³⁾

Upon the suggestion of Professor Ada Pellegrini Grinover the conditional suspension of proceeding was incorporated into the Draft of a Model Code of Criminal Procedure For Latin America, and has just been adopted, under the title of "Temporary Suspension of Proceedings", by the recent Portuguese Code of Criminal Procedure.⁽¹⁴⁾

VIII. Conclusion

Of course, the limited extent of this paper does not permit an evaluation of the effectiveness of the Brazilian criminal law system. For this, a much lenthier discussion would be necessary. Nevertheless, I hope that this article has given an overview of the Brazilian criminal law system and of the Brazilian penal structure (the Judiciary and Enforcement).

As is general knowledge, Brazil has serious social problems, and consequently the country has to deal with a painful crisis of insecurity in its crowded megacities such as São Paulo and Rio de Janeiro. Such problems, however, are shared by almost all countries in the world, in larger or smaller dimensions. Two major issues important in this context are: 1) the control of delinquency, and, 2) respect for human rights. The task of controlling delinquency requires a courageous education policy and a reasonable employment policy rather than a repressive enforcement apparatus. The harmonization of the control of criminality with respect for human rights requires the establishment of a democratic regime and the practice of liberty, not just modern criminal legislation. Since 1985 Brazil is again a democratic country with freedom of the press, advances toward economic growth, and correspondent creation of employment, together with the draft innovations in the criminal procedure legislation, Brazil can make a fair trial a reality in the near future.

1. The death penalty has never been used in Brazil.

2. Henckel, Hans-Joachim, Rechtspflege und Rechtsgeltung, in: Briesenmeister, Dietrich et al. (organ.), Brasilien Heute,1994, p. 207-213.

3. Vicente Greco Filho, Tutela Penal das Liberdades, 1989, p. 111.

4. Id., p. 112-113.

5. Cruz, José Raimundo Gomes da, Estudos Sobre o Processo e a Constituição de 1988, 1993, p. 165.

6. Bicudo, Hélio, Direitos Civis no Brasil, Existem?, 1982, p. 88.

7. In this sense Greco Filho (note 3), p. 115.

8. Luis Bispo, Direito Constitucional Brasileiro, 1981, apud Lilli H. Löbsack-füllgraf, Verfassung und Alltag - Verfassung, Menschenrechte und Verfassungswirklichkeit in Brasilien, 1985, p. 104.

9. See A Instituição do Júri, 1963.

10. José Raimundo da Cruz (note 5), pp. 328-330.

11. Book I of the new French Criminal Code, passed by the National Assembly on 13 October 1989, suppressed the notion of "circonstances atténuantes". Id., p. 329.

12. In 1977, 129,205 persons were illegally arrested in Rio de Janeiro and the same happened to 62,220 persons in São Paulo between January and April 1981. Only 4,062 illegally detained persons in Rio made use of habeas corpus. Löbsack-füllgraf (note 8), pp. 92, 93, 125.

13. See Salvio de Figueiredo Teixeira, A Reforma Processual Penal, in Revista dos Tribunais, v. 327, Jul-Sept 1994, pp. 304-306.

14. See Weber Martins Batista, An Overview of Brazilian Criminal Procedure, in: Jacob Dolinger, et. al. (organ.), A Panorama of Brazilian Law, 1992, pp. 207-232.