Regarding the interruption of prescription and the Penitentiary State

As widely reported, the plenary session of the Supreme Federal Court, on April 24th, concluded the virtual trial of habeas corpus In case no. 176.473, filed by the Public Defender's Office of the Union, a majority was formed to consider that the judgment confirming the conviction constitutes an interruption of the statute of limitations, pursuant to article 117, IV, of the Penal Code.

Several ministers were overruled, including Ricardo Lewandowski, who argued that this majority opinion "violates the fundamental right of the accused to be tried within a reasonable time."

First, the Supreme Court's ruling attributes a meaning to the aforementioned article 117, IV, that it does not possess. As stated in that provision, the statute of limitations is interrupted. by the publication of the appealable conviction sentence or judgment.Now, a judgment that confirms a conviction already handed down by the lower court in its sentence can be anything but a... conviction ruling, as stated in article 117, IV, of the Penal Code.

No, it's not the same thing, as it might seem. Considering the hypotheses of prescription of the punitive claim, set forth in items I to IV of article 117, all of them, without exception, constitute sequential repressive measures against the accused. It is as if, as it acts against the defendant, the state is rewarded with the right to have the time limit for exercising its right to punish restarted. Now, in the case of HC 176.473 The state did act, yes, but it did so by convicting the defendant in the sentence: the judgment that confirms it does not bring any substantial novelty. It would be different if the sentence were acquittal and the court, heeding an appeal from the prosecution, convicted. Then, yes, it would be a conviction ruling. 

Note that the same article 117 of the Penal Code mentions, as a cause for interruption of prescription (item III), the decision confirming the indictmentThis will also stem from a court ruling in an appeal in the strict sense. This clearly demonstrates that, when it so desired, the criminal legislator was very clear, unequivocally establishing a hypothesis for the interruption of the statute of limitations. Moreover, in the case of the confirmation of the indictment, a decision that concludes the preparatory procedure leading to the jury trial, this cause for interruption makes sense, given the very special particularities of this procedural rite, making the plenary stage the one truly capable of judging the defendant, since the nature of the crime and the constitutionally competent court have already been established.[2].

Nor should the interruption of the statute of limitations be justified by the judgment confirming the conviction with the argument that, ultimately, there was no inaction on the part of the state. The right to prescription, more than a penalty for the state, represents a guarantee for those entitled to a reasonable duration of the process, and in this regard, both diligence and negligence on the part of the state are irrelevant.

Furthermore, the Supreme Court's now-prevailing understanding has, in practice, the effect of discouraging appeals by the defense and also of endorsing the state's slowness in definitively judging criminal cases. However, paradoxically, the very reason for prescription is to inhibit state delay and thus prevent someone from remaining a considerable part of their life under the threat of punishment for something they are legitimately contesting. 

This is yet another facet, perhaps less visible, of punitive criminal law, an expression of the neoliberal worldview, which has even lost the humanism of classical liberal jurists, devotees of... punish in order to re-educateWhat gradually becomes important to the state and stealthily slips into the justice system is segregating the standard delinquentAs the neoliberal state abandons investments in social policies, it increases spending and bets on expanding the repressive apparatus: the welfare state turns into state-penitence[3]. 

[1] Doctor of Law and Foundations of Education. University professor. Public Prosecutor in São Paulo. Contact 

[2] This logic is not lost on a broad sector of jurisprudence, as demonstrated by a ruling of the Superior Court of Justice (STJ), published on June 04, 2019: “[...] The Penal Code provides, in each item (article 117, items II and III, of the Penal Code), that prescription is interrupted by the indictment and by the confirmatory decision of the indictment, evidencing the chosen caution in order to delimit the respective periods. Therefore, given the legislative technique adopted, it can be inferred that the legislator did not contemplate the confirmatory judgment as a new interrupting event for prescription, since he refrained from the same technique when providing for item IV of article 117 of the Penal Code” (RHC 109.952-SC).

[3] The observation and expressions are from Loïc Wacquant, taken from research done in the USA, and are now absolutely relevant in Brazil, in his book Punishing the Poor: The New Management of Poverty in the United States. Rio de Janeiro: Freitas Bastos, 2001.