Brazilian Supreme Court grants freedom to wife of PCC leader.

Fernando Porfírio_247 - The STF released this Thursday (29) the vote of minister Dias Toffoli that granted freedom to the wife of one of the PCC leaders in São Paulo. The 1st Panel of the Supreme Court determined the replacement of the preventive detention of Viviane dos Santos Pereira, partner of Emivaldo Silva Santos, with a restrictive sentence of liberty, provided for in the new law 12.403/2011.

According to the ruling, Viviane must appear in court periodically, is prohibited from frequenting certain places, and is prohibited from contacting individuals designated by the judge overseeing the case.

The partner of one of the PCC leaders, known as "BH," and accused of serving as a "messenger" for the organization, she was sentenced to 20 years in prison for the crimes of forming an armed gang, receiving stolen goods, and illegal possession of a restricted weapon, and was denied the right to appeal while free by the judge of first instance.

Before being convicted, Viviane obtained habeas corpus from the STJ (Superior Court of Justice). The higher court considered that there had been an excessive delay in the pronouncement of the sentence, and ordered the release of the defendant.

Some time later, the sentence was handed down, at which time the judge of first instance denied Viviane the right to appeal while at liberty. A new habeas corpus petition was filed with the Superior Court of Justice (STJ), but this time the court denied the request.

According to Justice Cármen Lúcia, the case's rapporteur, when convicting the defendant, the judge of the 1st Court of São Bernardo do Campo (SP) stated that it had been proven that she had an active role in the PCC, collaborating in the organization's contacts with the outside world.

With this argument, the judge denied her the right to appeal while free, to prevent her from committing the same crimes again.

The rapporteur stated that she understood the decision to keep the convicted woman in custody to be duly justified. She affirmed that she found no abuse of power or illegality in the challenged decision, and voted to deny the habeas corpus and maintain the patient's provisional detention to ensure public order. Cármen Lúcia was joined by Minister Luiz Fux.

Minister Dias Toffoli dissented from the rapporteur. In his vote, he emphasized that the denial of the right to appeal while at liberty was based on the fact that the defendant acted as an informant for the organization. In this regard, he recalled that the new Law on Precautionary Measures provides for the adoption of alternative procedures to pretrial detention.

In amending Article 319 of the CPP (Brazilian Code of Criminal Procedure), Toffoli revealed that the law provides alternatives such as periodic appearances in court, within the timeframe and under the conditions set by the judge, to report and justify activities; prohibition of access to or attendance at certain places when, due to circumstances related to the fact, the suspect or accused must remain away from these places to avoid the risk of new offenses; and prohibition of contact with a specific person when, due to circumstances related to the fact, the suspect or accused must remain away from that person.

The minister voted to grant the order, in part, so that the judge of first instance replaces pre-trial detention with the measures provided for in the new law.

Justice Marco Aurélio voted to grant the habeas corpus in full. According to him, since there is still no final conviction, the case constitutes a premature, hasty, and therefore premature execution of the sentence handed down by the court.

After a tie in the vote, with two votes against granting the habeas corpus and two in favor (one vote being for partial granting), the justices decided to deliver the judgment based on the average vote – that of Justice Dias Toffoli.