Supreme Court denies open prison regime to former senator Luiz Estevão

Conjur - Former Senator Luiz Estevão de Oliveira Neto had his Habeas Corpus request unanimously denied by the First Panel of the Supreme Federal Court during the session this Tuesday (February 18). He requested the granting of the order so that he could begin serving his sentence for falsifying a public document under an open regime.

The defense argued that there was unlawful constraint due to the imposition of a semi-open regime for the beginning of the three-year and six-month prison sentence. The lawyers claimed that their client should benefit from the initial open regime, as the necessary requirements were met. With the filing of the habeas corpus petition to the Supreme Federal Court (STF), the lawyers also intended to ensure Luiz Estevão's right to have his prison sentence replaced by a restrictive measure.

They argued that there is no justification for the more severe prison regime and the denial of sentence substitution, since "the ordinary regime for serving a sentence provided for by law — for a non-recidivist convict with a sentence of less than four years — is the open regime." Therefore, the defense questioned a ruling by the Superior Court of Justice which, when judging an appeal against a decision by the Federal Regional Court of the 3rd Region, upheld the semi-open regime for the commencement of the sentence.

The rapporteur for the case, Minister Dias Toffoli, voted to deny the request. At the beginning of his vote, he read an excerpt from the TRF-3 decision, according to which the rule contained in article 33, paragraph 2, of the Penal Code is not mandatory, and it is up to the judge to examine the legal provisions together so that the Constitution is complied with in relation to the individualization of the sentence. The provision stipulates that the sentence be served from the beginning in an open regime in the case of a non-recidivist convict whose sentence is equal to or less than four years.

According to the minister of the TRF-3 (Regional Federal Court of the 3rd Region), "the failure to meet the subjective requirements, coupled with the defendant's total disregard for the Justice system, as well as the fearless and audacious manner in which he sought to deceive the court, reveals an impossibility, insufficiency, and social inadequacy for replacing the custodial sentence with a restrictive measure of rights."

In his vote, Justice Dias Toffoli concluded that the prohibition against substituting imprisonment and the imposition of a more severe regime were based on "subjective conditions that were negatively assessed, such as culpability, social conduct, personality, and the motives for the crime." According to the Justice, the Supreme Court's understanding is that the determination of the regime does not follow mathematical criteria.

"In short, it is not the quantity of favorable or unfavorable circumstances that determines the regime to be applied, since there are circumstances that are preponderant over the others," he stated. He considered culpability to be a primary circumstance in determining the regime for serving the sentence, as it serves as a "thermometer of the intensity of criminal intent."

"In light of this understanding, I say that there is no doubt that the presence of unfavorable subjective conditions can authorize a more severe regime, provided that it is linked to concrete and individualized elements, capable of demonstrating the need for greater rigor in the measure," the minister stated. His vote to deny the request was unanimous. With information from the STF Press Office.