Decree No. 7648, Of 21 December 2011

Original Language Title: Decreto nº 7.648, de 21 de Dezembro de 2011

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DECREE N °- 7,648, DE December 21, 2011

Grants Christmas indulgence and commuting feathers, and gives other arrangements.

THE CHAIRWOMAN OF THE REPUBLIC, in the exercise of the private competence conferring you the art. 84, inciso XII, of the Constitution, in view of the manifestation of the National Council on Criminal and Penitentiary Policy, hosted by the Minister of State for Justice, and considering the tradition, on the occasion of the commemorative Christmas festivities, of grant indulgence to people convicted or subjected to safety measure and commute sentences of convicted persons,

D E C R E T A:

Art. 1º It is granted indulgence to people, nationals and foreign:

I-condemned the custodial penalty of not more than eight years, not replaced by restriction of rights or fine and not benefited from the conditional suspension of the penalty which, until December 25, 2011, has served a third of the penalty, if not repeat, or half, if repeat ;

II-sentenced to custodial punishment of more than eight years and not more than twelve years, by crime practiced without serious threat or violence the person who, until December 25, 2011, has served a third of the penalty, if not repeat offenders, or half, if repeat ;

III-sentenced to deprivation of freedom of more than eight years which, until December 25, 2011, have completed sixty years of age and served a third of the penalty, if not repeat offenders, or half, if repeat ;

IV-condemned the deprivation of freedom which, until December 25, 2011, have completed seventh years of age and served a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

V-condemned the deprivation of freedom that, until December 25, 2011, have complied with, uninterruptedly, fifteen years of the penalty, if not repeat, or twenty years, if reincidents ;

VI-sentenced to deprivation of freedom of more than eight years which, until December 25, 2011, have complied, in any regime, a third of the penalty, if not repeat, or half, if repeat offenders, and have child or daughter less than eighteen years or with disabilities who need their care ;

VII-sentenced to deprivation of freedom not exceeding twelve years, as long as they have already fulfilled two fifths of the penalty, if not repeat, or three-fifths, if repeat offenders and are serving time in the semi-open or open regime and have already enjoyed, until December 25, 2011, at the very least, of five temporary outputs provided for in the art. 122, combined with art. 124 of Law No. 7,210 of July 11, 1984-Penal Enforcement Act, or have been providing external work, at the minimum for twelve months in the three years recounted retroactively to December 25, 2011 ;

VIII-condemned the custodial penalty of not more than twelve years, as long as they already have served two fifths of the penalty, if not repeat, or three-fifths, if repeat offenders, are serving time in the semi-open or open regime and who have attended elementary school course, medium, including professionalizer, superior, or still of professional requalification, in the form of art. 126, of the Criminal Enforcement Act, at the minimum for twelve months in the three years recounted retroactively to December 25, 2011 ;

IX-condemned to the penalty of fine, albeit unquieted, regardless of the enforceable stage or judgment where you find yourself, cumulatively applied with deprivation penalty of freedom accomplished by December 25, 2011 ;

X-condensed:

a) with paraplegia, tetraplegia or blindness, provided that such conditions are not prior to practice of the offence and to be proven by official medical laude or, in the absence of this one, by doctor designated by the judgment of the execution ;

b) with paraplegia, tetraplegia or blindness, even though such conditions are prior to the practice of the delito and prove themselves by official medical laude or, in the absence of this, by doctor designated by the judgment of the execution, should it result in serious limitation of activity and restriction of participation provided for in paragraph "c" ; or

c) cases of serious and permanent disease that present severe limitation of activity and restriction of participation or require continuous care that cannot be provided in the criminal establishment, provided that the hypothesis per official medical officer or, in the absence of this, by doctor designated by the judgment of the execution, is proven by the history of the execution, disease, if there is no opposition of the convicted person ;

XI-subjected to safety measure, regardless of the cessation of periculosity which, up to 25 of December 2011, have endured deprivation of freedom, internation or outpatient treatment for period equal to or higher than the maximum of the penalty comprised of the criminal infringement corresponding to the conduct practiced or, in the cases of substitution provided for in the art. 183 of the Criminal Enforcement Act, per period equal to the time of conviction ;

XII-sentenced to deprivation of freedom, provided that it is replaced with a restrictive penalty of law, in the form of the art. 44 of Decree-Law No. 2,848 of December 7, 1940-Criminal Code, or still benefited from the conditional suspension of the penalty, which they have complied with, albeit by conversion, deprived of freedom, until December 25, 2011, a quarter of the penalty, if not repeat offenders, or a third, if reincidents ;

XIII-condemned the custodial penalty of freedom under the open regime or replaced with penalty not freedom deprivation in the form of art. 44 of the Criminal Code, or still benefited from the conditional suspension of the penalty, which have served, provisionally arrested, until December 25, 2011, a sixth of the penalty, if not repeat offenders, or a fifth, if repeat offenders ;

XIV-condemned the deprivation penalty of freedom, who are serving time in open regime, or in conditional bookings, whose remaining sentences, on December 25, 2011, are no longer than eight years, if not repeat, and six years, if repeat offenders, provided they have served a quarter of the penalty, if not repeat, or a third if repeat offenders ; and

XV-convicted of crime against the estate, committed without grave threat or violence to person, provided that they have served a sixth of the penalty, if not repeat, or a quarter, if reincidents, and repaired the damage until December 25, 2011, unless proven economic inability to do so.

Single Paragraph. The pardon that it takes care of this Decree does not extend to the ancillary penalties provided for in Decree-Law No. 1,001 of October 21, 1969-Military Criminal Code, and the effects of condemnation.

Art. 2º The persons sentenced to deprivation of freedom, not benefited from the conditional suspension of the penalty which, until December 25, 2011, have served a quarter of the penalty, if not repeat, or a third, if repeat, and do not fulfil the requirements of this Decree to receive pardon, will have commuted the remaining penalty of a quarter, if not repeat, and of a fifth, if repeat, ainjured on December 25, 2011.

§ 1º The calculation will be made on the period of penalty already served up to December 25, 2011, if the period of penalty already fulfilled, discounted the previous commutes, is superior to the remainder.

§ 2º The person graced by previous commute will have their benefits calculated over the remainder of the penalty or over the period of penalty already served, pursuant to the caput and § 1º, with no need for new time requirement and without prejudice to the intended remand on art. 126 of the Penal Enforcement Act.

Art. 3º In the concession of the pardon or commuting it should, for the purposes of the completion of the temporal requirement, be computed the detraction of which it treats art. 42 of the Criminal Code and, when it is the case, the art. 67 of the Military Penal Code, without prejudice to the planned remand at the art. 126 of the Penal Enforcement Act.

Single Paragraph. The application of sanction for a serious lack of disciplinary action, provided for in the Criminal Enforcement Act, does not interrupt the counting of the temporal lapse in order to obtain the benefits provided for in this Decree.

Art. 4º The granting of the benefits provided for in this Decree is conditional on the absence of sanction application, homologated by the competent judgment, guaranteed the right to the adversarial and the broad defence, for lack of disciplinary action of a serious nature, provided for in the Penal Enforcement Act, committed in the twelve months of fulfilling the penalty, recounted retroactively to the publication of this Decree.

§ 1º The practice of serious misuse after the publication of this Decree or without due ascertainment pursuant to the caput does not prevent the attainment of the benefits provided in this Decree.

§ 2º The restrictions of this article do not apply to the hypotheses laid down in the incisos X and XI of the caput from art. 1º.

Art. 5º The benefits provided for in this Decree are cableable, yet:

I-the sentence has transitioned on trial for the prosecution, without prejudice to the appeal trial of defense in the upper instance ;

II-there is an appeal from the charge that does not target to majorate the amount of the penalty or the required conditions for the concession of the pardon and the commute ;

III-the doomed person is in conditional bookshop ; or

IV-the convicted person responds to another criminal case, even if it has by object one of the crimes predicted in art. 8º.

Art. 6º The default of the penalty of fine, cumulated with deprivation of liberty, does not prevent the granting of the indulgence or commuting.

Art. 7º The penalties corresponding to miscellar infractions shall add up, for the purpose of the indulgence and commuting, until December 25, 2011.

Single Paragraph. In the hypothesis of a contest with crime described in art. 8º, the convicted person shall not be entitled to the pardon or commutation of the penalty corresponding to the non-impeditive crime, while not complying, at a minimum, two thirds of the penalty, corresponding to the deterrent crime of the benefits.

Art. 8º The benefits provided for in this Decree do not reach the convicted persons:

I-for crime of torture, terrorism or illicit drug trafficking, in the terms of art's caput . 33, § 1 °, and of the arts. 34 a to 37 of Law No. 11,343 of August 23, 2006 ;

II-by heinous crime, practiced after the edition of the Laws n ° 8,072 of July 25, 1990 ; n ° 8,930, of September 6, 1994 ; paragraph 9,695 of August 20, 1998 ; No 11,464 of March 28, 2007 ; and n ° 12,015 of August 7, 2009, observed, still, subsequent amendments ; or

III-for crimes defined in the Military Penal Code that correspond to the offences provided for in the incisos I and II, except when set up situation of the use of drugs willing on art. 290 of the Military Criminal Code ;

§ 1º The restrictions of this article and the incisos I and II of the caput of the art. 1º do not apply to the hypotheses provided in the incisos IX, X and XI and XII of the caput of the art. 1º.

§ 2º The benefit predicted in the inciso VI of the caput of the art. 1 ° does not reach out to people convicted of crime practiced with violence or grave threat against child or daughter.

Art. 9 ° For the grant of the pardon and commuting of the penalties is sufficient the fulfillment of the requirements provided for in this Decree.

Art. 10. The authority that custodian the sentenced person and the organs of the execution provided for in the incisos III to VIII of the art's caput . 61 of the Criminal Enforcement Act shall forward, from office, to the judgment of the execution, including by digital means, the list of those who meet the requirements necessary for the granting of the benefits set out in this Decree.

§ 1º The Ouvidories of the Penitentiary System and the Order of Lawyers of Brazil will be able to refer to the judgment of the execution the list of treats the caput.

§ 2º The procedure provided for in the caput may start from office, the application of the interested, from whom the represent, or still, of his spouse or companion, relative or descending, of the Public Defensoria, the Order of Lawyers of Brazil, the Public Prosecutor's Office, the Penitentiary Council, the Community Council, the patronage, the administrative authority, the Ouvidoria of the Penitentiary System, the Internal Affairs of the Penitentiary System or the doctor who watches the convict who enquelled in the situations provided for in the article's incisos X and XI of the caput of the art. 1º.

§ 3º The judgment of the execution will make a decision after hearing, in that order, the Penitentiary Council, the Public ministry and defense, exceeded the first in the hypotheses contemplated in the incisos IX, X and XI of the caput of the art. 1º.

§ 4º The manifestation of the Penitentiary Council of which it treats § 3º should occur within the maximum period of fifteen days, counted from the date of receipt, in the protocol of the organ, photocopying or digital copy of the autos of the application for commuting or indulging, enjoying the latter of priority in the appreciation.

§ 5º Havendo request for conversion in demarches or view, the time limit set out in § 4º will be extended, impossibly, for a further fifteen days, and shall communicate the judgment.

Art. 11. The central bodies of the penitentiary administration will forward, immediately, copy of this Decree to the penitentiary units and will fill in the statistical framework constant of the Annex model, and must refer it, up to six months from the date of publication of this Decree, to the National Penitentiary Department of the Ministry of Justice.

§ 1 The National Penitentiary Department will keep published, on its portal of the world wide network of computers, statistical framework, discriminated by gender and federative unit, containing the information on the quantity of people favored by this Decree.

§ 2 The fulfilment of the provisions of the caput will be scrutinized by the National Policy Board Criminal and Penitentiary and the National Penitentiary Department, and verified in the opportunities for inspection or study of lastread projects in resources from the National Penitentiary Fund-FUNPEN.

Art. 12. This Decree shall enter into force on the date of its publication.

Brasilia, December 21, 2011 ; 190º of the Independence and 123º of the Republic.

DILMA ROUSSEFF

Jose Eduardo Cardozo

ANNEX