Decree No. 7420, December 31 2010

Original Language Title: Decreto nº 7.420, de 31 de Dezembro de 2010

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DECREE NO 7,420, DE December 31, 2010.

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

THE PRESIDENT OF THE REPUBLIC, in the exercise of the custodial 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 persons convicted or subjected to the security measure and commute sentences to the sentenced persons, who comply with the requirements expressly provided for in this Decree,

DECRETA:

Art. 1o It is granted indulgence to people:

I-condemned to 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, 2010, has complied with a third of the penalty, if not repeat, or half, if repeat offenders ;

II-condemned to the custodial penalty of more than eight years and not more than twelve years, no replaced by restriction of rights or fine and not benefited from the conditional suspension of the penalty, by criminal offence practiced without violence or serious threat, which, until December 25, 2010, have served a third of the penalty, if not repeat, or half, if reincidents ;

III-condemned to the custodial penalty of more than eight years which, until December 25, 2010, have completed sixty years of age and served a third of the penalty, if not repeat offenders, or half, if repeat ;

IV-condemned to the deprivation of freedom which, until December 25, 2010, have completed seventh years of age and served a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

V-condemned to the deprivation sentence of freedom which, until December 25, 2010, have complied with, uninterruptedly, fifteen years of the penalty, if not repeat, or twenty years, if reincidents ;

VI-condemned to the custodial penalty of more than eight years which, until December 25, 2010, have complied, in closed or semi-open regime, one-third of the penalty, if not repeat, or half, if repeat offenders, and have child or daughter less than eighteen or with mental, physical, visual or hearing impairment, whose care of them require ;

VII-sentenced to custodial punishment of not more than twelve years, as long as they have already met two fifths of the penalty, if not repeat, or three-fifths, if repeat offenders, find themselves serving time in the semi-open or open regime and have already enjoyed, until December 25, 2010, at the very least, of five temporary outputs provided for in the art. 122, combined with art. 124, caput, of Law No. 7,210 of July 11, 1984, or have been providing external work, at the minimum for twelve months in the three years recited retroactively to that date ;

VIII-condemned to the penalty of fine, albeit unquieted, regardless of the enforceable stage or judgment in which it is found, applied cumulatively with deprivation penalty of freedom accomplished until December 25, 2010 ;

IX-condensed:

a) paraplegic, tetraplegic or total blindness carrier, provided such conditions are not prior to the 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) paraplegic, tetraplegic or total blindness carriers, even if such conditions are prior to the practice of the offence and proven by official medical laude or, in the absence of this one, by doctor designated by the judgment of the execution, should it result in the severe incapacity provided for in point?c? of this inciso ;

c) cases of serious and permanent disease that present severe incapacity, 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 laude or, in the absence of this, by doctor designated by the judgment of the execution, constando the history of the disease, in case there is no opposition from the convicted person, maintained the right of assistance under the art. 196 of the Constitution ;

X-submitted to the security measure, regardless of the cessation of the periculosity which, up to 25 million december 2010, have endured deprivation of freedom, internation or outpatient treatment for period equal to or higher than the maximum penalty comprised of the criminal offence corresponding to the conduct practiced, or, in the cases of substitution provided for in the art. 183 of Law No. 7,210, 1984, per period equal to time of conviction, upheld the right of assistance under the art. 196 of the Constitution ;

XI-condemned to the deprivation of freedom, provided that it replaced with non-deprivation of freedom, in the form of 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 fulfilled, albeit by conversion, deprived of freedom, until December 25, 2010, a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

XII-condemned to the deprivation of freedom under the open regime, which have fulfilled, arrested provisionally, by December 25, 2010, a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

XIII-condemned to the deprivation penalty of freedom, who are serving time in open regime, whose remaining sentences, on December 25, 2010, are no longer than six years, if not repeat, and four years if repeat offenders, as long as they have served a quarter of the penalty, if not repeat, or a third, if repeat.

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 the conviction.

Art. 2o People sentenced to deprivation of freedom, not benefited from the conditional suspension of the penalty that, until December 25, 2010, have served a quarter of the penalty, if not repeat, or a third, if repeat offenders, and not fulfill the requirements of this Decree to receive pardon, will have commuted the remaining penalty of one room, if not repeat, and of a fifth, if repeat, ainjured on the above-mentioned date.

§ 1o If the period of penalty already fulfilled, discounted the previous commutations, is superior to the remainder, the calculation will be made over the period of penalty already served up to December 25, 2010.

§ 2the The person graced by previous commute will have their calculated benefit on the remainder of the penalty or over the period of penalty already served, pursuant to caput and § 1the of this article, with no need for new temporal requirement and without prejudice to the intended remand at art. 126 of Law No. 7,210, 1984.

Art. 3the 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 the 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 Law No. 7,210, 1984.

Single Paragraph. The application of sanction for disciplinary failure of a serious nature, provided for in Law No. 7,210 of 1984, 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 adversarial and the broad defence, for lack of disciplinary action of a serious nature, provided for in Law No. 7,210 of 1984, committed in the last twelve months of fulfilling the penalty, recounted retroactively to the publication of this Decree.

§ 1o The practice of serious mishap after the publication of this Decree or without proper proofing, under the terms of the caput, does not prevent the attainment of the benefits provided for in this Decree.

§ 2o The restrictions of this article do not apply to the hypotheses foreseen in the incisos IX and X of the art. 1the of this Decree.

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. 8the of this Decree.

Art. 6o The default of the penalty of fine, cumulated with deprivation of liberty, does not prevent the grant of the pardon or commute.

Art. 7o The penalties corresponding to miscellar infractions must add up to the effect of the indulgence and commuting.

Single Paragraph. In the hypothesis of having contest with infraction described in art. 8the, 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 the very least, two thirds of the penalty, corresponding to the deterrent crime of the benefits (art. 76 of the Criminal Code).

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

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

II-by heinous crime, practiced after the edition of the Leis nos 8,072, July 25, 1990 ; 8,930, of September 6, 1994 ; 9,695, of August 20, 1998 ; 11,464, of March 28, 2007 ; and 12,015, of August 7, 2009, observed, still, subsequent amendments ;

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 said Military Criminal Code ;

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

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

Art. 9o 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. 61 of Law No. 7,210 of 1984 shall refer, from office, to the judgment of the execution to the list of those who meet the requirements necessary for the granting of the benefits set out in this Decree.

§ 1o The procedure provided for in caput can start from office, on application of the person concerned, of whom the represent, 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 Council of the Community, the patronage, the administrative authority, the Ouvidoria of the Penitentiary System, Internal Affairs of the Penitentiary System or the doctor who watches the convict who enquelled in the situations provided for in the incisos IX and X of the art. 1o.

§ 2o The judgment of the execution will make a decision after hearing the Public Prosecutor's Office, the defence and Penitentiary Council, exceeded this in the hypotheses contemplated in the incisos VIII, IX and X of the art. 1o.

§ 3o The manifestation of the Penitentiary Council that it treats § 2o should occur within a maximum of fifteen days, counted from the date of receipt, by the rapporteur, of the procedure of the execution incident which deals with the commute of sentence or indulgence, enjoying the latter of priority in the appreciation.

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.

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

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

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

Brasilia, December 31, 2010 ; 189o of Independence and 122the of the Republic.

LUIZ INACIO LULA DA SILVA

Luiz Paulo Teles Ferreira Barreto