DECREE NO 7,873, DE December 26, 2012

Grants nataline indulgence and feather commuting, and gives other arrangements.

THE CHAIRWOMAN OF THE REPUBLIC, in the exercise of the private competence conferring you the art. 84, caput, 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 commemorative festivities of Christmas, of granting indulgence to people convicted or subjected to safety measure and commuting sentences of convicted persons,

D E C R E T A:

Art. 1º It is given the collective pardon to people, nationals and foreign:

I-convicts the custodial penalty of not more than eight years, not replaced by restrictive rights or fine, and not benefited from the conditional suspension of the penalty which, until December 25, 2012, has complied with a third of the penalty, if not repeat, or half, if repeat offenders ;

II-sentenced to custodial punishment of more than eight years and not more than twelve years, for crime practiced without serious threat or violence to person, who, until December 25, 2012, have served a third of the penalty, if not reincidents, or half, if repeat ;

III-convicts the custodial sentence of more than eight years that, until December 25, 2012, have completed sixty years of age and served a third of the penalty, if not repeat, or half, if repeat offenders ;

IV-convicts the custodial penalty of freedom that, until December 25, 2012, have completed seventy years of age and served a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

V-convicts the custodial penalty of freedom that, until December 25, 2012, have, uninterrupted, fifteen years of the penalty, if not repeat, or twenty years, if repeat offenders ;

VI-convicts the custodial sentence of more than eight years who have child or child less than eighteen years or with disabilities who require their care and who, until December 25, 2012, have complied:

a) if non-repeat men, a third of the penalty, or half, if reincidents ; or

b) if non-repeat women, a quarter of the penalty, or a third, if reincidents.

VII-sentenced to deprivation of freedom not exceeding twelve years, provided that they have already served a third of the penalty, if not repeat, or half if repeat offenders are serving time in the semi-open or open regime and already have enjoyed, until December 25, 2012, at the very least, of five temporary exits provided for in art. 122, combined with art. 124, caput, of the Act No. 7,210, July 11, 1984-Criminal Enforcement Act, or have exercised external work, at the very least, for twelve months in the three years recounted retroactively to December 25, 2012 ;

VIII-sentenced to deprivation of freedom not exceeding twelve years, provided that they have already served a third of the penalty, if not repeat, or half, if repeat offenders, are serving time in the semi-open or open regime and have attended elementary school course, medium, inclusive professional, 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, 2012 ;

IX-condemned the penalty of fine, albeit unquipped, regardless of the enforceable or judgment stage in which it is found, applied cumulatively with deprivation penalty of freedom accomplished until December 25, 2012 ;

X-condensed:

a) with paraplegia, tetraplegia or blindness, provided that 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, by doctor designated by the judgment of the execution ;

b) with paraplegia, tetraplegia or blindness, 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 serious limitation of activity and restriction of participation provided for in paragraph " ; 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 is proven by laude officer 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 ;

XI-submitted to the security measure, which, until December 25, 2012, regardless of the cessation of periculosity, have endued deprivation of freedom, internation or outpatient treatment for period equal to or higher than maximum of the penalty comprised of the criminal offence corresponding to the conduct practiced or, in the cases of substitution provided for in art. 183 of the Criminal Enforcement Act, per period equal to the time of conviction ;

XII-condemned the custodial penalty of freedom, provided that it replaced with a restrictive penalty of rights, 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, in any form, have complied, until December 25, 2012, a quarter of the penalty, if not repeat, or a third, if repeat offenders ;

XIII-convicts the custodial penalty of freedom under the open regime or replaced by restrictive penalty of rights, 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, 2012, a sixth of the penalty, if not repeat offenders, or a fifth, if repeat offenders ;

XIV-sentenced to deprivation of liberty, who are serving time in open rule or in conditional bookings, whose remaining sentences, on December 25, 2012, are not greater than eight years, if not repeat, and the six years, if repeat, as long as they have served a quarter of the penalty, if not repeat offenders, or a third, if repeat offenders ;

XV-convicted of felony against heritage, committed without grave threat or violence to the person, provided they have served a sixth of the penalty, if not repeat, or a quarter, if repeat, and repaired the damage by December 25, 2012, saved proven economic inability to reap-lo; or

XVI-sentenced to deprivation of freedom of more than eighteen months and not more than four years, for crimes against estate, committed without serious threat or violence to the person, with injury to the offending in estimated non-superior value at a minimum wage, provided they have, until December 25, 2012, served three months of deprivation of freedom and voucher for the deposit in judgment of the value corresponding to the injury caused to the victim, save proven economic inability to deposit it.

§ 1º 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 Penal Code, and the effects of the conviction.

§ 2º The indulgent predicted in the inciso VI of the caput does not reach people convicted of crime practiced with violence or grave threat against son or daughter.

Art. 2º People sentenced to deprivation of liberty, not benefited from the conditional suspension of the penalty, even if replaced with restrictive penalty of rights, in the form of art. 44 of the Criminal Code, which, until December 25, 2012, has served a quarter of the penalty, if not repeat offenders, or a third, if repeat offenders, and do not fulfil the requirements of this Decree to receive pardon, will have commuted the remaining penalty of a room, if not repeat offenders, and of a fifth, if repeat, ainjured on December 25, 2012.

§ 1º The calculation will be made on the period of penalty already served up to December 25, 2012, if the period of penalty already fulfilled, discounted the previous commutes, is superior to the remainder.

§ 2º The person who had the penalty previously commuted will have the new commute calculated on the remnant of the penalty or over the period of penalty already served, pursuant to the caput and § 1º, with no need for new temporal requirement and without prejudice to the intended remand in art. 126 of the Penal Enforcement Act.

Art. 3º In the declaration of the pardon or the commuting of feathers 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 disciplinary failure of a serious nature, provided for in the Criminal Enforcement Act, does not interrupt the counting of the temporal lapse to obtain the indulge or commuting of penalties provided for in this Decree.

Art. 4º The declaration of the pardon and the commuting of penalties provided for in this Decree is conditional on the absence of sanction application, homologated by the judgment competent, in hearing of justification, guaranteed the right to the adversarial and the broad for a disciplinary lack of a serious nature, provided for in the Criminal Enforcement Act, committed in the twelve months of fulfilling the penalty, counted retroactively to the date of 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 obtaining of the indulgence or commuting of penalties provided for in this Decree.

§ 2º The restrictions of this article do not apply to the hypotheses provided in the art's X and XI incisos of the caput . 1º.

Art. 5º The pardon and the commuting of feathers that it treats this Decree are cableable, yet:

I-the sentence has passed on trial for the prosecution, without prejudice to the defence's appeal judgment in the upper instance ;

II-there is an appeal of the prosecution that does not target to majorate the amount of the penalty or the conditions required for the declaration of the pardon or the commuting of feathers ;

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 provided for in art. 8º.

Art. 6º The pardon or commutation of the custodial penalty of freedom or restriction of rights achieves the penalty of fine applied cumulatively.

Single Paragraph. The default of the penalty of a cumulated fine with custodial penalty of freedom or restriction of rights does not prevent the declaration of the pardon or commutation of penalties.

Art. 7º The penalties corresponding to miscellar infractions shall add up, for the purpose of the indulgence and the commuting of feathers, until December 25, 2012.

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

Art. 8th The willing in this Decree does not reach the people convicted of:

I-crime of torture or terrorism ;

II-crime of illicit drug trafficking, in the terms of the caput and

§ 1º of the art. 33 and of the arts. 34 a to 37 of the Act No 11,343 of August 23, 2006 ;

III-crime heinous, practiced after the publication of Laws No 8,072 of July 25, 1990 ; No 8,930, September 6, 1994 ; No 9,695, August 20, 1998 ; No 11,464, March 28, 2007 ; and No 12,015 of August 7, 2009, observed, still, the later changes ; or

IV-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 Penal Code.

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

Art. 9º For the declaration of the pardon and commuting of the penalties is sufficient the fulfillment of the requirements laid down 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 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 necessary requirements for the declaration of the pardon and the commutation of penalties provided for in this Decree.

§ 1º The penitentiary system ouglers and the Order of Lawyers of Brazil will be able to refer to the execution the list of treats the caput.

§ 2º The procedure provided for in the caput may start from office or at the request of the person concerned, from whom the represent, or still, of his spouse or companion, relative or descender, of the Public Defensoria, of the Order of the Lawyers for 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, the Internal Affairs of the Penitentiary System or the doctor who watches the condemned to enquil in the situations provided for in the X and XI incisos of the caput of the art. 1º.

§ 3º The judgment of the execution will make a decision after hearing the Penitentiary Council, the Public Prosecutor's Office and the defence, exceeded the first in the hypotheses contemplated in the incisos IX, X and XI of the art's caput . 1º. § 4º The demonstration of the Penitentiary Council is to occur within 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 of pity or indulging, enjoying this last of priority in appreciation.

§ 5º Fishing the period provided for in § 4º, with or without the manifestation of the Penitentiary Council, the judgment of the execution will determine the views of the autos to the Public Prosecutor's Office and then to the defence, to, at the end, make a decision.

§ 6º The deadlines for the demonstration by the Public Prosecutor and Defence Ministry will be five days respectively.

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 shall refer it to the National Penitentiary Department of the Ministry of Justice within six months, counted from the date of publication of this Decree.

§ 1º The National Penitentiary Department will keep published, on its Internet portal, 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 Criminal and Penitential Policy Board and the National Penitentiary Department of the Ministry of Justice, and verified in the opportunities of 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 26, 2012 ; 191º of Independence and 124º of the Republic.

DILMA ROUSSEFF

Jose Eduardo Cardozo