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Decree No. 5295, 2 December 2004

Original Language Title: Decreto nº 5.295, de 2 de Dezembro de 2004

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DECREE NO. 5,295, OF December 2, 2004

Conception of parole, commuting and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives it the art. 84, inciso XII, of the Constitution, in view of the manifestation of the National Council of Criminal and Penitentiary Policy, hosted by the Minister of State for Justice, and considering the tradition of granting, on the occasion of the commemorative festivities of the Christmas, forgiveness to the convict in conditions of deserving him, providing him with conditions for the harmonic social integration, goal higher of the penal sanction,

D E C R E T A:

Art. 1º Is granted pardon probation:

I-to the convict of the custodist of liberty not exceeding six years, not replaced by restrictive rights or fine and not benefited from the conditional suspension of the penalty, which, until December 25, 2004, has served a third of the penalty, if not recidivist, or half, if recidivist;

II-to the sentenced to the custodious sentence of freedom exceeding six years which, until December 25, 2004, has completed sixty years of age and served a third of the penalty, if not recidivist, or half, if recidivised;

III-to the doomed to the custodian of freedom which, until December 25, 2004, has complied, in a closed or semi-open regime, uninterruptedly, fifteen years of the penalty, if not recidivist, or twenty years, if recidivist;

IV-to the doomed to the custodist of freedom greater than six years which, until December 25, 2004, has complied, in a closed or semi-open regime, a third of the penalty, if not recidivist, or half, if recidivist, and mother of fourteen-year-old child, from whose care she requires;

V-to the convict who finds himself serving time in the semi-open regime and has already enjoyed, at the minimum, of five temporary outputs foreseen in the art. 122, inciso I, combined with the art. 124, caput, of Law No. 7,210, of July 11, 1984; or

VI-to the convict:

a) paraplegic, tetraplegic or bearer of total blindness, provided that such conditions are not prior to the practice of the act and proven by official medical laude or, in the absence of this, by two physicians, designated by the Judgment of Execution; or

b) acometained, cumulatively, of serious illness, permanent, presenting severe disability, with severe limitation of activity and restriction of participation, requiring continuous care, proven by official medical laureate or, in the absence of this one, by two doctors appointed by the Enforcement Judgment, constying the history of the disease, as long as there is no opposition from the benefited, held the right of assistance pursuant to art. 196 of the Constitution.

Single paragraph. The pardon of which takes care of this Decree does not extend to the ancillary penalties provided for in the Military Criminal Code and the effects of the conviction.

Art. 2º The convict of the deprivative sentence of liberty, not replaced by restrictive of rights or fine and not to benefit from the conditional suspension of the penalty, which, until December 25, 2004, has served a quarter of the penalty, if not recidivist, or one third, if recidivised, and does not fulfill the requirements of this Decree to receive pardon, will have commuted the remaining penalty of a fourth, if not recidivist, and of a fifth, if recidivist, awound on the above-mentioned date.

Single paragraph. The agraciated by previous commute will have its benefit calculated on the remnant of the penalty on December 25, 2004, observed the effective discount, with no need for new temporal requirement and without prejudice to the anticipated remittal in the art. 126 of Law No. 7,210, of 1984.

Art. 3º In the granting of the pardon or the commutation should, for the purposes of the integralization 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, and without prejudice to the planned remand in the art. 126 of Law No. 7,210, of 1984.

Art. 4º The granting of the pardon or commutation is contingent on the finding of non-existence of the practice of serious foul in the last twelve months of feather fulfillment, ascertained in the form of the art. 59 and following of Law No. 7,210, of 1984, and, in the case of military crime, of the nonexistence of the disciplinary lack provided for in the disciplinary regulations, verified in the last twelve months of penalty compliance, counted retroactively to the publication of this Decree.

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

I-the sentencing sentence has transitioned on trial to the prosecution, without prejudice to the appeal judgment of the defense in the higher instance; or

II-there is an appeal of the charge that does not aim to majorly amount to the amount of the penalty or the conditions required for granting the pardon and the commutation.

Art. 6º The default of the penalty penalty does not prevent the granting of the pardon or commutation.

Art. 7º The penalties corresponding to diverse infractions must add up to the effect of the indulgent and the commute.

Single paragraph. In the hypothesis of there being contest with infraction described in the art. 8º, the convict shall not be entitled to pardon or commutation while failing to comply, in full, the penalty corresponding to the impediment crime of the benefits (art. 76 of the Criminal Code).

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

I-for the crime of torture, terrorism, or illicit trafficking of narcotics and related drugs;

II-convicted of heinous crime, practiced after the edition of Law No. 8,072 of July 25, 1990, observed the later amendments;

III-for crimes defined in the Military Criminal Code that correspond to the predicted hypotheses in the incisos I and II of this article.

Single paragraph. The constraints of this article and the inciso I of art. 1º do not apply to the hypotheses provided for in the inciso VI of that same article.

Art. 9º The authority that custodians the convict and the Penitentiary Council shall forward to the Judgment of Execution the indication of those who satisfy the necessary requirements for the granting of the benefits provided for in this Decree, within thirty days, counted from its publication.

§ 1º The procedure provided for in the caput of this article will be able to start from office, the application of the person concerned, of whom the represent, of his spouse, relative or descendant, of Public Defensoria, the Public Prosecutor's Office, the Penitentiary Council, the administrative authority and the doctor who assists the convict who falls in the situations predicted in the inciso VI of the art. 1º.

§ 2º The Judgment of Execution will provide judgment by listening to the Public Prosecutor's Office, the defence and the Penitentiary Council, excepted this in the hypothesis contemplated in the inciso VI of the art. 1º.

Art. 10. You will perfect the indulgent after twenty-four months, from the expedition of the term of which you treat the art. 12, owing the beneficiary, at that time, to maintain good behavior and not be charged or prosecuted for felony felony, excepted the criminal infractions of minor offensive potential.

§ 1º If the beneficiary comes to be sued by felony felony, practiced in the forecast period in the caput, considers itself to be extended the deadline for the enhancement of the pardon, until the definitive trial of the case.

§ 2º Will not prevent the enhancement of the indulgence of supervenience of a sentencing decision from which to result in restrictive sentences of rights cumulated or not with a fine, or conditional suspension of the penalty.

Art. 11. The period provided for in the art has elapsed. 10 and complied with the requirements of the benefit, the Judge, heard the Penitentiary Council, the Public Prosecutor's Office and the defence, shall declare extinct the custodian of freedom.

Single paragraph. The defulfillment of the conditions of which it treats art. 10 makes it without effect the conditional pardon, returning the beneficiary to the scheme in which it was found to be in time for the granting of freedom, excluded, for new calculation of penalty, the fruity term in the limits of the same article.

Art. 12. The President of the Penitentiary Council or the authority responsible for the custody of the inmate, after the concessional sentence of the benefit accepted by the person concerned, shall draw his attention, in solemn ceremony, to the conditions laid down by this Decree, placing it at liberty, from everything washing, in self-book, circumstantial term, the copy of which will be remitted to the Judgment of Criminal Enforcement, by handing over another to the beneficiary.

Art. 13. The central bodies of the penitentiary administration will fill the statistical framework, in accordance with the model Annex to this Decree, and shall forward it, by March 31, 2005, to the National Penitentiary Department of the National Registry of Justice of the Ministry of Justice.

Single paragraph. Compliance with the provisions of this article will be scrutinized by the National Criminal and Penitentiary Policy Board and the National Penitentiary Department and verified in the opportunities for inspection or study of resource-backed projects of the National Penitentiary Fund-FUNPEN.

Art. 14. This Decree comes into effect on the date of its publication.

Brasilia, December 2, 2004; 183º of Independence and 116º of the Republic.

LUIZ INACIO LULA DA SILVA

Marcio Thomaz Bastos