Decree No. 5295, of 2 DECEMBER 2004 Grants conditional pardon, commutation and other matters.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, paragraph XII, of the Constitution, with a view to 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 Christmas pardon to convicted in position to earn it, providing conditions for the harmonious social integration, main objective of criminal sanction, D and C R E T A : Art. first is granted conditional clemency: I-to sentenced to custodial sentence not exceeding six years, not replaced by restrictive of rights or a fine and not benefited from the conditional suspension of sentence, which, until 25 December 2004, has served one-third of the sentence, if not repeat offender, or half, if a repeat offender;
II-to sentenced to custodial sentence of more than six years, until 25 December 2004, has completed 60 years of age and completed one-third of the sentence, if not repeat offender, or half, if a repeat offender;
III-the condemned to deprivation of freedom, until 25 December 2004, has performed, in closed or semi-open regime, without interruption, fifteen years, if not a repeat offender, or twenty years, if a repeat offender;
IV-to sentenced to custodial sentence exceeding six years, up to December 25, 2004 has fulfilled, in closed or semi-open regime, one-third of the sentence, if not repeat offender, or half, if a repeat offender, and mother of minor child of fourteen, of whose care her needs;
V-the convict who is serving a sentence in the semi-open regime and has already enjoyed at least five temporary outputs provided for in art. 122, item I, combined with the art. 124, caput, of law nº 7210 of 11 July 1984; or VI-the condemned: a paraplegic, quadriplegic or carrier) of total blindness, since such conditions are not earlier than practice Act proven by official medical report or, failing that, by two doctors, appointed by the Judgment of execution; or b) affected, cumulatively, of serious illness, permanent, showing severe disability, with severe activity limitation and participation restriction, requiring continuous care, proven by official medical report or, failing that, by two doctors appointed by the Judgment of the execution, in the history of the disease, provided there are no opposition benefited kept the right to assistance pursuant to art. 196 of the Constitution.
Sole paragraph. The pardon that looks after this Decree does not extend to ancillary penalties provided for in the Military Penal Code and effects of the conviction.
Art. 2 sentenced to custodial sentence, not replaced by restrictive of rights or a fine and not benefited from the conditional suspension of sentence, which, until 25 December 2004, has fulfilled a room, if not a repeat offender, or a third, if a repeat offender, and do not complete the requirements of this Decree to receive clemency, have commuted the penalty reminiscent of a room If not repeat offender, and a fifth, if measured in consecutive date mentioned above.
Sole paragraph. The award-winning by switching your benefit will be calculated earlier about the remainder of the sentence on 25 December 2004, subject to the discount effect without the necessity of new temporal requirement and without prejudice to the redemption provided for in art. 126 of law nº 7210, 1984.
Art. 3rd In granting the pardon or commutation must, for the purposes of payment of the temporal requirement, be computed detração contemplated in art. 42 of the Penal Code, and, if applicable, the art. 67 of the Military Penal Code, and without prejudice to the redemption provided for in art. 126 of law nº 7210, 1984.
Art. 4 the granting of pardon or commutation shall be subject to the verification of absence of serious misconduct in the last twelve months of compliance, established in the form of art. 59 et seq. of law No. 7210, 1984, and, in the case of military crime, the absence of lack discipline under disciplinary regulations, verified in the last twelve months of compliance, counted backwards to the publication of this Decree.
Art. 5 the benefits provided for in this Decree shall apply even if: i. the enforceable judgment has acquired the authority of a final decision for the prosecution, without prejudice to the trial the defence resource in higher instance; or II-there is no charge feature aimed at increasing the amount of the penalty or the conditions for granting the pardon and commutation.
Art. 6 the delinquencies of the fine penalty does not prevent the granting of pardon or commutation.
Art. 7 the penalties corresponding to various infractions should added for effect of pardon and commutation.
Sole paragraph. In the event of there being competition with infringement described in art. 8, the convicted will not be entitled to clemency or commutation as does not meet, in full, the penalty corresponding to the crime deterrent benefits (art. 76 of the Penal Code).
Art. 8th the benefits provided for in this Decree does not reach the doomed: 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 the law No. 8072 of 25 July 1990, subject to subsequent amendments;
III-for crimes defined in the criminal code that correspond to the events contemplated in items I and II of this article.
Sole paragraph. The restrictions of this article and paragraph 1 of art. 1 shall not apply to the events contemplated in item (VI) of that article.
Art. 9 the authority to guard the sentenced and the penitentiary Council will the Judgment of executing an indication of those which meet the requirements for the granting of the benefits provided for in this Decree, within 30 days of its publication.
(1) the procedure referred to in the caput of this article may be initiated ex officio, at the request of the person concerned, who represents it, to your spouse, relative or descendant, the public defender's Office, a public prosecutor, the penitentiary Council, the management authority and the doctor who watches the convict who fits in the situations provided for in item VI of the art. 1.
(2) the Judgment shall issue execution decision hearing the Prosecutor, the defence and the penitentiary Council, except in the case contemplated in this item VI of the art. 1.
Art. 10. Improve the pardon after twenty-four months from the date of dispatch of the term of art. 12, and the beneficiary, within that period, maintain good behaviour and not be indicted or prosecuted for a felony offense, except for penal infractions of lower offensive potential.
(1) if the beneficiary were to be prosecuted for a felony offense, practiced in the period referred to in the caput shall be deemed extended the period for the perfection of reprieve, until the final judgement of the process.
paragraph 2 shall not preclude the refinement of the pardon the onset of judgment of the resulting penalties accumulated rights or not restrictive with fine or conditional suspension of sentence.
Art. 11. Upon expiry of the period provided for in art. 10 and met the requirements of the benefit, the Judge, heard the penitentiary Council, the prosecution and the defense, shall declare the penalty involving deprivation of liberty.
Sole paragraph. The breach of the conditions contemplated in art. 10 makes void the conditional pardon, returning the beneficiary of the regime it was at the time of granting of liberty, deleted, for recalculation, the term noise within the limits of the same article.
Art. 12. the President of the penitentiary Council or authority responsible for the custody of the prisoner, after the sentence concessiva of accepted by the interested, will, in a solemn ceremony, to the conditions laid down by this Decree, placing him on probation, all tilling, in a proper book, term., a copy of which will be forwarded to the Judgment of Criminal Execution, indulging another beneficiary.
Art. 13. The Central penitentiary administration bodies shall complete the statistical table, in accordance with the Annex to this Decree, and shall forward it, until 31 March 2005, the National Penitentiary Department of the National Secretariat of Justice of the Ministry of Justice.
Sole paragraph. The provisions of this article shall be monitored by the National Council of Criminal and Penitentiary Policy and the National Penitentiary Department and checked in the inspection or study opportunities of projects backed by National Penitentiary Fund-FUNPEN.
Art. 14. This Decree shall enter into force on the date of its publication.
Brasília, 2 December 2004; 183 independence and 116 of the Republic.
LUIZ INACIO LULA DA SILVA Marcio Thomaz Bastos