There are crimes that do not warrant pretrial detention

The judgment of Criminal Action 470, the Mensalão case, by the Federal Supreme Court will, as soon as the winning and dissenting votes are published, have a new repercussion on Brazilian Punitive Law, to be gauged over a longer horizon. It is a matter of assessing the parameters of legality of the STF, as regards the principles of typicity and culpability of Criminal Law, in addition to the burden of proof and punitive due process.

The logic of the votes and the typology of the grounds will give rise to reflections on the STF as the supreme reference in the formation of the national normative system. Scholarly criticisms of the votes cast will be legitimate and will contribute to improving the system, since case law, including that of the Higher Courts, should be critically evaluated by the academic community, if only as a way of encouraging the improvement of institutions.

It is already known that, among the most relevant aspects, the weight of indications as a basis for convictions will give rise to sharp discussion in the legal community, in view of the votes that will be published, with repercussions on the understanding of the principle of the presumption of innocence. As I have not yet read the case file or the information gathered in the proceeding, nor the full text of the votes cast, I have no formed opinion on the parameters that will emerge from it or on the content of the criticisms that will be timely. Had there been time to follow all the votes on TV Justiça, perhaps it would be possible to give a solid opinion on the quality of the voting, but even so, it would be flawed for lack of reading the case file.

There is, however, a symptomatic aspect that draws attention and it seems to me that the STF and the Office of the Prosecutor General of the Republic are aligned with the most modern views on this subject: the defendants, all of them, answered criminal action 470 at liberty. What is observed is that in this Mensalão trial, regarded by the Rapporteur, by the Office of the Prosecutor General of the Republic and by many as emblematic as a new paradigm for the punitive system, since crimes such as active and passive corruption, money laundering, illegal currency evasion and criminal conspiracy were punished, all the defendants answered the proceeding at liberty , without even being subjected to precautionary measures alternative to imprisonment.

In this context, admitting that case law seeks to fix equal-treatment guidelines for those subject to the courts’ jurisdiction, what can be expected from other cases involving so-called “white-collar” wrongdoing? Is there no longer any logic in pretrial detention when it comes to crimes without violence against the human person? Did the Prosecutor General of the Republic err by not requesting pretrial detention of the accused, or did he act prudently and within the constitutional model? I think he acted correctly and that he should set the standard for equal treatment in other analogous situations. The Public Prosecution Service may even criticize the position of its institutional leadership, but it would be important to respect the guidelines issued by the STF.

It is indeed worth noting that provisional or preventive detention, as everyone knows, is an exceptional measure, based on the need to guarantee that some kind of imminent and unavoidable danger be removed from society. The proceeding already carries powerful afflictive effects: it is a punishment for someone to answer to a proceeding, so much so that evidence and certain prerequisites are required for this kind of situation. The proceeding causes damage to one’s image and economic losses, can unbalance political or business competition, acquires wide publicity in society and blocks professional opportunities.

“Clean Record” requirements, which enter the terrain of people's backgrounds, are frequent, and the weight of proceedings is considerable, even where there are no convictions. What is to be said, in a scenario in which the proceedings themselves already constitute kinds of penalties, about the appropriateness of an arrest before the judgment? It is an extraordinary measure, and cannot really be trivialized, because it amounts to a strong penalty imposed in advance, in disregard of due process, rights of defense, and adversarial proceedings.

Pretrial detention may be ordered to safeguard witnesses, to prevent an accused or investigated person from destroying evidence, or from fleeing the application of the law, when it must already be carried out immediately. In cases of violent crimes, it is possible to order pretrial detention to prevent the person from continuing to commit crimes against human life, for example, since no other measure, except imprisonment, would be capable of restraining him, as a formula for protecting public order.

How can one prevent a person, a violent robber, from continuing to attack human lives, when there are indications that, at liberty, he may do so? There are countless situations in which provisional, precautionary arrests are necessary. With the amendment of Article 319 of the Code of Criminal Procedure by Law 12,403/2011, a set of precautionary measures alternative to arrest was instituted, which were not even adopted in the Mensalão case.

Pretrial detention may only be ordered when any of those other measures proves insufficient. Article 282, paragraph 4, of the same Code of Criminal Procedure (CPP), states that the set of alternative measures depends on the merits of the individual. That is, the continuation of certain crimes can be prevented by imposing on the accused removal from duties, or provisional obligations to refrain or to act. Flight can be curbed by seizing someone’s passport, and it is likewise feasible to monitor their activities and residence and even require them to account for themselves, with periodic appearances in court. It is neither necessary nor possible to anticipate at once the deprivation of people’s liberty, without a final judgment.

And when restrictions on liberty are abruptly anticipated, what happens? Abusive measures give room for misuse of purpose or misuse of power by public agents. Arrest becomes a spectacle of public execration and anticipated punishment. It is imperative to avoid the multiplication of arbitrary acts, which erode citizens’ trust in the mechanisms for the distribution of justice. Along the same lines, it is important to prevent the proceeding, and the arrest, from becoming oppressive, even cruel, instruments, in violation of human dignity and of people’s presumption of innocence.

One of the lessons of the Mensalão, therefore, is that certain crimes, no matter the degree of their social repugnance, do not automatically give rise to pretrial detention. Surely, once the votes are published, many other debates will be held.