STJ reestablishes collective HC granted to elderly prisoners in RJ


Freedom guaranteed by a judicial decision that recognizes the imprisonment as illegal cannot be sustained by a writ of mandamus. Especially when this happens due to political-economic criteria, incompatible with protecting the right to come and go.

With this understanding, Minister Nefi Cordeiro, of the Superior Court of Justice, restored the effects of the collective Habeas Corpus granted by the Rio de Janeiro Court of Justice to determine the analysis and release of elderly provisional prisoners.

Elderly in provisional detention should have their situation analyzed by the Judiciary
Sakhorn Saengtongsamarnsin

Thus, there are four days left for judges with competence for the criminal knowledge phase to re-evaluate the situation of all prisoners aged 60 or over. If this does not occur, immediate release is necessary in the face of the observed omission.

The original decision was issued last Friday (3/20) by Judge Alcides da Fonseca Neto, on duty, taking into account the coronavirus pandemic and Recommendation 62 of the National Council of Justice, which deals with the decrease in the inflow of income in the prison system.

In the second, it was suspended by the president of TJ-RJ, Judge Claudio de Mello Tavares, after a request from the Public Prosecutor of Rio de Janeiro. For Minister Nefi Cordeiro, there was a usurpation of competence to analyze the deed, which would be of the criminal class in the examination of a possible regulatory appeal against the monocratic concession of the injunction.

Thus, it applied the Precedent 604 of the STJ, according to which the writ of mandamus does not lend itself to giving suspensive effect to a criminal appeal filed by the Public Ministry.

“In the suspension of security, the situation is even worse, because not only is the order of freedom reached, but this is due to political-economic criteria, incompatible with the protection of the right to come and go,” said the minister, recognizing the flagrant incompetence and illegality in the use of the security suspension to revoke the Habeas Corpus injunction.

Case history

The request in collective Habeas Corpus was handled by the Public Defender of RJ, having as precedent the case in which the 2nd Panel of the Supreme Federal Court granted the release of pregnant women and mothers of children up to 12 years old provisionally imprisoned in February 2018. The claim is that the elderly temporarily incarcerated are a hypervulnerable group in the face of the pandemic.

When suspending the granting of the order, the president of the TJ-RJ stated that the decision is impossible to be fulfilled because, precisely because of the coronavirus, forums and courts are closed or with reduced functioning. And in order to comply, all judges and servants in the state would have to physically address them, since criminal cases are still on a physical basis, which goes against humanitarian efforts to combat the pandemic.

Unable to be enforced within ten days, the decision would lead to the immediate release of people provisionally arrested, without specific reasoning and replacing previous individualized and motivated decisions.

To the STJ, the Public Defender’s Office of Rio de Janeiro recognized the limitations of personnel imposed by the closing of forums and courts and by measures of social isolation. And he stated that, precisely for this reason, the collective Habeas Corpus is a suitable measure. “The urgency today can no longer be seen through the ordinary, public security perspective,” he said in the request.

He also stressed that, when demanding an individual decision in the lower courts, there would be no way to ensure equal protection for the group that is characterized as hypervulnerable, given the overcrowding of the state chains and the probability of death caused by the virus.

Click here to read the decision
HC 568,752

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