I spoke to Sergei Cobra Arbex of Zulaiê Cobra Ribeiro, in São Paulo, André Perecmanis of Perecmanis & Klein, in Rio, and Rafael Tucherman of Cavalcanti & Arruda Botelho, in São Paulo. Here, I've translated and excerpted their answers.How does maximum sentencing work in Brazil? Why aren't there life sentences?
"As defined by the Penal Code, the maximum sentence is 30 years. But that doesn't mean that an individual can't be sentenced to more than 30 years if the person has committed more than one crime. On the other hand, Brazilian law states that no one can serve more than 30 years in prison for each conviction. That means that even if a defendant is sentenced to 100 years in prison, he can only serve 30 years. Also, if an individual commits another crime after serving 30 years in prison, he can be arrested again and serve another sentence. As for life sentences, the Constitution prohibits this as a matter of criminal policy, based on the understanding that since judicial error is inevitable in any system, irreversible situations should be avoided." --André Perecmanis
"Each crime has a minimum and maximum sentence stipulated by the law, and this limit must be obeyed by the judge. If the defendant is convicted of more than one crime, the sentences are added together. There's no maximum limit for the total of this sum, but no one can be jailed uninterrupted for more than 30 years." --Rafael Tucherman
How do open prison, semi-open prisons, and closed prison systems work? How is it decided how a person serves his or her sentence?
"By law, a closed system is carried out at a penitenciary, a semi-open system in a farming or industrial living facility, and an open system at a half-way house (a building without fences to prevent escapes). Due to the historical problem of prisons in Brazil, however, the practice works this way: in a closed system, the convict is locked up full-time at a maximum-security penitentiary; in a semi-open system, the convict is locked up at night and can work outside during the day; and in an open system the convict is free to move around all the time but is subject to certain restrictions (for example, having to show up at court once a month to report on his activities, and to not leave his city of residence without a judge's permission).
Which system a person enters is decided mainly in accordance with the total sentence. For a sentence of more than 8 years, the convict begins his sentence in a closed system; from four to eight years, he starts his sentence in a semi-open system, and for four years or less, he starts in an open system. But judges have a certain flexibility to make a decision outside of these rules in very specific cases. In practice, in all of the cases in which this flexibility is used, it's to require a worse system for the convict." --Rafael Tucherman
What is foro privilegiado, or privileged jurisdiction?
"Privileged jurisdiction is a legal instrument in our Constitution that establishes a truly 'privileged' trial for certain figures such as the president, vice president, governors, mayors, federal congressmen, judges, and prosecutors. These figures are brought to trial in a different court than that of a common citizen. For example, if a judge commits a crime, he is tried in the Superior Tribunal de Justiça. If a governor commits a crime, he’s tried in the Tribunal de Justiça. The president and federal congressmen are tried at the Supreme Court. This rule would be justified for president and governors, because they’re subject to trials throughout the country. So if a president had to go to trial in different cities, he’d have to travel all over the country and it could hurt his administration. But not federal congressmen. They should be tried like the rest of us.
I think one of the greatest embarrassments and absurdities of Brazilian law is privileged jurisdiction. It creates a first-class judicial system and a second-class judicial system. It doesn’t make sense. Everything that’s happening with the mensalão has to do with privileged jurisdiction. If it weren’t for this, the case wouldn’t have stopped the Supreme Court. The trial is taking awhile—and it would anyway because of this problem with slowness of the judicial system—but it’s having an impact because it’s taking place in the nation’s highest court." --Sergei Cobra Arbex [Read his recent op-ed on this issue in Portuguese]Now that there's room for appeals, how much longer will the mensalão trial go on? What's the probability that the 12 defendants eligible for appeals will be jailed?
"There's no cut-off date for the mensalão trial, and there's no way to know ahead of time if the defendants will be jailed. The possibility of a not-guilty verdict for the defendants appears very small; at the very least, there's the hypothesis that the Supreme Court recognizes some invalidity during the case and overturns the original sentence, which seems absolutely improbable. On the other hand, since the justices can change the sentences, either the quantity or the convictions, they could substitute prison sentences with a non-custodial punishment." --André Perecmanis
It's difficult to predict, since in theory the defendants could issue further appeals other than the ones recently accepted to be heard by the Supreme Court. These appeals, the only ones capable of changing the outcome of the trial, will probably be heard through the first half of next year. When this happens, there's a chance the justices could start to execute the sentences. The majority of the 12 defendants (of the total of 25) who have the right to enter the appeals will still have prison sentences and at the end of the trial, will be put in prison. If the appeals are accepted by the Court, only one of the 12 defendants can be absolved; others may be able to spend their sentences in an 'open' arrangement, and others in a 'semi-open' arrangement; but at least half of those 12 will have to spend their prison time behind bars in closed jail. --Rafael Tucherman
What cases should the Supreme Court be hearing rather than the mensalão?
"Any case. Any case worth being considered by a constitutional court. Because this isn’t a constitutional case. This court is supposed to deal with important issues to Brazil, like economic issues, issues of morality, religion, freedoms, and human rights. So there are a ton of cases waiting to be heard and they’re stuck there until the mensalão trial ends." --Sergei Cobra Arbex
Vitalmiro Bastos de Moura, accused of ordering the murder of nun Dorothy Stang, has had four trials and was convicted to 30 years in September. In cases of homicide, how many trials and appeals are possible?
"The judgement of these types of crimes against life are done by jury trial. Though the Constitution assures the sovereignty of the decision of the jury, the penal code lists several reasons that authorize an annulment of the trial. Let's imagine this situation: an individual is brought to trial, during which the judge prevents the defense from producing evidence, which is a cause of a breach of procedure. If the defendant is charged, the trial can be annulled so that another can take place. If during the new trial, another illegality is proven, the trial can be annulled once again, and so on and so forth. Beyond that possibility, a defendant accused of homicide has the right to appeals just like in the case of other crimes." --André Perecmanis
Could Bastos de Moura have yet another trial--and the chance to be freed?
"Without having read the case, there's no way to know if this trial will be the last. But I believe the defense with appeal and at least in theory, it's not impossible that a new trial will be held if an illegality in the most recent trial is found. If this happens, there will be a new jury, in which Vitalmiro could be sentenced or absolved. Homicide trials can be annulled for procedural illegalities as well as when the decision of the jury was clearly contrary to the evidence in the case. In the first example, there's no limit to the number of appeals and trials. In the second example, if the court accepts an appeal alleging that the decision went against trial evidence, the same person cannot propose the same appeal a second time." --Rafael Tucherman
What is it like to be a victim of crime in Brazil from a legal perspective?
"It’s hard to be a victim in Brazil. You don’t see justice happening, and you get a feeling of impunity. One example is a famous case I worked on, the murder of journalist Sandra Gomide. She was killed in 2000 and her ex-boyfriend confessed to her murder. But the trial process took 11 years.
It’s really hard to depend on the state, and the victim always depends on the state. The victim goes to the police station, and they don’t file a report. A victim issues a complaint, and the judicial system doesn’t punish the company violating consumer rights. So Brazil is crawling, moving very slowly, in terms of citizenship. Here, the judicial system has yet to guarantee the minimal rights of citizens. This ends up impacting criminal issues, but it impacts a lot of other areas, too. Everything in Brazil is touched by impunity because the state is very weak." --Sergei Cobra Arbex
In your opinion, what's the greatest achievement of Brazilian criminal law? The greatest challenge?
"I believe that the biggest challenge is to make society understand that a fair trial is one in which all of the rules and legal guarantees are respected, regardless of who benefits. We still live in a society that believes that constitutional rights and guarantees are a privilege and an incentive for impunity, and not an absolutely necessary way to control the will of public power." --André Perecmanis
“One of the great successes recently was the reform of the judicial branch. We have a control mechanism, which is the National Council of Justice. It’s an external council made up of judges, lawyers, and members of society to monitor the judicial system. It also deals with productivity. Some things got a lot better in that respect. What needs to be done now is improve the system of monitoring in terms of quality and in terms of speed. It also gives the judicial system a better quality of administration. It helps discover which judges work and which don’t. The ones that don’t work should be removed. One of the biggest challenges is slowness—the time it takes to finish a trial.” --Sergei Cobra Arbex
"In my opinion, the great success that Brazil has been achieving in criminal law is the greater preparation of the criminal system as a whole (detectives, judges, prosecutors, and lawyers) to deal with more complex crimes--especially financial ones--and not just with the ones traditionally addressed by the system (homicides, robbery, drug trafficking). But the challenges are still much larger than the successes. I consider the two main challenges to be the low quality of investigations (there are statistics that less than 10 percent of crimes are solved by the police), without a doubt the main reason for the feeling of impunity that still exists here, and the terrible conditions of our prisons, which put in doubt the legitimacy of the system as a whole." --Rafael Tucherman
Image: Fernanda Tatagiba/Flickr.