O National Congress vote this Thursday (30) to overturn the president’s veto Luiz Inácio Lula da Silva (PT) to Bill 2162/2023, also called Dosimetry PL. The text changes rules for calculating penalties and regime progression for those convicted of coup acts of January 8, 2023but its effects extend to other crimes.
To reject the veto, an absolute majority of votes from deputies and senators is required, that is, 257 votes from deputies and 41 votes from senators.
A CNN Brazil heard the lawyer Antonio Tovoprofessor of Criminal Law at Faculdade Belavista and PhD in Criminal Law from USP (University of São Paulo), to explain the practical effects of the change.
What the project changes
O: o penalty calculation for defendants convicted of more than one crime in the same context and the rules of progression of prison regime.
Firstly, the project changes how crimes committed together are counted. Today, defendants convicted of both the violent abolition of the Democratic Rule of Law and a coup d’état — articles 359-L e 359-M of the Penal Code — have added penalties, the so-called material contest. According to the PL, the formal competition would be valid: only the most severe penalty would be appliedwith a percentage increase, without adding the two convictions which, according to Tovo, violates the principle no until in idem.
On the second front, the text reduces the minimum time for progression from closed to semi-open regime. For crimes against the Democratic Rule of Law, this period would fall from 25% to one-sixth of the sentence served.
The project can benefit at least 179 prisoners for the acts, 114 of whom are under closed conditions, 50 under house arrest and 15 under preventive detention.
The former president’s sentence Jair Bolsonaro (PL), sentenced to 27 years and 3 months by the STF (Supreme Federal Court), would have changes: in the current situation, he would move to the semi-open regime in September 2033. With the PL, this period would be reduced by half.
The project also creates a reduction of one third to two for those who committed crime in a crowd context without exercising a leadership or financing role — benefit applicable to some of those convicted on January 8th.
Impact beyond January 8th
The proposed changes to the Criminal Execution Law are not restricted to those convicted of coup acts. The new proposals apply to all cases that fall under the code, which includes crimes unrelated to the coup attempt.
A technical survey of the Chamber of Deputies points out that, for crimes such as the minimum time served for first-time offenders would fall from 70% to 40% of the sentence. To feminicidethe percentage would go from 75% to 55%, while convicted of being part of criminal organizationsfrom 75% to 50%.
The soldiers convicted of the coup attempt also fit the bill, as their crimes fit into the list against democratic institutions.
“The PL generates effects for all criminal cases”, says Tovo.
The text distorts them by creating a specific rule only for crimes against democratic institutions — which, in the expert’s opinion, constitutes a technical deficiency. For Tovo, the most appropriate solution would be a criminal review conducted by the STF itself. “The best thing would be for the Supreme Court to criticize itself and recognize that these penalties were excessive.”
When can the Dosimetry PL come into force?
If the veto is overturned, the project goes to promulgation. The PL itself is effective from the date of publication. The Executive has up to 48 hours to promulgate the text. If he fails to do so, the President of the Senate, Davi Alcolumbre (União Brasil-AP), assumes the role.
However, sentence reduction or regime progression is not automatic. Tovo explains that “Brazilian Criminal Law adopts the principle of individualization of the sentence, which means a detailed analysis of the circumstances of the criminal act and the accused”. “The analysis of a possible sentence reduction or regime progression depends on a specific request to the judge in the case, who will analyze whether the legislative change applies to the specific case.”
Brazilian criminal law allows the most beneficial law to be retroactive to convictions that have already become final and unappealable. In other words, defendants in cases that no longer require appeal will be able to request review of their sentences based on the new law.
How the STF can act
According to Tovo, “if it is provoked to decide on the matter, the STF may suspend the validity of the Law, understanding that it violates constitutional precepts”. Political parties, associations and legal institutes have the legitimacy to file these actions through ADI (Direct Action of Unconstitutionality) and ADPF (Argument of Non-compliance with Fundamental Precepts). The Supreme Court can suspend the effects of the law even before it is applied.
The professor explains that the main grounds for questioning the PL involve the principle of proportionality and the misuse of purpose. The first works if the legislative change is not the appropriate instrument to correct possible excesses in sentencing; The second can be configured by issuing a law aimed at a concrete situation with strong political content.
