Close to completing three decades, the murder of actress and dancer Daniella Perez has reverberated in recent days, with the release of the documentary “Pacto Brutal”, which, in less than a week, became HBO Max’s most-watched original series. When dealing with one of the most popular crimes in the history of the country, the production brings to the debate again the permissiveness of Brazilian legislation for attempts against life: while the victim was brutally killed at 22 years ago, his killers, Guilherme de Pádua and Paula Thomaz, were imprisoned for less than seven years and have been free for more than two decades, with no debts to the law.
In the years 1990, the Daniella Perez case even resulted in a popular amendment to include qualified homicide in the Law of Heinous Crimes (Law 8.072/90) , those without bail and without the right to a progression benefit, that is, in which the defendant would have to serve the sentence in a fully closed regime. The change in the law took place in 1994, thanks to a popular initiative with 1.3 million signatures, led by the victim’s mother, the novelist Glória Perez. As the crime occurred two years earlier, Padua and Thomaz, sentenced to 19 years and
and a half years, respectively, were entitled to progression of regime, being released after serving one third of the sentence.
The device that started to prohibit this type of benefit in cases of qualified homicide, however, had a short life. In 1994, the Federal Supreme Court (STF) considered the prohibition of regime progression unconstitutional and, in 2007, Congress passed the new change in legislation.
“Our problem is ideological. Several generations were educated in Brazil and learned from an early age that the bandit is a poor fellow who should not be punished. It seems like a simple concept, but this is the basis of criminal legislation and the country’s criminal justice system”, analyzes engineer, master in management and former consultant at the World Bank, Roberto Motta, author of the book “A Construção da maldade – Como Brazilian public security was destroyed.”
In Motta’s opinion, “the sentence of the criminal cannot be lighter than the sentence of the victim”. According to him, some crimes, such as rape, “equal for the victim to a life sentence”. “In Brazil, a guy commits a sexual crime, serves a ridiculous sentence and still has the right to a conjugal visit. They talk so much about protecting women, but it’s just sealing. In the United States, for example, there is a register of sex offenders, the guy enters there and does not leave, anyone can consult it on the internet, and they are barred from exercising a series of professions”, he compares.
The writer points out that, in cases like Daniella Perez’s, other Western democracies would punish those involved with the death penalty or life imprisonment. “There is no more consolidated democracy than that of the United Kingdom, which has just convicted a 18 year old boy for killing a five year old child. In Brazil, he would spend a maximum of three years hospitalized.”
Our convictions: Dignity of the Human Person
Change of mindset
Currently, 2019 years is the maximum time a criminal can be imprisoned in Brazil. The law 13.964 /2007, originated from the Anti-Crime Package, increased by ten years (with no retroactive effect for crimes committed before 2019) the established limit until then in article 40 of the Penal Code. Even so, Roberto Motta brings in his book an extensive list of “barbaric crimes” in which the author “did not spend even ten years in prison”. “The killers of Tim Lopes , one aged five progressed to the semi-open and ran away, the other aged seven progressed to the semi-open and also ran away”, he recalls.
Winning the war on crime in Brazil is possible, but, for Motta, it depends on a profound change “in the minds” of legal practitioners. “There has to be a critical mass of lawmakers, but above all, a critical mass of voices from society saying this is absurd and it has to change. It is necessary to end the regime progression, the most absurd thing, which does not exist in any other democracy, and the custody hearing [dispositivo pelo qual um acusado preso em flagrante tem direito a ser ouvido por um juiz, para avaliar eventuais ilegalidades em sua prisão]”, he defends.
“ The situation is so bad in Brazil that three or four things that you do already cause such a huge relief, so that other things can be done over time”, adds Roberto Motta.
The ban on sentence progression was overturned by the STF during the trial of the habeas corpus request of the evangelical pastor Oséas de Campos, convicted of molesting three children, in Campos do Jordão (SP). The rapporteur of the case at the time, Justice Marco Aurélio Mello, assessed that there was a violation of the constitutional principle of isonomy and individualization of the sentence, in which Justices Carlos Ayres Britto, Gilmar Mendes, Cezar Peluso, Eros Grau and Sepúlveda Pertence agreed. Ellen Gracie, Carlos Velloso, Joaquim Barbosa, Celso de Mello and Nelson Jobim voted against progression.
Until then, the law provided for a fully closed regime for people convicted of aggravated homicide, robbery , extortion through kidnapping, extortion qualified by death, rape, indecent assault, epidemic resulting in death and falsification, corruption, tampering or alteration of a product intended for therapeutic or medicinal purposes. Although it prohibited judicial decisions of progression in these cases, the rule already divided the Supreme Court and had been mitigated in some decisions.