The Federal Supreme Court (STF) defined, this Thursday (19), a rule on the conditions for first-time offenders convicted of drug trafficking not to serve sentences in prison.
They must not be linked to criminal activities or factions. To achieve this, the so-called “privileged trafficking” must be recognized.
The following conditions must also be followed:
- the sentence must have been calculated at up to four years;
- the defendant cannot be a repeat offender;
- the defendant cannot have negative factors recognized by the judge when calculating the sentence against him.
Once these requirements are met, the open regime must be established and an alternative sentence to prison must be established for those convicted.
The figure of privileged trafficking is established in the Drug Law and serves to reduce the sentence of those convicted of the crime of drug trafficking.
To be recognized as privileged trafficking, you must:
- being a first-time offender;
- have a good background;
- not engage in criminal activities or join a criminal organization.
One of the reasons for freeing people convicted of privileged trafficking from prison is to prevent them from joining criminal factions, which dominate prisons. This understanding had already been adopted by the Supreme Court, but courts across the country did not follow it.
The Court then approved a “binding summary”, a mechanism that must be followed by all bodies of the Judiciary and the public administration. If there is a violation by a judge, it is possible to directly contact the STF with an action called a “complaint”.
Based on this STF summary, if all requirements are respected, the country’s judges must apply the open regime and the alternative sentence to prison to those convicted of trafficking, in cases where the privileged situation is recognized.
The alternative sentence to prison is called restrictive of rights because it differs from the prison sentence (known as deprivation of liberty). It may involve measures such as loss of property, limiting movement on weekends and providing services to the community.
Requirements
To replace imprisonment in cases of privileged trafficking, negative factors must not have been recognized against the convicted person in the first phase of calculating the sentence.
In this calculation stage, the Court evaluates issues such as guilt, social conduct and personality of the defendant, circumstances of the crime and the behavior of the victim.
It is also necessary that the total sentence imposed is up to four years and that the defendant is not a repeat offender (has not committed a crime before).
The binding summary approved by the STF is as follows: “It is mandatory to establish the open regime and replace the penalty depriving liberty with a restriction of rights when the figure of privileged trafficking is recognized and negative vectors are absent in the first phase of dosimetry, observing the requirements of the article 33 §2 paragraph C and article 44 of the Penal Code”.
After the result, the president of the Supreme Court, minister Luís Roberto Barroso, said approval was “very important”. “Many courts were not following the STF’s jurisprudence on this matter,” he stated.
“Arresting these primary school children for small amounts of drugs when they are not part of organized crime is actually providing labor for organized crime,” he declared.
Source: CNN Brasil
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