Because it is as if they were two different penalties: the nominal one, at the time of conviction, which takes into account every detail of the crime(s) committed, and the unified penalty, which “merges” the fulfillment of all these punishments. It is the latter that needs to respect the 30-year limit provided for in the Penal Code (CP) – which does not prevent the judge from sentencing a higher amount at the end of the trial, whatever is necessary to enforce the law.
“In addition, the final number of years of a sentence is important for regime progression, granting parole or replacement by a fine”, explains lawyer Jenniffer Souza, from Juiz de Fora (MG). “To progress to the semi-open regime, for example, it is necessary to serve, in a closed regime, at least one sixth of the original sentence. In some cases, this portion is already over 30 years old, which means that the defendant will not be entitled to regime progression.”
THE THREE PHASES OF JUSTICE
In Brazil, the definition of the punishment of a criminal goes through three stages:
1. BASE PENALTY
For each type of crime, the Penal Code (CP) provides for a minimum and maximum limit of time in prison. For example: simple robbery can pay 4 to 10 years in chess. It is in this interval that the judge establishes the initial value of the penalty. It then adds or subtracts years according to eight judicial circumstances:
– (André Meister/)
2. MITIGATION AND AGGRAVATORS
After analyzing the judicial circumstances, the judge must stick to the legal circumstances. First, the mitigating factors, which subtract years from the base sentence. For example: if the convict is under 21 years of age on the date of the crime or over 70 on the date of the sentence. Then the aggravating factors, which add years. For example: if the victim was a child, a pregnant woman, a sick person or someone over 60 years of age.
3. MAJORANTS AND MINORANTS
Other causes for increasing or reducing the sentence are considered. Example: if a doctor is convicted of performing an abortion, article 127 of the CP provides for double the penalty if the pregnant woman has died. As in phase 2, you must first decrease it and then increase it. But, unlike that phase, the final value may exceed the minimum and maximum limits provided for in the Penal Code.
– (André Meister/)
PRACTICAL EXAMPLE: THE NARDONI CASE
Understand how each of the phases affected the final sentence of one of the most famous crimes in the country
In 2008, the girl Isabella nardoni, aged 5, fell from the window on the 6th floor of the building where he lived, in São Paulo. Investigations concluded that she was played by her own father, Alexandre nardoni, and stepmother, Anna Carolina Jatobá. The trial took place in 2010. See how the sentence was defined step by step.
1. BASE PENALTY
The defendants were convicted of aggravated homicide. According to the Penal Code, this amounts to 12 to 30 years in prison. The judge started with the minimum amount and decided to increase it by 1/3 after considering four criteria: culpability, personality, circumstances and consequences. Result: base penalty of 16 years of detention.
2. MITIGATION AND AGGRAVATORS
The couple had no mitigating circumstances. But there were two aggravating factors: use of a cruel means (Isabella was asphyxiated before being thrown) and a resource that made it difficult for the victim to defend herself (she was unconscious when she was thrown). Therefore, the judge added another 1/4 to the base penalty. And, in the case of Alexander, because Isabella was his descendant, he added 1/6, resulting in 23 years and 4 months.
3. MAJORANTS AND MINORANTS
There was a major: intentional homicide was committed against someone under 14 years old. For this, article 121 of the CP provides for a 1/3 increase in the penalty. Anna Jatobá’s total rose to 26 years and 8 months and Alexander’s nardonifor 31 years, 1 month and 10 days – thus exceeding the limit of 30 years to be served in prison.
– (André Meister/)
CONSULTANCY Jenniffer Souza, Bachelor of Law
SOURCES Criminal Law Manual: General Part and Special Part, by Guilherme de Souza Nucci; site LawNet