HC 124306 — Unconstitutionality of Automatic Pre-Trial Detention

Introduction

HC 124.306 (Habeas Corpus 124.306) is a landmark decision of the Supreme Federal Court (STF) regarding the scope of the presumption of innocence (presunção de inocência) and the constitutionality of automatic pre-trial detention following a conviction at first instance. Decided in 2016, the case resolved a long-standing controversy about whether criminal defendants could be imprisoned before all appeals were exhausted.

Background

Brazilian criminal procedure had historically allowed pre-trial detention after a conviction was affirmed on appeal, based on the interpretation that the presumption of innocence did not bar imprisonment once the defendant had been properly convicted. The Penal Code and the Criminal Procedure Code (CPP) allowed enforcement of sentences after first instance conviction in certain circumstances.

The case arose from a habeas corpus petition filed on behalf of a defendant who had been ordered to begin serving his sentence after his conviction was affirmed by the court of appeals, before his appeals to the STJ and STF were decided.

Legal Issue

The central question was whether Article 283 of the CPP, which requires a final and unappealable conviction (trânsito em julgado) for imprisonment to begin, is consistent with the constitutional guarantee that “no one shall be considered guilty until a final and unappealable criminal conviction” (Article 5, LVII of the Constitution).

The Decision

By a 7-4 vote, the STF held that the Constitution requires that imprisonment be imposed only after all appeals are exhausted, unless the defendant is subject to pre-trial detention on specific grounds under Article 312 of the CPP (risk of flight, danger to the investigation, or danger to public order).

Majority Opinion

Justice Luís Roberto Barroso authored the majority opinion, holding that:

1. Article 5, LVII establishes the presumption of innocence as a fundamental right
2. The Constitution prohibits the state from treating anyone as guilty before the final and unappealable decision
3. The automatic commencement of imprisonment after first instance conviction violates this constitutional principle
4. Pre-trial detention remains available under the strict requirements of Article 312 of the CPP

Dissenting Opinions

Justice Edson Fachin and others dissented, arguing that: (i) the constitutional guarantee does not prohibit enforcement after appellate affirmation; (ii) the practical impact would undermine criminal enforcement; and (iii) the decision would lead to increased appeals and procedural delays.

Impact and Relevance

Immediate Effects

HC 124.306 had significant practical impact: (i) thousands of defendants who were imprisoned after first instance conviction but before final decision were released; (ii) the criminal procedure system adjusted to require individualized findings for pre-trial detention; and (iii) the decision reinforced the presumption of innocence.

Subsequent Challenges

The decision has been challenged in subsequent cases. In ADC 43, ADC 44, and ADC 54 (2019), the STF considered requests to allow imprisonment after second instance conviction. The Court initially permitted it but, in 2019, reaffirmed the HC 124.306 standard after extensive deliberation.

Legislative Response

The Anti-Crime Package (Pacote Anticrime, Law 13.964/2019) modified the CPP to clarify the requirements for pre-trial detention and incorporate the STF’s jurisprudence.

Conclusion

HC 124.306 represents a definitive interpretation of the constitutional presumption of innocence. The STF’s holding that imprisonment requires a final and unappealable conviction — subject to strict pre-trial detention requirements — aligns Brazilian criminal procedure with international human rights standards and reinforces the centrality of the presumption of innocence in the constitutional order.