Debate on arrest in 2nd instance returns to the Chamber this Wednesday

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The discussion about the arrest after sentencing in the second instance will return to Congress this Wednesday (5) in the first week after the parliamentary recess. Federal deputies will debate one of the two projects that attempt to institute the rule, PEC (Proposed Amendment to the Constitution) No. 199 of 2019, by deputy Alex Manente (Cidadania-SP).

The special commission that studies the theme meets at 10 am, in the Chamber of Deputies. The first session of the year will have a public hearing attended by Antonio Cezar Peluso, former President of the STF (Supreme Federal Court).

According to Manente, the expectation is that the text will be approved by the end of March. Until then, hearings will be held with the presence of several authorities related to the topic, cases of the Minister of Justice and Public Security, Sergio Moro, and the president of the STF, Dias Toffoli.

The possibility of imprisonment after sentencing at the second instance became one of the main topics under discussion in Congress at the end of last year. In November, the STF changed its understanding and started to consider that defendants can wait in freedom until the final judgment of all appeals. The decision allowed them to resort to higher courts to stay loose and ended up freeing former President Luiz Inácio Lula da Silva.

The proposal that can be approved more quickly is that of Manente, already approved by the Constitution and Justice Commission. The text establishes the final and unappealable status of the criminal action after the second instance trial (in the state courts of law and in the federal regional courts). Thus, the criminal action ends in the second instance. To appeal to the higher courts, interested parties must initiate another action.


While the Chamber is trying to approve the PEC, senators are mobilizing themselves to prevent the other bill on the topic, which has its origins in the Senate, also being put to a vote. They fear that one text will hinder the progress of the other. The idea is to give a deadline until April at the latest for the Chamber’s text to be approved.

The bill that is being processed in the Senate is authored by Senator Lasier Martins (Pode-RS) and intends to amend the Criminal Procedure Code to allow imprisonment after second instance conviction. The text wants to determine that “no one can be arrested except in flagrante delicto or by written and reasoned order of the competent judicial authority as a result of criminal conviction by a collegiate body or by virtue of temporary or preventive imprisonment”.

Currently, article 283 of the code provides that the arrest can only occur “as a result of a final sentence” or, during the investigation or process, in a precautionary manner – temporary or preventive.

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