Criminal statute of limitations is an important topic in legal practice, particularly for attorneys specializing in criminal law.
It refers to the termination of the possibility of punishing a crime once a specific time limit set by law has passed, ensuring that the State enforces its punishment within a reasonable timeframe.
This article will discuss the legal basis of statute of limitations, different types of limitations (criminal and civil), time limits for limitations, factors that can interrupt limitations, and crimes that cannot be predicted.
We will also examine how STJ and STF case law addresses the topic, offering useful perspectives for lawyers in their practice.
If you want to learn about how the statute of limitations functions, how to determine time limits, and how to utilize it to benefit your clients, this article is for you!
Legal basis of the statute of limitations
The legal basis for the statute of limitations is closely connected to the necessity of maintaining the safety of social interactions and legal consistency.
The primary purpose of the statute of limitations is to prevent the State (or individuals in civil cases) from punishing someone indefinitely, without a reasonable time gap between the crime and the penalty.
The State’s punitive function involves ensuring that punishments are carried out within a timeframe that upholds constitutional principles and individual rights, not just imposing penalties.
Article 109 of the Brazilian Penal Code sets time limits for legal actions based on the seriousness of the crime.
Prescription rules for criminal cases are determined based on the maximum length of the potential prison sentence, with different time limits set depending on the severity of the offense.
The same deadlines for the strict penalties of the law are extended in a single paragraph of the article, ensuring consistency in legal handling.
The penal prescription is based on constitutional principles and fundamental guarantees, ensuring legal certainty and stability of legal relations.
The law will not violate existing rights, valid legal actions, or court decisions.
Evidence can degrade, witnesses might not recall details correctly, and societal changes can affect the concept of justice over time.
The penal prescription is also based on the principle of procedural speed, aiming to guarantee that cases are resolved promptly to fulfill their purpose of punishing and correcting behavior.
The slow legal process not only burdens the court system but also negatively impacts both the defendant and the victim, who deserve to have their cases resolved promptly.
The penal prescription is ultimately rooted in the dignity of the individual, as outlined in Article 1 III of the Federal Constitution.
The human person’s dignity is protected by Article 1, Section III of the Brazilian Constitution.
An individual cannot endure the stress of a legal accusation indefinitely and must recognize a period that will provide stability and enable the full exercise of their rights.
The prescription sets a deadline for the state’s actions to prevent excessive or unfair exercise of punitive power.
Check out our article about: Prescription and Decay: Understanding the distinctions.
Types of criminal statute of limitations
Two main types of criminal prescription are the prescription of the punitive claim and the prescription of the enforcement claim.
Each of these events takes place at various stages of the legal process and is governed by specific regulations, as outlined later.
Prescription of Punitive Claim
The punitive claim is made before the final verdict, while the legal process is still ongoing.
If the State does not finish the process within the time specified by Article 109 of the Criminal Code, the defendant’s right to punishment is ended.
This prescription can be divided into three different types.
Abstract Prescription
The abstract prescription is determined by the highest penalty associated with the crime and is governed by the time limits outlined in Article 109 of the Penal Code, focusing on two specific time periods.
- The time between committing a crime and receiving a complaint (investigative phase);
- The time from receiving the complaint to announcing the conviction sentence (legal case).
Judicial circumstances do not affect the calculation of the prescription period.
(b) Prescription that applies to past events
The retroactive prescription takes place prior to the sentencing but is deemed to have been effectively implemented within the sentence.
The legal foundation is found in Section 1 of Article 110 of the CP, which bars the inclusion of the time before the complaint is received.
The time before receiving the complaint or accusation should not be included in the calculation of the prescription period, according to Article 110, §1, of the Penal Code.
(c) Intercurrent Prescription (Supervening)
The supervenient prescription, also known as the intercurrent, takes place after the conviction but before the trial concludes.
The time limit is determined based on the penalty imposed in the sentence when there is no appeal from the prosecution or the appeal is rejected.
Prescribing the claim for execution
The enforceable claim prescription takes place once the conviction sentence has been finalized in court and the State stops enforcing the penalty within the specified time frame.
The theory suggests that the authority to carry out the punishment is revoked, and the offender is no longer required to serve it.
The deadline calculation depends on the penalty applied, as stated in article 112 of the Criminal Procedure Code.
Penal prescription deadlines
The penalty is a complicated concept that demands lawyers to have a good understanding of time limits, reductions, and interruptions. Here, we will discuss the key points of penal prescription, drawing from the Criminal Code (CP) and legal decisions.
The time limits for the statute of limitations are specified in Article 109 of the CP, which sets out varying time frames based on the severity of the crime’s maximum penalty.
See the overview of these due dates below:
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Feathers can be returned within a timeframe of 1 to 2 years.
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These deadlines apply to restricting punitive claims, which means the State’s right to prosecute and judge the defendant before a final conviction.
Prescription Deadlines Reduction
Article 115 of the CP outlines two situations where the time limits for prescribing are cut in half.
- If the agent was younger than 21 at the time of the criminal case.
- If the agent was above 70 years old at the time of the statement.
Causes that can stop the running of the statute of limitations
Certain procedural actions can interrupt the prescribed time period, causing the count to start over.
The primary factors causing disruption are:
- Initiating criminal proceedings stops the statute of limitations from running when a complaint is received.
- In cases involving crimes against life, the pronouncement or confirmation of the sentence suspends the time limit.
- The court’s decision to publish a conviction or confirm a conviction stops the expiration of the time limit.
After the disruption, the deadline restarts from the beginning, potentially causing a significant delay in the legal process.
To more precisely determine the time limits for the statute of limitations, you can utilize the Legal Cloud tool, which provides a schedule calculator.
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Important Summaries and Insights
The issue of criminal statute of limitations sparks numerous debates in legal practice, particularly concerning time limits, commencement of the countdown, and factors that can disrupt it.
Over time, the Superior Court of Justice (STJ) and the Supreme Court (STF) have established significant insights and precedents through summaries and key rulings.
We emphasize some of these insights, using quotes from the summaries and legal decisions.
Clairvoyance and Prediction of Punitive Intention
STJ’s Súmula 220 asserts that repetition does not affect the deadline for filing punitive claims.
This concept was reinforced in various previous cases, including EREsp 54398/PR and HC 7942/PR. The Sumula states:
Residence has no impact on the punitive pretension limit set by STJ Class 220.
Executory Prescription and Suspension
STJ Theme 788 addresses the starting point for calculating the presumption of execution, particularly in situations involving the conditional suspension of sentence execution (sursis).
The court established the following statement:
The starting point of the prescription period for the enforcement claim is the date when the conviction sentence is passed in court for the prosecution, even if the sentence execution is conditionally suspended.
The STJ ruled in case ARE 848107 that the statute of limitations starts from the trial’s conclusion for the prosecution, even if the sentence execution is suspended.
Essential crimes
The Brazilian legal system acknowledges the presence of crimes that cannot be subject to the statute of limitations, despite the Penal Prescription principle aiming to ensure the State’s enforcement of punitive measures within a reasonable timeframe.
Let’s examine the crimes that the law considers as unprescribable.
Prejudice based on race
Racism is seen as an unforgivable and non-waivable offense in Brazilian law, as outlined in Article 5, Section XLII of the Federal Constitution.
The act of racism is a punishable offense that can lead to imprisonment, according to the law stated in Article 5, XLII of the CF/88.
The Law no. 7.716/1989 strengthens the constitutional provision by defining the crimes of racism.
This clause shows that the Brazilian government is dedicated to addressing all types of racial discrimination to uphold equality and human dignity.
Serious offenses such as drug trafficking, torture, and terrorism.
Another type of unforeseeable offenses is outlined in Article 5, section XLIII, of the Federal Constitution.
This device covers offenses like illegal drug trafficking, torture, terrorism, and serious crimes.
The seriousness and impact on society are reasons why these crimes cannot be subject to a statute of limitations.
The law will treat as unforgivable and not eligible for pardon crimes such as torture, drug trafficking, terrorism, and other serious offenses, including those who ordered, carried out, or failed to prevent them.
Heinous offenses, as outlined in Law No. 8.072/1990, encompass acts like aggravated murder, kidnapping, extortion resulting in death, rape, genocide, and more.
The crimes’ lack of a statute of limitations emphasizes the lawmaker’s aim to harshly penalize actions that impact life, bodily well-being, and public order.
Armed Groups’ Actions against the Constitutional Order and the Democratic State
The Federal Constitution considers the act of armed, civil, or military groups going against the constitutional order and the Democratic State of Law as a form of unforeseeable crime.
Engaging in armed activities by civilian or military groups that challenge the constitutional order and the democratic state is considered a severe and essential offense according to Article 5, XLIV of the 1988 Constitution.
The Lawyer’s Role in Criminal Cases
The lawyer plays a crucial role in protecting the rights of their clients in cases of criminal statute of limitations.
The performance includes carefully examining the time limits set by law, pinpointing factors that could cause delays, and using legal strategies strategically to ensure that the time limits are acknowledged when necessary.
The deadlines established in Article 109 of the Criminal Procedure Code, which depend on the severity of the crime, are crucial.
The attorney should also examine if there are circumstances that could lead to deadlines being shortened, such as situations involving individuals under 21 at the time of the incident or over 70 at the time of the judgment, as outlined in Article 115 of the Criminal Code.
The lawyer plays a crucial role in ensuring that penal prescription is applied justly and efficiently, safeguarding clients’ rights and ensuring State compliance with legal deadlines.
Its strategic approach, informed by laws and legal precedents, can significantly impact the process’s outcome.
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Frequently Asked Questions
What does criminal prescription mean?
The penalty involves the state losing the authority to punish someone because too much time has passed since the crime was committed. This ensures that punishment is carried out within a reasonable timeframe, preventing individuals from facing indefinite threats of punishment.
What types of penal prescription exist?
There are two primary categories.
- Punitive Pretension Prescription happens before the final conviction, during the legal process, and can be abstract, retroactive, or supervenient.
- The prescription of executory pretension happens when the State fails to enforce the penalty within the specified legal timeframe after the conviction sentence in court.
Calculating the penalty period – methods.
The calculation differs based on the kind of prescription.
- It is determined by the maximum sentence prescribed for the crime (Article 109 of the Criminal Code).
- After the statement: Regard the sentence as successfully put into practice.
- Article 109 of the Brazilian Criminal Code sets out the time limits for prescription, which are determined based on the severity of the sentence imposed for the crime.
- In twenty years, if the highest punishment exceeds twelve.
- In sixteen years, if the highest punishment is more than eight years but less than twelve.
- In twelve years, if the highest punishment is more than four years but less than eight.
- In eight years, if the highest punishment is more than two years but not more than four.
- In four years, if the maximum penalty is one year or more but does not exceed two.
- If the highest punishment is under one year, it will be three years.
- In two decades, if the highest punishment exceeds twelve years.
- In sixteen years, if the highest punishment is more than eight years but does not exceed twelve.
- In twelve years, if the highest punishment is more than four years but less than eight.
- IV – within eight years, if the highest punishment is more than two years but less than four.
- In four years, if the maximum penalty is one year or less, or if it is more, does not exceed two.
- In three years, if the highest punishment is less than one year.
Which crimes have no statute of limitations?
- Racial discrimination.
- Grave offenses, drug dealing, cruelty, and terrorism.
- Armed groups acting against the constitutional order and the democratic state.
What is the term used for criminal statute of limitations?
The time limits range from 3 to 20 years, depending on the severity of the crime’s maximum penalty (Art. 109 of the Criminal Code).
What factors can disrupt the statute of limitations in criminal cases?
They are procedural actions that reset the deadline for filing a claim, such as receiving the complaint, issuing a ruling, and delivering the sentence.
What does retroactive prescription mean?
What is the lawyer’s function in the criminal statute of limitations?
The lawyer evaluates specified time limits, identifies potential obstacles, and uses legal tactics to ensure that the time limit is acknowledged when necessary, safeguarding the client’s rights.
