Habeas corpus in the fine penalty

Abstract

With the advent of Law 9,268/96, which repealed art. 51 of the Criminal Code, removing the conversion of the fine penalty into deprivation of liberty, the Supreme Federal Court recently issued two unanimous decisions dismissing habeas corpus actions filed against convictions to the fine penalty, on the argument that there is no threat to freedom of movement. After a synopsis of its historical evolution, we argue that today habeas corpus has acquired a broad scope, where the hypotheses of its admissibility have been the most varied, almost always supported by the lack of just cause. Contrary to those decisions of the Supreme Court, we seek to demonstrate that the mandamus is admissible even against the fine penalty, since it constitutes a potential, possible or probable restriction of freedom of movement. We brought case law demonstrating that, in light of Law 9,268/96, the fine penalty has not lost its character as a criminal sanction, with all other effects arising from a conviction remaining. As for the application of the institutes of the Special Courts Law, we compiled decisions in various directions, with the understanding that the fine penalty prevents the conditional suspension of proceedings, thus raising the possibility of imposing, at least in theory, a deprivation of liberty penalty. Possible effects of the fine penalty on the offering of the penal transaction were also analyzed. Finally, we gathered headnotes from the STF itself, and also from the STJ, in which habeas corpus was granted to declare the punishment extinguished in convictions to the fine penalty due to the occurrence of prescription. For this further reason, we conclude that there is no reason for not granting habeas corpus against the fine penalty, when any other hypothesis of illegal constraint is present.