What is prescription?
Prescription consists in the loss of the State’s right to punish the author of a crime for his act, since there was no judicial action within the legal period stipulated by law. This concept is usually associated with Criminal Law and Civil Law, as a way of regulating the activation of justice.
When someone commits an unlawful act that violates the rights of others, there is a period of time, starting from the moment the injured individual became aware of his violated right, for justice to be triggered in order to punish the alleged offender.
In short, the State, according to the law, must investigate, prosecute, convict and execute a penalty for someone within a previously established period of time. If this time expires and the State is unable to complete the process, without giving reasons for the reason, the right to punish the individual who was the target of the process becomes extinct.
In Civil Law, as established in article 189 of the Civil Code and mentioned above, the statute of limitations is defined as the loss of the intention to request a punitive judicial action from the State when this is requested after a long period of time since the right was violated.
Criminal statute of limitations can be divided into two main types: statute of limitations on punitive claims (before the sentence) and statute of limitations on enforceable claims (after the sentence).
In the case of prescription of punitive claim, the statute of limitations depends on the abstract penalty (not yet confirmed), that is, taking into account the maximum penalty for the respective crime, as regulated by article 109 of the Penal Code:
- if the sentence in abstract is superior to 12 years, the prescription will occur in 20 years;
- if the penalty is more than 8 years and less than 12 years, the statute of limitations will be 16 years;
- if the penalty is more than 4 years and less than 8 years, the statute of limitations will be 12 years;
- if the penalty is more than 2 years and less than 4, the statute of limitations will be 8 years;
- if the penalty is from 1 to 2 years, the statute of limitations will take place in 4 years;
- if the penalty is less than 1 year, the statute of limitations will take place in 3 years.
After the delivery of the sentence, it may prescribe if there is a delay in the execution of the sentence and if it is in accordance with the conditions set out in article 110 of the CP: intercurrent prescription and retroactive prescription.
The intercurrent prescription is based on article 109 of the CP to determine the statute of limitations. In other words, if someone has been sentenced to 2 years, the penalty will expire if more than 8 years have elapsed between the conviction and its final judgment.
The retroactive statute of limitations acts when there is a res judicata, taking into account the penalty defined in the sentence to provide for the statute of limitations. Based on the example mentioned above, if 8 years elapse between the receipt of the complaint and the final decision, the State loses the right to punish the accused.
According to article 107 of the Brazilian Penal Code, there are still other situations that can extinguish punishment:
Art. 107 – Punishment is extinguished:
I – for the death of the agent;
II – by amnesty, grace or pardon;
III – by the retroactivity of the law that no longer considers the fact as criminal;
IV – by prescription, decadence or peremption;
V – for the waiver of the right of complaint or for the accepted pardon, in the crimes of private action;
VI – by the agent’s retraction, in cases where the law allows it;
VII – (Repealed by Law No. 11,106 of 2005)
VIII – (Revoked by Law No. 11,106 of 2005)
IX – For judicial pardon, in the cases provided for by law.
If the conviction is only a fine, it will expire in 2 years, according to article 114 of the CP.
Another caveat is the fact that the statute of limitations is reduced by half if the offending agent, at the time the crime was committed, was under 21 years old, according to the text provided for in article 115 of the Penal Code.
Prescription does not occur in the following cases:
- between the spouses, in the constancy of the conjugal society;
- between ascendants and descendants, during family power;
- between tutors or curators and their tutors or curators, during the tutelage or curatorship;
- against the incapable (see topic Civil Disability);
- against those absent from the country in public service of the Union, States or Municipalities;
- against those who find themselves serving in the Armed Forces in time of war;
- action by armed groups against the constitutional order and the democratic rule of law;
- crimes of racism.
Difference between Prescription and Decay
When someone’s right is violated, that person’s pretension is born to take legal action so that the agent violating the right is punished for such an act, according to the law. However, the claim is extinguished by prescription if a certain period of time has passed and the holder has not taken legal action.
Decay is often confused with Prescription in Law. The difference lies in the fact that decay represents the extinction of the right after the expiration of the period provided for by law, while the prescription refers to the claim, that is, the power to demand from another person, under court, a benefit. In short, Decay consists of the loss of a right for not exercising it for a certain period of time.
List of Acronyms Related to Prescription