Transferência da execução da pena: uma análise da aplicabilidade do instituto para brasileiros natos condenados no exterior à luz do caso Robinho

Abstract

Nowadays, people find it very easy to move from one country to another, which can make it difficult for states to exercise jurisdiction in the criminal sphere. In this context, various individuals can use this device to evade their disputes with the courts of a given country. Brazil, as a signatory to various international treaties and holder of a constitutional text, is increasingly committed to promoting human rights and combating international impunity. As such, international legal cooperation in criminal matters has been given great importance in the Brazilian legal system, especially with the advent of Law 13.445/2017 (Migration Law). Although it is a major step forward in the fight against international impunity, the Migration Law still raises several questions about the legal nature of its rules and in which cases its institutes can be applied. In view of this, the conviction of Robson de Souza, together with the homologation of the foreign sentence to transfer the execution of the sentence (TEP) imposed by the Italian justice system, led to a series of debates about the applicability of the TEP for native Brazilians convicted abroad and the possibility of applying the rules of Law 13.445/2017, according to their legal nature. In this sense, this work, based on doctrinal opinions and a case study, deals with international legal cooperation in criminal matters, analyzing, mainly, whether the transfer of the execution of the sentence can be applied to native Brazilians sentenced abroad, with reference to the Robinho case. This will be done by investigating the provisions of the Migration Law and its nature, checking the arguments used by the parties in the request for homologation of the criminal sentence by the Italian government and the existence of a treaty or promise of reciprocity between Brazil and Italy, in order to allow the TEP. In this way, it will be verified whether the transfer of the execution of the sentence can be the solution for cases such as Robinho's, given that the Federal Constitution enshrines the principles of the inextraditability of natural-born Brazilians and the non-retroactivity of new, more onerous criminal laws.