With the arrival of the year-end holidays, the annual publication of the presidential pardon also approaches—an important measure within Criminal Law and the Law of Sentence Enforcement.
This article briefly explains what the presidential pardon is, how it works, its legal limits, and who may qualify for the benefit.
What Is the Presidential Pardon?
Under Article 84, XII of the Federal Constitution, the President of the Republic has the authority to grant pardons and commutations of sentences.
The presidential pardon is a collective act of clemency, formalized by presidential decree—traditionally issued around Christmas—that may extinguish all or part of a sentence imposed on convicted individuals who meet the criteria established in the decree.
Legal Restrictions on the Pardon
The Hedious Crimes Act (Law No. 8,072/1990), in Article 2, prohibits the granting of pardon, amnesty, or clemency to individuals convicted of:
- heinous crimes;
- torture;
- drug trafficking;
- terrorism.
In addition, various annual pardon decrees typically exclude other categories of offenses, such as:
- sexual crimes;
- corruption of minors;
- money laundering;
- criminal organizations and militias;
- racism, slavery, and human trafficking;
- genocide;
- crimes against the National Financial System;
- crimes related to public procurement or public contracts;
- crimes committed by public officials against the public administration (e.g., embezzlement);
- environmental crimes;
- abuse of authority;
- femicide;
- stalking;
- domestic violence;
- crimes against the Democratic Rule of Law.
The precise exclusions depend on the decree published each year.
How Is the Pardon Granted?
The pardon is not applied automatically.
After the annual decree is published, the convicted person—through counsel—must file a petition before the Criminal Execution Court, demonstrating that all requirements have been met.
The benefit is only granted after:
- individualized judicial review;
- verification of statutory compliance;
- a court decision recognizing the right to the pardon.
Once granted, the sentence is declared extinguished, in full or in part, according to the decree.
What Are the Effects of the Pardon?
According to STJ Precedent 631:
“The pardon extinguishes the primary effects of the conviction (the enforceability of the sentence), but does not eliminate secondary penal or extrapenal effects.”
In practical terms:
- the beneficiary does not regain the status of a first-time offender;
- criminal records remain for purposes of recidivism and background checks;
- the pardon does not eliminate civil obligations, such as damages;
- the effects of the conviction remain valid for future proceedings.
Thus, the pardon terminates the execution of the sentence but does not erase the other legal consequences of the conviction.
Conclusion: The Attorney’s Role in Obtaining the Pardon
Obtaining the presidential pardon requires a thorough review of the annual decree and an individualized assessment of each case. For this reason, the assistance of a specialized attorney is essential to correctly identify legal eligibility, assemble the appropriate documentation, and prepare a solid and well-founded petition.
Qualified legal guidance minimizes the risk of denial due to formal deficiencies and ensures that the convicted individual’s rights are fully protected.
