Understand the steps of the Robinho case and the possibility of serving the sentence in Brazil

Ultimately sentenced by the Italian court to nine years in prison for gang rape, Robinho is in Brazil, which does not extradite native Brazilians. Therefore, unless traveling to Italy or one of the countries that have an extradition agreement with Italy, the player will not serve his sentence in the country where the crime, according to Italian Justice, was committed in 2013.

The next step in the case is the publication of the sentence, 30 days after the trial on Wednesday (19). Then, as the athlete is not in Italy – just like his friend Ricardo Falco, also convicted –, the Italian judicial system will be able to formalize a request to the Brazilian for the execution of the sentences to take place in Brazil.

This possibility is presented in the Migration Law (13.445/17) of Brazil, which provides for the transfer of the sentence in cases where extradition is not possible. However, the attacker’s lawyers and the experts interviewed by the report see the possibility of this transfer being carried out as unlikely.

According to what is established in the legislation, the request would be received by the STJ (Superior Court of Justice), which would analyze compliance with the requirements. Some of these requirements are clearly met, such as regular service of process, legal proceedings and similarity in laws – that is, what is a crime in another country is also a crime in Brazil.

Where the transfer of the sentence may come up against is an excerpt from the judicial cooperation agreement between Brazil and Italy, signed in 1989 and modified in 1993. The agreement between the countries explicitly establishes that “the cooperation will not include the execution of measures that restrict personal freedom nor the execution of sentences”.

According to André Ramos Rocha e Silva, a lawyer specializing in criminal law, the 2017 Migration Law “does not deviate from the dictates of article 9 of the Penal Code”. “Brazil and Italy do not have a treaty or promise of reciprocity for the execution of a custodial sentence, an objective requirement of article 100, sole paragraph, item V”, he said.

The aforementioned article of the Penal Code establishes the conditions for the ratification of foreign judgments in Brazil. There are those who see all the requirements fulfilled, such as lawyer Davi Tangerino, a specialist in criminal law heard by SporTV, but Robinho’s lawyers told him that the risk is minimal.

If the STJ understands that the sentence should not be ratified, the process can be reopened from scratch in Brazil. Then the case will be referred to the first instance, where all the evidence will be re-examined and there will be ample space for defense again. This is what Hindenburg Chateaubriand Filho, Deputy Attorney General of the Republic, is betting on.

“The most likely possibility is that Italy forwards the entire process here. Then we would analyze the entire process and the evidence produced to verify what could be used,” the prosecutor told Folha.

“It starts from scratch, in an action proposed by a prosecutor of the Republic. As it comes from outside, this becomes the Federal Court. But everything has to be redone in Brazil, with the right of defense. Up front, with the statute of limitations running, will be tried and can be sentenced in Brazilian Justice. Only then would we have a valid conviction in Brazil for him”, added Chateaubriand.

Prescription counting, experts note, would not be straightforward. There are provisions in the legislation that provide for the interruption of counting, complicated by the fact that a trial took place outside the country. According to Aline Prata Fonseca, a specialist in criminal law and criminal procedure, there would be a need for an “analogy of dates”.

“As his sentence is nine years, according to our legislation, when the sentence is eight to 12 years, the crime prescribes in 16 years. But there are milestones that interrupt this prescription, such as the prescription date, for example”, observed the lawyer. . On the count of 16 years, the statute of limitations would take place in 2029.

For now, while the Italian Justice does not publish the sentence and does not contact the Brazilian judiciary asking for the transfer of the sentence, Robinho must remain in Brazil. He cannot go to Italy, where he would be arrested, nor to the signatory countries of the European convention on extradition, the nations of the European Union.