The Latin expression reformatio in melius designates the procedural institute that allows the ad quem court to reform a judicial decision to favor the legal situation of the appellant—or the defendant, in criminal matters—even if there is no express request to that effect or if the appeal was filed exclusively by the opposing party. Predominant in Criminal Procedural Law under the aegis of the favor rei principle, its application aims to ensure the prevalence of material justice and strict legality over procedural formalism.
1. Definition, Concept, and Legal Nature
Reformatio in melius (reform for the better) consists of the possibility for the second-instance jurisdictional body, when analyzing an appeal, to alter the appealed decision for the benefit of the accused or the appellant, exceeding the strict cognitive limits set by the grounds of the appeal. In Criminal Procedural Law, it manifests when the court, faced with an appeal (whether from the defense or the prosecution), identifies a nullity, a cause for extinction of punishability, or a circumstance that mitigates the sanction, applying it ex officio.
Regarding its legal nature, it is an exceptional principle to the devolutive effect of appeals. While the maxim tantum devolutum quantum appellatum limits the court's action to the challenged matter, reformatio in melius acts as a safeguard clause for freedom and legality, allowing the Judiciary not to remain silent in the face of flagrant illegalities that harm the status libertatis or fundamental rights of the party.
2. Historical Origin and Evolution
Historically, the institute dates back to Roman Law and the evolution of the appellate system, where the maxim reformatio in pejus non est permittenda (reform for the worse is not permitted) was consolidated. The logical evolution of this impediment led to the acceptance of reform for the better. In the classical inquisitorial system, the search for "real truth" allowed the judge wide freedom, but it was with the advent of the accusatory system and constitutional guarantees that reformatio in melius gained the contours of an individual guarantee.
In Brazil, the 1941 Code of Criminal Procedure, of fascist inspiration (Rocco Code), had more authoritarian features, but doctrine and jurisprudence, under the influence of the 1988 Federal Constitution, consolidated the understanding that the State cannot maintain an illegal conviction or sentence under the pretext of a lack of specific challenge, prioritizing the dignity of the human person.
3. Legal Provision and Normative Foundation
The foundation of reformatio in melius is extracted from systematic interpretations and express provisions:
- Code of Criminal Procedure (CPP), Art. 617: The article expressly prohibits reformatio in pejus in an appeal exclusively by the defense ("the court [...] may not, however, aggravate the sentence imposed by the appealed decision"). By a contrario sensu interpretation and in compliance with the principle of legality, reform for the better is admitted.
- Code of Criminal Procedure (CPP), Art. 654, § 2º: Authorizes judges and courts to grant habeas corpus orders ex officio whenever they verify that someone is suffering or is in imminent danger of suffering illegal coercion. This is the main procedural vehicle for reformatio in melius.
- Federal Constitution, Art. 5, item LXVIII: Grounds the protection against judicial illegalities that restrict freedom.
- Code of Civil Procedure (CPC/2015), Art. 485, § 3º and Art. 1.013, § 1º: In the civil sphere, although the disposition principle is more rigid, matters of public order can be recognized ex officio (translative effect), which can result in a beneficial reform for the party regardless of a request, resembling the institute.
4. Practical Application and Consolidated Jurisprudence
The most debated application occurs when the appeal is exclusively from the prosecution. The majority doctrine and the jurisprudence of the Superior Courts admit that, even in an appeal by the Public Prosecutor's Office seeking to increase the sentence, the court may, when analyzing the case files, reduce the penalty or acquit the defendant if it finds an illegality.
Understanding of the Supreme Federal Court (STF)
The STF consolidated, through Habeas Corpus 106.113, the understanding that "reformatio in melius is possible in an appeal exclusively by the prosecution." The reasoning lies in the fact that the court cannot be compelled to maintain an illegality. The duty to state the law (juris dictio) according to the Constitution overrides the accusatory interest.
Understanding of the Superior Court of Justice (STJ)
The STJ follows the same line, applying the institute frequently in cases of sentencing dosimetry. According to AgRg in AREsp 2.164.477/SP (2023), the Court reiterated that the prohibition of reformatio in pejus does not prevent the court from improving the defendant's situation ex officio, since the devolutive effect of the appeal allows for broad knowledge of the case in favor of the defense.
STF Precedent (Súmula) 160
Although it deals with nullity, Súmula 160 ("A court decision that accepts, against the defendant, a nullity not argued in the prosecution's appeal is void, except in cases of ex officio appeal") reinforces, by reverse symmetry, that the court has the freedom to recognize nullities that favor the defendant, even without provocation.
5. Related Principles and Doctrinal Divergences
The institute dialogues with the following principles:
- Principle of Favor Rei: In case of doubt or conflict of norms, the interpretation most favorable to the accused must be applied.
- Principle of Legality: It is not permitted to maintain a sentence that violates legal parameters, even due to an error by the defense in the appeal brief.
- Translative Effect of Appeals: It is the aptitude of certain appeals to allow the court to know matters of public order, regardless of provocation.
Divergence: There is a minority current that maintains that reformatio in melius in an appeal exclusively by the prosecution would violate the accusatory system and jurisdictional inertia. They argue that the court would be acting as a "defender" of the defendant. However, such a thesis is rejected by jurisprudence, which understands the judge as a guarantor of fundamental rights, and not a mere procedural spectator.
6. Contemporary Relevance and Practical Impacts
In the current legal scenario, marked by prison overcrowding and the recognition of the "Unconstitutional State of Affairs" of the prison system (ADPF 347), reformatio in melius assumes a vital role. It allows for the swift correction of injustices without the need for filing a Criminal Revision or new Habeas Corpus, favoring procedural economy and the effectiveness of Criminal Law as ultima ratio.
Furthermore, with the implementation of the Guarantee Judge and the strengthening of the accusatory model, the separation of the functions of accusing and judging does not prevent—but rather requires—that the judging body acts as a filter of legality, ensuring that no one receives a sanction greater than that strictly authorized by the current legal order.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, item LXVIII.
- BRAZIL. Decree-Law No. 3.689, of October 3, 1941 (Code of Criminal Procedure). Articles 617 and 654, § 2º.
- BRAZIL. Law No. 13.105, of March 16, 2015 (Code of Civil Procedure). Articles 485 and 1.013.
- SUPREME FEDERAL COURT. Habeas Corpus No. 106.113/MT. Rapporteur: Justice Cármen Lúcia. Judged on 02/08/2011.
- SUPERIOR COURT OF JUSTICE. Internal Interlocutory Appeal in Special Appeal No. 2.164.477/SP. Rapporteur: Justice Reynaldo Soares da Fonseca. Judged on 03/13/2023.
- SUPREME FEDERAL COURT. Precedent (Súmula) No. 160.
