Sursis, or conditional suspension of sentence, is a Criminal Law institute that consists of suspending the execution of a custodial sentence for a specific period (probation period), provided that the convicted person complies with certain legal conditions. Situated within the scope of sentencing theory, its primary purpose is to avoid short-term incarceration for first-time offenders and those of low dangerousness, promoting resocialization without the stigma and deleterious effects of the prison system.
1. Definition, Concept, and Legal Nature
The institute of sursis (a term derived from the French surseoir, meaning to stay or suspend) is the temporary suspension of the execution of a custodial sentence imposed in a conviction. During the so-called probation period, the effectiveness of the sanction is conditioned upon the fulfillment of objective and subjective requirements by the sentenced individual.
Regarding its legal nature, the majority of Brazilian doctrine, following the understanding of jurists such as Damásio de Jesus and Cezar Roberto Bitencourt, defines sursis as a subjective right of the defendant, rather than a mere discretion of the magistrate. Once the legal requirements provided for in Art. 77 of the Penal Code are met, the judge has a duty to grant it. It is also classified as an alternative measure to imprisonment, inserted in the context of the criminal policy of decarceration.
2. Historical Origin and Evolution
Historically, sursis has two fundamental matrices: the Anglo-American system (probation system), of customary origin, and the continental European system (Belgian-French). The Belgian model, instituted by the Law of March 25, 1888, and the French model, by the Bérenger Law of 1891, directly influenced the Brazilian legal system.
In Brazil, the conditional suspension of the sentence was introduced by Law No. 2,040 of 1924 and consolidated in the 1940 Penal Code. With the 1984 Penal Reform (Law No. 7,209/84), the institute was expanded and subdivided into modalities (simple, special, age-based, and humanitarian), seeking greater individualization of the sentence and adaptation to resocialization needs.
3. Legal Provision and Modalities
The legal basis for sursis is found in articles 77 to 82 of the Brazilian Penal Code (CP) and in articles 156 to 163 of the Penal Execution Law (Law No. 7,210/84 - LEP). For its granting, the cumulative fulfillment of requirements is required:
- Objective Requirements: Custodial sentence not exceeding 2 years (general rule); substitution by restrictive rights penalties (Art. 44 of the CP) must not be applicable.
- Subjective Requirements: The convicted person must not be a repeat offender in an intentional crime; culpability, background, social conduct, and personality of the agent, as well as the motives and circumstances, must authorize the granting.
Modalities of Sursis:
- Simple Sursis (Art. 78, § 1, CP): In the first year of the probation period, the convicted person must perform community service or submit to weekend confinement.
- Special Sursis (Art. 78, § 2, CP): Applicable if the convicted person has repaired the damage (unless impossible) and judicial circumstances are entirely favorable. Conditions are milder, such as a prohibition on frequenting certain places and monthly court appearances.
- Age-based Sursis (Art. 77, § 2, CP): For convicted persons over 70 years of age, suspension may occur if the sentence does not exceed 4 years, and the probation period is 4 to 6 years.
- Humanitarian Sursis (Art. 77, § 2, CP): Applicable when the convicted person's health reasons justify the suspension, following the same sentence and duration thresholds as the age-based sursis.
4. Practical Application and Consolidated Jurisprudence
The application of sursis is subsidiary. According to Art. 77, item III, of the Penal Code, the magistrate shall only grant the conditional suspension of the sentence if the substitution for restrictive rights penalties (PRD) is not indicated, as these are considered less burdensome to the sentenced individual.
The Superior Court of Justice (STJ) and the Supreme Federal Court (STF) have consolidated understandings on related topics:
- STF Súmula 499: "Community service, as a condition for conditional suspension of the sentence, cannot be imposed for a period longer than the suspended sentence."
- STJ Súmula 641: Reiterates that prior hearing of the convicted person is not required for the extension of the probation period due to non-compliance with conditions, although revocation depends on adversarial proceedings.
- Nature of the Condition: STJ jurisprudence prohibits the imposition of conditions not provided for by law that offend human dignity or constitute an autonomous penalty without legal provision.
5. Related Principles and Doctrinal Divergences
The institute is governed by the principles of Minimum Intervention and Humanity of Penalties. The main doctrinal divergence lies in the distinction between penal sursis (Art. 77, CP) and procedural sursis (Art. 89 of Law No. 9,099/95). While the former presupposes a conviction and the suspension of the execution of the sentence, the latter occurs before the sentence, suspending the process itself.
Another point of debate refers to the mandatory nature of the admonitory hearing. Part of the doctrine and jurisprudence understands that the defendant's absence from the admonitory hearing implies a tacit waiver of the benefit, authorizing the issuance of an arrest warrant for the fulfillment of the original sentence.
6. Contemporary Relevance and Impacts on the Legal System
In the current legal scenario, marked by the "Unconstitutional State of Affairs" of the Brazilian prison system (declared by the STF in ADPF 347), sursis reaffirms its importance as a mechanism for controlling prison overcrowding. However, its practical incidence has been reduced by the prevalence of restrictive rights penalties and, more recently, by the advent of the Non-Prosecution Agreement (ANPP), introduced by Law No. 13,964/2019 (Anti-Crime Package).
The ANPP, by allowing a consensual solution even before the filing of charges, ends up absorbing a large part of the cases that would previously culminate in the application of sursis. However, for crimes that do not allow for the agreement or in cases where the procedural instruction is carried out, sursis remains the last barrier against unnecessary incarceration, ensuring that the state's jus puniendi is exercised in a proportional and humanized manner.
Legal and Jurisprudential References
- BRAZIL. Decree-Law No. 2,848, of December 7, 1940 (Penal Code). Articles 77 to 82.
- BRAZIL. Law No. 7,210, of July 11, 1984 (Penal Execution Law). Articles 156 to 163.
- BRAZIL. Supreme Federal Court. Súmula 499.
- BRAZIL. Superior Court of Justice. Súmula 641.
- BITENCOURT, Cezar Roberto. Tratado de Direito Penal: Parte Geral. 26th ed. São Paulo: Saraiva, 2020.
