Processo nº 2004.61.06.004897-4 18682
Justiça Federal – Seção Judiciária de São Paulo – 6º Subseção Judiciária – Fórum de São José do Rio Preto – 2ª Vara [Federal Justice – Judiciary Section of São Paulo]
São José do Rio Preto
Reference: Processo nº 2004.61.06.004897-4
Tribunal Regional Federal da 3ª Região, Quinta Turma [Appelate Court]
São Paulo, São Paulo
Reference: Processo nº 2004.61.06.004897-4 ACR 18682
Víctima / Demandantes de primera instancia
Acusado / Demandado de primera instancia
resumen de los hechos
The defendants Maria Ivoneide, Jorge Alberto and Claribel Cardoso were arrested in flagrante delicto, while tried to board the victims M.F.A., N.M.M., S.R.O. and K.C.S. to a bus going to the International Airport of Guarulhos, São Paulo, where the victims would catch a flight with the destiny to Las Palmas, Spain, where the victims would work as prostitutes at the establishment owned by Margarita Domingues.
Penal Code, article 231 combined with article 14, II
Tráfico internacional de pessoa para fim de exploração sexual
Art. 231. Promover ou facilitar a entrada, no território nacional, de alguém que nele venha a exercer a prostituição ou outra forma de exploração sexual, ou a saída de alguém que vá exercê-la no estrangeiro.
Pena - reclusão, de 3 (três) a 8 (oito) anos.
§ 1o Incorre na mesma pena aquele que agenciar, aliciar ou comprar a pessoa traficada, assim como, tendo conhecimento dessa condição, transportá-la, transferi-la ou alojá-la.
§ 2o A pena é aumentada da metade se:
I - a vítima é menor de 18 (dezoito) anos;
II - a vítima, por enfermidade ou deficiência mental, não tem o necessário discernimento para a prática do ato;
III - se o agente é ascendente, padrasto, madrasta, irmão, enteado, cônjuge, companheiro, tutor ou curador, preceptor ou empregador da vítima, ou se assumiu, por lei ou outra forma, obrigação de cuidado, proteção ou vigilância; ou
IV - há emprego de violência, grave ameaça ou fraude.
§ 3o Se o crime é cometido com o fim de obter vantagem econômica, aplica-se também multa.
International Trafficking in person for the purpose of sexual exploitation
Art. 231. To promote or to facilitate the entry in the national territory, for someone who will exert the prostitution or other form of sexual exploitation, or the output of someone who will exercise it abroad.
Penalty: imprisonment of 3 (three) to 8 (eight) years.
§ 1 The penalty is also applied for those which recruit, entice or buy the trafficked person, as well as, those which having knowledge of this condition, transport, transfer or host the trafficked person.
§ 2 The penalty is increased by half if:
I - the victim is a minor of 18 (eighteen) years;
II - the victim, by illness or mental disability, does not have the necessary discernment for the practice of the act;
III - if the agent is ascendant, stepfather, stepmother, brother, stepson, spouse, companion, tutor or curator, preceptor or employer of the victim, or if he assumed, by law or otherwise, obligation of care, protection or surveillance; or
IV - there are employment of violence, serious threat or fraud.
§ 3 If the crime is committed in order to obtain economic benefit, a fine is also applied.
Art. 14 - Diz-se o crime:
I - consumado, quando nele se reúnem todos os elementos de sua definição legal;
II - tentado, quando, iniciada a execução, não se consuma por circunstâncias alheias à vontade do agente.
Pena de tentativa
Parágrafo único - Salvo disposição em contrário, pune-se a tentativa com a pena correspondente ao crime consumado, diminuída de um a dois terços
Art. 14 – It is said crime:
I – consummated when all the elements of the crime presented in its legal definition occurs.
II- tempted when, although the execution is initiated, the crime is not consummated by circumstances beyond the control of the agent.
Penalty of attempt
Single paragraph- Unless otherwise provided, the attempt is punished with the penalty of the correspondent consummated crime, reduced by one to two thirds.
Penal Code, article 288
Quadrilha ou bando
Art. 288 - Associarem-se mais de três pessoas, em quadrilha ou bando, para o fim de cometer crimes:
Pena - reclusão, de um a três anos.
Parágrafo único - A pena aplica-se em dobro, se a quadrilha ou bando é armado.
Cuadrilha or gang
Art. 288 – The joint of more than three people, in cuadrilha or gang, for the purpose of committing crimes:
Penalty: imprisonment one to three years.
Single Paragraph - The penalty increases twice, if the cuadrilha or gang is armed.
The Judge decided that the evidence gathered was enough to prove effectively the materiality and authorship of the criminal offenses.
The defendants appealed postulating that their acts performed by them characterize mere preparatory acts, which would make the conducts atypical.
The Court denied the criminal appeal. It was deliberated that the materiality and authorship of the criminal offenses had been proven by not only by the report of the arrestment, but also by the testimonies of the victims and by the interrogatory of the defendant Daniela Civitate. The documents and manuscripts found in the possession of the defendant João Alberto show that he had a connexion with the girls who would work as prostitutes in Spain.
The defendants Jorge, Claribel and Maria Ivoneide communicate by phone with the victims several times before their arrestment, which confirm that they were involved with the preparations for the trip, revealing their association to commit the delicto of international trafficking in person for the purpose of sexual exploitation.
The Court considered that the purpose for profit was proved by the testimony of the victim K.C.S., who said that the defendant Jorge mentioned to her that the gains from the prostitution would be shared in the ratio of 50%. The statements of the defendant Daniela Gama and of the witness Dejanira Lopes Leite corroborate with what had been said by the victim K.C.S.
The Court also noted that the argument of the defendants that their acts were only preparatory could not prosper. The Court considered that the execution of the crime began when the defendants Claribel and Maria Ivoneide took the victims to the place where they would take the bus to the International Airport of Guarulhos, São Paulo. Thus, once the execution of the criminal conduct initiated, the consummation of the crime did not happen only because the execution was interrupted by circumstances beyond the control of the agents, which was the arrestment by the Police.
The association to commit the crime of international trafficking in person for the purpose of sexual exploitation involved not only the defendants Jorge Alberto, Claribel Cardoso and Maria Ivoneide, but also the Spanish Margarita Victória, who, although not denounced, had her participation mentioned at the initial accusatory and at the sentence. Present more than three people for the purpose of committing the crime it is characterized the organized criminal group.
The defendant Maria Ivoneide dos Santos filled a declaration motion, in the terms of the articles 619 and 620 of the Penal Procedure Code, claiming that the decision of the Second Instance was contradictory and silent. The contradiction concerns the fact that the victims were accompanied only by Jorge; that the content of the telephone calls was not investigate and that no tickets were found in the possession of the defendants. With regards to the crime of organized criminal group, the defendant argues that once the stability or permanency is essential, it would be necessary that Margareth had been denounced. Also claims that since it is not admitted the crime of gang when one of the members is acquitted, with much more reason it shouldn´t be admitted the crime when one of the members was not even denounced.
The Court rejected the declaration motion, once it is inadmissible, through this type of motion, the review of the appellate merits. The defendant clearly intended to rediscuss questions already decided in the process, which it is not in accordance to the terms of the articles 619 and 620 of the Penal Procedure Code.
The Court noted that it is irrelevant the fact that only the defendant Jorge was found together with the victims inside the bus of the company Viação San Raphael, once the execution of the crime had already initiated when the defendants Claribel and Maria Ivoneide took the victims to the place where they would catch the bus. The Court also considered that the evidence gathered clearly characterize the attempt of international trafficking in person for the purpose of sexual exploitation, being irrelevant the fact that no tickets were found with the defendants.
The Court pointed out that with regard to the defendant Maria Ivoneide, she made 13 calls to Jorge, 32 for Claribel, and received several phone calls from Jorge. These facts reveal a strong link between them being needless the knowledge of the content of each phone call, since there were present others evidences, such as documents and cash found with the defendant Jorge when he was arrested, as well as the testimonies of the victims and witnesses, proving that the defendant Maria Ivoneide were part of the organized criminal group for the purpose of international trafficking.
The Court considered that at the decision of the criminal appeal it was clear that it is possible to condemn the defendants for the organized criminal group, even though one of the members was not denounced. It remained also clear that the fact that one of the defendants have been acquitted would not have the power to lead the acquittal of others, since it had been proven the existence of four members, even if one has not been denounced. Therefore, the Court upheld the decision to sentence the defendants under the article 288 of the Penal Code for organized criminal group, once it was proven the existence of another member of the societas sceleris, Margarita Victória, who could not be denounced.
Processo nº 2004.61.06.004897-4 ACR ED 18682