Henry Borel case: understand what the judicial pardon granted to Monique is

The decision that ended the trial of the Henry Borel case brought a different outcome for Monique Medeiros. Although the Sentencing Council recognized his responsibility for torture by omission and downgraded the charge from intentional homicide to manslaughter, Henry's mother received a judicial pardon, a legal institution that removes the application of the penalty even after the crime has been recognized.

The measure was applied by judge Elizabeth Machado Louro during the reading of the sentence, in the early hours of this Thursday (4), after 11 days of trial at the II Rio de Janeiro Jury Court. Monique was sentenced to 1 year and 4 months in detention, but the judge ruled that there was no reason to impose additional punishment.

What is judicial pardon
Judicial pardon is an institute provided for in Brazilian criminal legislation in article 121, § 5, of the Penal Code, which authorizes the magistrate to stop applying the penalty even after recognizing the commission of a criminal offense.

This is an exceptional hypothesis in which the State recognizes the existence of the crime and the responsibility of the agent, but concludes that the consequences resulting from the act itself have already produced sufficiently serious effects to make the imposition of a criminal sanction unnecessary.

For this reason, judicial pardon cannot be confused with absolution. The sentence continues to recognize the occurrence of the crime and the participation of the accused, but removes the punitive effects of the conviction.

Why was the benefit applied to Monique?
When delivering the sentence, judge Elizabeth Machado Louro understood that the personal and social consequences suffered by Monique Medeiros over the last five years exceeded the purpose that would be achieved by the criminal penalty.

In her reasoning, the judge highlighted the loss of her only son, the national repercussion of the case, the attacks suffered during the period in which she was imprisoned and the intense public scrutiny to which she has been subjected since the death of Henry Borel.

According to the judge, the accused was the target of a disproportionate social reaction, heightened by expectations culturally attributed to the maternal role. For the judge, all of these consequences would already represent a sufficiently severe response from a personal and social point of view.

Effects of the decision
Although it removed the application of the sentence, the sentence did not eliminate Monique's criminal liability. The Sentencing Council dismissed the accusation of intentional homicide and promoted the downgrading of the charge to culpable homicide. Due to judicial pardon, the conviction no longer produces enforceable effects, ending the state's punitive claim in relation to the convicted person.

In addition, there was recognition of the practice of the crime of torture by omission, an understanding according to which the mother failed to act to prevent the attacks suffered by the child. However, the penalty imposed for the crime of torture by omission will also not result in a new period of imprisonment, since the time in pre-trial detention already served by Monique was considered sufficient to comply with the sanction set out in the sentence.

Decision can still be appealed
Despite ending the trial in the first instance, the sentence does not prevent the parties from lodging appeals.

The Public Prosecutor's Office and prosecution assistance may question aspects such as the disqualification of intentional homicide, the recognition of the theses accepted by the Sentencing Council and the granting of judicial pardon itself. Likewise, the defense can challenge remaining points of the conviction.

Eventual appeals will be analyzed by the Court of Justice of Rio de Janeiro, observing the limits imposed by the constitutional principle of the sovereignty of verdicts, which grants special protection to decisions handed down by the Jury Court.

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Source: CNN