Once again, Brazilian Criminal Law suffers an irreparable loss—this time with the untimely passing of Professor Heleno Cláudio Fragoso. Irreparable because Heleno Fragoso’s scholarship represents the very pinnacle of rigorous thought produced in his field within this country. Undeniably, Heleno Fragoso helped write some of the finest pages in the history of Criminal Law. He combined remarkable talent with an uncommon intellect, dedication, and discipline with steady, methodical work, consistently guided by an unsurpassed rigor and seriousness. In no other way would such an important, valuable, and mature body of work have been possible. In the face of the transience of existence and human finitude, history is never definitively written, and the science of criminal law could be no exception. In 1943, Nelson Hungria, reflecting on the “Evolution of Brazilian Criminal Law,” noted that, from the 1920s onward, the discipline of criminal law had undergone a profound reconstruction following the scholarship of Galdino de Siqueira and, later, Costa e Silva. This trajectory, which had begun with Tobias Barreto, continued after those luminaries through Hungria himself, Roberto Lyra, and Aníbal Bruno—other irreparable losses to Brazilian Criminal Law. Outside Brazil, there has likewise been a long and gradual evolution of Criminal Law from the third century AD to the present day—from Binding’s positivism to Welzel and his followers in Germany, and from Carrara to critical criminal law theory in Italy. Professor Heleno Fragoso was undoubtedly an intellectual heir to all these great masters. He knew them with uncommon familiarity. His enduring lessons do not fear the passage of time, nor do they fear the future. They hold, and will continue to hold, singular significance within the nation’s legal culture. From them, the intellectual harvest will remain fruitful for a long time to come. His renown had crossed our country’s borders long ago, and the frequent citations of his teachings in foreign treaties clearly reflect the absolute recognition of his scholarly authority. His technical refinement and technical-legal approach did not turn him into a dogmatist burdened with irrefutable truths, nor into a positivist subservient to the system. The systematic study of the criminal law in force did not deter him from paying keen attention to law in its dynamic application. Let us hear his own words: “Today it is essential to move beyond the framework set by the technical-legal method, which merely aims to understand and justify the criminal law in force—a technique serving the supremacy and dominance of those who hold the power to legislate. The criminal law in effect is often flawed, profoundly repressive, and reactionary, embedding values of dubious relevance that serve only to perpetuate prejudice and privilege” (Lições, p. 13). A politically conscious jurist who suffered firsthand the unjust repression of the 1964 coup, Fragoso moved away from the retributivism evident in his earliest works. The teachings of Marc Ancel and Claus Roxin, among others, came to shape his intellectual concerns. As Heleno Fragoso noted: “Issues of criminal policy and the pursuit of a fairer, more egalitarian Criminal Law now take center stage as part of the State’s social policy—serving as an instrument through which the State implements means to achieve socially valuable ends.” As can be seen, Heleno Fragoso succeeded in moving beyond a reductive formal-legal approach, viewing Criminal Law as an integral part of the State’s social policy. Heleno Fragoso denounced the criminal justice system as unjust and oppressive, demonstrating that Criminal Law is merely a subsidiary tool in addressing crime, while unmasking its underlying ideology. His conception of punishment, developed in his final works, led him to identify a crisis within the criminal justice system, deeply influenced by the most modern criminological currents. He began to interpret the penal system critically, asserting that crime is fundamentally a socio-political phenomenon. In this sense, he engaged in politics in the highest sense of the word. His progressive political discourse consistently aimed at restoring the democratic rule of law. Heleno Fragoso fought tirelessly against what he termed the mystique of national security, “against the repressive apparatus characterized by arbitrariness and violence.” Nilo Batista, his inseparable companion for whom Heleno Fragoso held the highest admiration, had already demonstrated his widespread influence on Brazilian academic life when analyzing the trajectory of Fragoso’s thought in the 1950s and the “rejuvenated” thought of Professor Fragoso from the 1970s to the present.Yet, what is uncommon, the man of action walked alongside the theorist. To him we owe the success of the Revista de Direito Penal e Criminologia and the Instituto de Ciências Penais—now the Instituto Heleno Fragoso de Ciências Penais, in a well-deserved tribute paid to him by his peers. To him we owe the international stature of Brazilian Criminal Law, alongside Nelson Hungria, Roberto Lyra, and Aníbal Bruno. Ultimately, Brazil has lost a true scholar whose life was wholly devoted to the science of Criminal Law. His lucid studies will continue, for a long time to come, to teach future generations a Criminal Law grounded in rigorous technique and committed to the fundamental rights of the human person. It has been said that only in death is the true worth of a human being revealed. Heleno Fragoso needed no such posthumous accounting. He attained public recognition and success during his lifetime, and at a remarkably young age. If history is not definitively written, we must observe that it is neither successive nor unilinear, as taught by H. Focillon, but rather a superposition of presents. There are, therefore, “pasts” that remain “present,” just as there are elements of the present that, however persistently they endure, already belong to the past. Within the pages of Heleno Fragoso—ontological texts of Brazilian Criminal Law—we will long continue to find invaluable lessons. This is to say that Heleno Fragoso fulfilled his historical mission; he fulfilled his great academic calling in service of Brazilian culture. We, his colleagues from Universidade Candido Mendes, the Instituto de Ciências Penais, and the Revista de Direito Penal e Criminologia, mourn this immense loss and take pride in having had the privilege of working by his side.This issue of the Revista de Direito Penal e Criminologia was still prepared by Professor Heleno Cláudio Fragoso, featuring its customary sections. In the first of these, the doctrinal section, we find highly timely articles by Professor Heleno Fragoso on “The Reform of Penal Legislation” (a lecture he delivered on March 19, 1984, at the 6th Congress of Criminal Law and Related Sciences, held in Belo Horizonte) and “The New National Security Law.” Professor and Appellate Judge of Bahia, Gerson Pereira dos Santos, pays an expressive tribute to the master Raul Chaves, who passed away on February 1, 1983. Also in this section, we find important contributions by Professor José Faria Costa on the thorny issue of “Strict Liability” under Portuguese Criminal Law, and by Professor Nilo Batista on “The Constitutional Foundations of the Principle of Legality.” In Comments and Current Affairs, Professor Jorge Alberto Romeiro Jr. addresses “Procedure as a Source of Roman Criminal Law,” while Professor Afrânio Silva Jardim examines the delicate matter of the “Shelving and Reopening of Police Inquiries.” The current Vice President of the Brazilian National Group of the AIDP, Professor René Ariel Dotti, devotes his study to the offense of breaching the code of good manners. Also included here are works on “Structural and Institutional Violence in Capitalist Society and Crime,” by Professor Orlando Soares, and a study on “Dactyloscopy,” by Professor Moacyr Benedito de Souza. In addition to the book review, the reader will find case law comments on the controversial question of successive liability under the Press Law by Professor Nilo Batista, as well as a commentary by Professor Heleno Fragoso regarding bail in offenses committed in material concurrence.Finally, in the Laws and Draft Legislation section, Law No. 7,106 of June 28, 1983, is published, concerning Crimes of Responsibility of the Governor of the Federal District, the Territories, and their Secretariats.HEITOR COSTA JÚNIOR
Note: This text is an English translation of the original preface published in Portuguese in the Revista de Direito Penal.