Questão jurídica principal
Whether the defendant’s lack of remorse may be inferred solely from his silence at the hearing for purposes of suspended sentence under Art. 41 ch. 1 al. 1 CP.
Decisão extraída
No. Silence at the hearing, without concrete findings showing how the defendant’s conduct revealed absence of remorse, is insufficient to deny remorse and draw an unfavorable prognosis.
Fundamentação extraída
A negative prognosis under Art. 41 ch. 1 al. 1 CP may rest on a lack of remorse, but this must be established concretely. The mere fact that the accused did not speak about his act does not by itself show that he does not recognize its wrongfulness or regret it; at minimum, specific observations or answers to judicial questioning are required.