The Supreme Court began to judge on Thursday, 17, the merit of three actions discussing the possibility of imprisonment on appeal. The understanding that it is possible to start serving the sentence from the second conviction has been changed twice since the constitution of 1988, and is based on the constitutional principle of presumption of innocence.
What is the presumption of innocence?
The presumption of innocence is provided for in Article 5º, item LVII of the Constitution of Brazil. “No one will be found guilty until the final judgment has been passed.”
The arrest in the second instance is an early sentence, explains João Paulo Martinelli, criminalist and professor of criminal law. “This is early punishment because the Federal Constitution states that the punishment can only be applied after the res judicata, that is, when there are no more appeals.”
The presumption of innocence principle is considered a Stone Clause, says Vera Chemim, constitutionalist lawyer. “The principle of presumption of innocence, as well as other fundamental rights of individuals, is considered a Stone Clause. That is, it cannot be affronted. ”
Why the second instance?
It is only in the ordinary courts (Courts, Courts of Justice and Federal Regional Courts) that the facts and evidence of the case are analyzed on the merits. The Superior Court of Justice and the Federal Supreme Court are only responsible for discussing legal or constitutional matters.
Argue for the prison in the second instance is to say already exhausted the possibilities for evidentiary analysis, says Daniel Gerber, Master in Criminal Law and Criminal Procedure. "Thus, the presumption about a convict in the second instance would already be guilty, not innocence, behold, the evidence analyzed led to a certain conclusion."
STF ministers have already changed their understanding
Since the constitution of 1988, the understanding of the arrest in the second instance has changed twice.
Until 2009, it was the judge who ruled on the arrest, depending on each particular case. That year, when examining the habeas corpus petition for a defendant who had been sentenced in the second degree, the Supreme Court ruled, for the first time, that the execution of the sentence was conditional on res judicata.
In 2016, the STF ministers discussed the issue again, but reformed the understanding and authorized the arrest of a defendant convicted of qualified theft after the second instance conviction.
In October of the same year, the Court held by votes to 6 5 the possibility of execution of sentences after conviction by the court of second degree.
Prison in the second instance is Lava Jato's pillar
Operation Car Wash relies on the second instance prison. Prosecutors in the Federal Public Prosecutor's task force estimate that convicted politicians, money-makers, businessmen and former Petrobras leaders would all be at liberty if the Supreme Pre-2016's understanding still prevailed.
Currently, the Federal Regional Court of the 4.ª Region (TRF-4), Lava Jato's court of appeal, has about 100 convicted in the second instance.
Thursday, 17, the Attorney General's Office said that reforming the Supreme understanding would be 'a triple setback'.
“A divergent point refers to the fact that impunity is evident from the countless appeals in all instances and the need to update the constitutional provision in order to seek the current conception of justice in society,” says lawyer Vera Chemin.
For her, the sense of impunity caused by the crimes revealed by Lava jet makes some people advocate the need to update the constitutional provision.
STF ministers have already spoken to say that there are no 'outside influences' at the trial. This is the case, for example, former President Luiz Inacio Lula da Silva, imprisoned since April 2018 in the case of the triplex. His defense has already filed for habeas corpus in the Supreme, but his appeal was rejected.
Minister Dias Toffoli, president of the Court, said the trial of prison on appeal 'does not refer to any particular situation. " But the Minister Marco Aurelio, in turn, said that "neither Lula nor Dallagnol should influence the judgment. '