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Sessão de julgamento sobre a constitucionalidade da execução provisória de condenações criminais, conhecida como prisão após segunda instância Fabio Rodrigues Pozzebom/Agênci

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Brazil top court invalidates arrests if convicts have appeals ongoing

The justices reverted their own previous understanding

Published in 08/11/2019 - 12:28

By André Richter Brasília

Brazil’s Federal Supreme Court voted 6–5 against the provisional serving of sentences when convicts still have appeals ongoing. The move invalidates the understanding that authorized the imprisonments, in 2016.

Convicts whose arrests were based on the previous ruling will be allowed to appeal and request to be released. The change is believe to cover some 4.8 thousand inmates.

The main convicts from Operation Car Wash may be benefited—among whom former President Luiz Inácio Lula da Silva, put in jail on April 7 last year, after he had his conviction over corruption and money laundering confirmed by federal court, in the case involving the triplex apartment complex in coastal Guarujá, São Paulo.

Ex-Minister José Dirceu and erstwhile executives from construction companies may also attempt to be released. Federal prosecutors believe approximately 80 Car Wash convicts will be affected.

Votes

After five sessions on the matter, the final decision was made after the vote of Chief Justice Dias Toffoli, according to whom the legislative branch must be respected in its intents. In 2011, a change in the Criminal Code stipulated that no one may be arrested, except in cases of flagrante delicto, until all appeal possibilities have been exhausted. Toffoli stressed the rule is based on the Constitution.

Supreme Court Justices Edson Fachin, Alexandre de Moraes, Luís Roberto Barroso, Luiz Fux, and Cármen Lúcia voted in favor of the arrests; Justices Marco Aurélio, Ricardo Lewandowski, Rosa Weber, Gilmar Mendes, and Celso de Mello opposed them.

Then and now

As per a 2016 ruling, imprisonments after convictions ruled in second instance courts were allowed, even if appeals could be filed at higher courts—sometimes the Supreme Court itself. However, the Brazilian Bar Association (OAB) and several political parties argued the understanding was unconstitutional, and that a criminal sentence was only to be served after all chances of appeal are over, which prevailed in the court’s new decision.

Translation: Fabrício Ferreira Edition: Bruna Saniele / Nira Foster

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