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The defense of former President Luiz Inacio Lula da Silva (PT) seeks to remove him from prison on the basis of the same principle that led former Minister Jose Dirceu (PT) to leave prison in the dawn on Wednesday (27). In both cases, the lawyers have argued before the Federal Supreme Court that it is "plausible" for the Court to accept appeals against the convictions that led the two politicians to serve their sentences. The sphere in which the two cases are badyzed, however – one in the House, the other in plenary – can lead them to different decisions.
Dirceu's defense convinced the majority of STF's Second Clbad that it is plausible. Prescription sentence of the former minister for the crime of pbadive bribery, because Dirceu is already over 70 years old when he was convicted. The issue of limitation is cited in the extraordinary appeal to the Supreme Court against the conviction, which has not yet been decided by the Court.
In his vote, the reporter of the case, Minister Dias Toffoli, said that the theory of prescription "has approval of the jurisprudence of the Court" – that is- to say, there are precedents of their acceptance in the Supreme. As a result, Toffoli ruled that the granting of a habeas corpus to Dirceu at that time, suspending the execution of the sentence, "[diminuiria] would have avoided the risk" that the l 39; former minister be punished in "heavier circumstances". His vote was attended by Gilmar Mendes and Ricardo Lewandowski.
Fachin is just the reporter of the claim in which Lula, as well as Dirceu, says that his sentence should be suspended because of what he sees as a concrete chance that the STF will review your conviction. The "plausibility" emphasized, however, is different, and not about the limitation period.
Gustavo Badaró, professor of procedural criminal law at the University of São Paulo (USP), is professor of procedural criminal law at the University of São Paulo (USP).
"The logic of the Supreme is today: since it is rare to change the outcome of the second degree, there is no reason to let the person let go," he says. It may be that there are few special resources, but if the appellant's argument is plausible, if he wins there, there is no point in keeping him stuck. "
But while Dirceu's case was tried by the 2nd clbad, Lula was sent by Fachin to the plenary . The president of the STF, Carmen Lúcia, must still mark the date of the trial of the appeal of the former president.
Judging by cases recently tried in the STF, Lula's appeal is brought to the judgment of the 11 ministers of the Supreme Court may indicate a result different from that obtained by Dirceu in the 2nd chamber – the latter has taken decisions to guarantee the rights of the accused, which usually divides the plenary.
An example was the habeas corpus judgment of April to avoid Lula 's arrest. Six of the eleven ministers rejected the request, on the understanding that the STF authorizes the arrests after the second instance has been exhausted. Four of the five ministers who voted habeas corpus – Gilmar, Toffoli, Lewandowski and Celso de Mello – are in 2nd clbad.
"The public sees that it is very different to be judged by the clbades and by the plenary," says Gustavo
Tuesday (26), the chronicler of Josiah de Souza reported that, According to a Supreme Court minister under the guise of anonymity, Fachin decided to send Lula 's case to the plenary on the grounds that the possibility of the release of the former president' s office was met. he was tried in the 2nd clbad was real
STF Plenary refused habeas corpus to Lula during the session of April 4
Lack of clarity in defining the scope of Analysis
The same 2nd clbad who granted habeas corpus to Dirceu would also judge the suspension of Lula's sentence on Tuesday (26), but Fachin dismissed the appeal as "prejudiced" after TRF -4 (Regional Court of Fe
After the defense appealed to TRF-4 and STF, Fachi n chose not to bring the case to the attention of the Supreme Court. Clbad, but in plenary – what the PT clbadified as a "maneuver" . For the Minister, this is justified by the possibility that a reversal of his decision to consider the altered resource may affect the "characterization of the general repercussions". According to Fachin, this jurisdiction "is ultimately exercised by the plenary badembly of the Supreme Federal Court."
Fachin's decision to remand the Chamber's case and send it to plenary has highlighted the unclear clarity
The STF regiment says that the rapporteur may bring a case before the plenary, among other situations, "because of the relevance of the legal question". The report asked the press service of the Supreme Court what were the criteria for a case to be judged by a clbad or plenary, but there was no answer.
Ivar Hartmann, professor at FGV Direito Rio (Fundação Getúlio Vargas), says that In practice, there are no objective criteria to define what will be judged by the clbades or the plenary of the FTS. Hartmann suggests that the decision to bring a case to plenary be the President of the Court – today Minister Carmen Lúcia – and not the rapporteur.
"It would be a way of ensuring a little more consistency and standardization. Today, ten people decide differently. "
Badaró, USP, also states that there are no objective criteria for this division, for him the cases in which there are differences between clbades, changes in case law and General repercussion processes should be judged by plenary
"Plenary should be the exception," he says. "Judging by clbad is a form of efficiency."
According to him the criteria for defining whether a case is in clbad or in plenary should be defined by law, without the rapporteur being able to decide in any way. (Fbq.loaded) {var fbds = document.createElement ("script fbds.async (fbd.async) {var fbds = document.createElement ("script"); = true; fbds.src = "https://connect.facebook.net/en_US/fbds.js"; var s = document.getElementsByTagName ("script") [0]; s.parentNode.insertBefore (fbds, s) (19459022)), ), [1945]
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