Marco Aurélio Mello decides to release all prisoners sentenced after the second instance | Politics

The minister decided to release, but the release of the prisoners is not immediate. It is up to each lawyer to ask the sentencing judge to release and comply with the Minister's decision ( for more information on the decision at the end of this report ).

The preliminary (provisional) decision of Marco Aurélio Mello concerns former President Luiz Inácio Lula da Silva, whose appeals are pending before the higher courts. Lula has been convicted by the Fourth Regional Federal Court for Pbadive Bribery and Money Laundering and is being reviewed by the Superior Courts (Superior Court of Justice and Federal Supreme Court).

Shortly after Marcus Aurelius' decision, Lula's defense asked the court that the former president be released. The application was submitted 48 minutes after the injunction was granted.

The decision of the Minister of the FST affirms the maintenance of Article 283 of the Code of Criminal Procedure, which states that prisons can only take place after a final decision, that is, to say when there is no more call.

In the decision, Marco Aurelio provides for the preventive detention provided for in article 312 of the Code of Criminal Procedure, that is to say those of dangerous prisoners or where detention is necessary to ensure the safety of the person. 39, public order or investigations.

"I will issue a preliminary injunction, recognizing that Article 283 of the Code of Criminal Procedure, in accordance with the Federal Constitution, determines the suspension of the execution of the sentence of which the decision of the l 39 execute is not yet final and release of the arrested persons, before a review on appeal, reserving the collection to the affairs genuinely set forth in Article 312 of the above-mentioned procedural law, "says the minister in the decision .

In a statement, Attorney General Raquel Dodge stated that she had been informed of the decision and that she was considering taking appropriate legal action.

"Attorney General Raquel Dodge recently received the news of Supreme Court Justice Marco Aurélio's decision to release all convicted second-level convicted prisoners. stresses that the beginning of the respect of the sentence after the decision of appeal is compatible with the Federal Constitution, besides guaranteeing the effectiveness of the criminal law and contribute to put an end to the impunity and to badure the credibility of the institutions, as he has already stated before the Supreme Court, "the statement said.

The Minister granted the injunction two days after the President of the Federal Supreme Court, Dias Toffoli, to mark the judgment of April 10 of next year. At that time, the badysis of three actions that require the prohibition of prisons after conviction in the second instance because of the principle of the presumption of innocence is marked.

The main argument of these actions is that Article 5 of the Constitution provides that "no one shall be guilty until a final sentence has been pronounced".

Since 2016, the Supreme Court understands that imprisonment after a second instance conviction is possible, but lawsuits seek to amend the agreement.

– February 17, 2016: The plenary defined in a specific case that the sentence could be executed after the conviction.

The Supreme has already ruled on the subject "prison after second instance" on at least three occasions: in the second case and the defendant could appeal but imprisoned. The decision overturned the agreement that the STF had been applying since 2009, according to which it was possible to await the judgment of all resources before arrest.

– October 5, 2016: The STF reviewed the precautionary measures presented by the PEN and the OAB and decided to confirm the possibility of arrest after the second instance.

– November 11, 2016: The Supreme returned to try the case in virtual plenary and upheld the possibility of arrest after a second instance conviction.

In the 18-page decision, the Minister Marco Aurelio Mello said that he had published the case for trial in April 2018, but that the case was settled only for the trial in April 2019.

He saw "a framework requiring prompt action" "for non-compliance with Article 283 of the Code of Criminal Procedure.

The Minister mentioned that the Supreme Court had already refused injunctions in other actions.

He claimed that as a minister he had to respect the Constitution and that the Supreme was the last trench of citizenship. 39, he could not bow to non-binding decisions.

"When I took office at the Court 28 years ago, I pledged myself to respect the Federal Constitution, to respect the laws of the country and not to bow to a declaration that would have no binding effect nt. the last trench of citizenship, if at all, "said the Minister.

Marco Aurélio stated that the plenary had already made various decisions on the subject and that there had been no decision

"It is necessary to carry out a new badysis of the subject in an objective process, having binding effects and general efficiency, filling the jurisdictional vacuum produced by the delay to bring the declaratory actions of constitutionality into final judgment, very well equipped and released to be inscribed on the agenda of the plenary ", declared the minister.

The minister declared that when there is still had an appeal to a higher court, guilt could not be anticipated.

"One can not anticipate guilt beyond the limits set out in the main law, when the criminal process itself escapes the control of the Supreme, "said Marco Aurelio.

He also stated that the right to await appeal should be valid for all prisoners and not only for those found guilty of corruption.