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The President of the Federal Supreme Court, Dias Toffoli, announced Monday (17) that the STF will judge on April 10 the validity of prisons after its conviction by the second instance of justice.
Since 2016, the Supreme Court has understood that this type of arrest is possible, but the purpose of litigation is to alter that interpretation.
One of the main arguments is that Article 5 of the Constitution provides that "no one shall be sentenced until the sentence has been sentenced to a final sentence", that is to say, as long as another court of justice will be used.
Three trials will be considered during the trial. They demand the ban on prisons after the second instance because of the principle of the presumption of innocence. The actions were presented by the parties PCdoB and Patriota and the Brazilian Bar Association (OAB).
The question is relevant because it could affect the arrest of former President Luiz Inacio Lula da Silva, who has been jailed since April on a second instance conviction. Researchers at Lava Jato say that allowing a prison reduces impunity and encourages investigations of white collar crimes such as corruption and money laundering.
If Lula's conviction is confirmed in the third instance before the trial, there will be no impact for Lula.
The declaratory constitutional actions that will be tried call for confirmation of Article 283 of the Code of Criminal Procedure, which states that prisons can only be opened after the final decision, that is, to say when there is no more pending appeal.
The Supreme has already ruled the matter in plenary at least three times. In addition, he badyzed a request from Lula and understood that it could be stopped, paving the way for the decision of the Regional Regional Court of the Fourth Region to order the arrest.
On February 17, 2016, by seven votes to four, the plenary of the STF declared in a specific case that the sentence could be executed after confirmation of the sentence pbaded in the second instance and that the defendant could appeal but imprisoned. This overturned the consolidated belief that the STF had been applying since 2009, namely that it was possible to wait for the judgment of all resources before arrest.
On October 5, 2016, the STF again raised the issue when it tested the precautionary measures of PEN and OAB, who wished to suspend the "freeze". agreement. And he decided to confirm the possibility of arrest after the second instance.
The score is six to five, which is different, because Minister Dias Toffoli stated that the February decision was made on a case-by-case basis and changed the agreement by considering that it was necessary to wait for the final expectation of res judicata, which must be respected. the first appeal badyzed in the Superior Court of Justice (STJ).
On November 11, the Supreme decided the issue in virtual plenary session and maintained the possibility of arrest after the second instance. The score was six votes to four – Rosa Weber did not vote.
Disagreement in the agreement is expected because last year Minister Gilmar Mendes said he could change his vote and understand that the sentence should only be executed after the judgment of the STJ.
Toffoli released Monday the record of the three months of administration to the presidency of the Supreme Court and announced to reporters, at an event organized by magistrates badociations, the list of judgments of the first semester of 2019.
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