Aragão condemns Fachin's chicanery against Lula.

247 - Former Justice Minister Eugênio Aragão defined as "jurisdictional chicanery" the decision by Minister Edson Fachin of the Supreme Federal Court to dismiss Lula's defense request, which was to be judged next Tuesday, the 26th, by the Second Panel of the STF and could have freed the former president. "Will the STF succumb to chicanery or will it restore order to the process to return respectability to the much-shaken Brazilian justice system? The next few hours will tell," he emphasizes.

The legal expert further observes that "these maneuvers of the TRF are striking," noting the decision of the TRF-4 on the eve of the Supreme Court's judgment, which led to the case being dismissed. According to him, "the sudden awakening of the conveniently sleepy court in the south was solely due to an attempt to frustrate the judgment of the precautionary measure."

Read the full text of his article:

Against judicial chicanery 

Yesterday, Brazil was surprised by a sudden procedural twist in the ordeal imposed on President Lula because of the Guarujá saga. The 4th Regional Federal Court had been delaying, for more than fifty days, the admissibility review of the special and extraordinary appeals filed with the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), respectively, against the swift judgment of the appeal last January. Only after much outcry did the president of that court, after more than forty days with the paperwork languishing on his virtual drive, finally open it to the public prosecutor's office for its obvious opinion: to reject the appeals, of course. And now, with a precautionary request already scheduled before the 2nd Panel of the STF to expedite the lengthy admissibility review, the vice-president of the TRF decides to awaken from her long sleep like a sleeping beauty and, still yawning, issue a summary order rejecting the extraordinary appeal. The special appeal, it is true, was admitted, since, in the Superior Court of Justice (STJ), to which it is addressed, the same precautionary measure of anticipating the admissibility judgment had already been rejected by a single judge.

But that's where the cunning, the unfair trickery, lies. Unlike what happened in the Superior Court of Justice (STJ), in the Supreme Federal Court (STF), the rapporteur, even though he denied the preliminary injunction to grant suspensive effect to the extraordinary appeal, submitted the request to the Panel. The precautionary request was to be judged next Tuesday, June 26th. It is impossible not to notice that the sudden awakening of the conveniently sleepy court in the south was solely due to the intent to frustrate the judgment of the precautionary measure. It is evident that, to block the path of the request, which was linked to the prospective judgment of the extraordinary appeal, this appeal was not admitted. Once again, President Lula's defense is forced to hold on tight, with the ladder closed at the last minute by the cunning jurisdiction.

These antics of the TRF (Regional Federal Court) are astonishing. In January, in a rush, during the recess of the higher courts that could have exercised any disciplinary action, the court decides to schedule the appeal of the conviction, handed down without any robust evidence, in the already infamous case of... Triplex apartment in GuarujáThe case was prioritized over dozens of others, suggesting that the public interest demanded a prompt judgment. The judges' votes in the panel were so well-coordinated that, according to journalist Luís Nassif, they resembled a performance by Donald Duck's three nephews – and President Lula's sentence was increased. There were appeals. There were requests to higher courts to prevent the almost certain imprisonment. There were deaf ears. Nobody wanted or dared to prevent this imprisonment, based on a clear violation of the Constitution, which establishes the presumption of innocence until all appeals are exhausted. And, as expected, the imprisonment occurred swiftly, as soon as the appeals were rejected and even before its publication. In true style. ba-buf!

Then... ah, then! Then came the long winter. President Lula, imprisoned for more than sixty days, nominated as a candidate for President of the Republic by his party and in the "pole position"In all electoral polls, he is prevented from organizing himself, giving interviews, participating in debates with his competitors, subjected to compulsory disadvantage by capricious judges. Behind the scenes, jurisdictional voices are heard threatening him with an unusual summary dismissal of his candidacy registration if he dares to run. And no one is in a hurry now. They don't want to delve into the merits of the conviction engineered before the elections. They know he is innocent, they know that the Guarujá chimera does not hold up in light of the evidence, they know he was judged by a talkative, highly biased judge, but they keep him imprisoned to prevent him from participating in the elections."

The Regional Federal Court (TRF) stretched the rope to the limit. It held off on the admissibility ruling for as long as it could and only let go when the prospect of the Supreme Federal Court (STF) assuming jurisdiction arose. Then, again, like a mischievous child, the court... a quo He increased the pace to avoid getting scolded by the teacher.

Meanwhile, the aforementioned professor has behaved with astonishing leniency. The president of the Supreme Federal Court (STF) didn't hesitate and declared, at a business gathering, that President Lula could not be given preferential treatment. Therefore, there would be no urgent consideration of his case. Well, well! Preferential treatment is what he has always received, with the press on his back. The interlude of opportunistic haste and cunning delays to prevent any efficient action by the defense, the public statements by judges and prosecutors about his case, the prejudgments launched in the media by some who may still speak about his legal situation—all this denotes, indeed, a treatment completely outside the norm. Furthermore, the president of the STF herself went to great lengths, in full view of everyone, not to schedule declaratory actions of constitutionality that could reestablish the primacy of the principle of presumption of innocence. And she did so clearly so that President Lula could not benefit from any eventual jurisprudential repositioning.

When it was announced that the Supreme Court's Second Panel might re-examine President Lula's imprisonment while judging the precautionary request to anticipate the suspensive effect of the extraordinary appeal filed, the majority of discerning Brazilians, laypeople or not, reacted very cautiously, afraid to show hope, because, in a situation where the judiciary behaves in such a tortuous way, disappointment was almost certain. And it was: in just over forty minutes after the Vice-President of the Regional Federal Court's decision denying admission to the extraordinary appeal was made public, the rapporteur of the precautionary request issued a decision, deeming it inadmissible and frustrating its consideration by the Supreme Court's Second Panel, already scheduled for next Tuesday. How predictable they are in their machinations!

O timing The ruling that dismissed the precautionary request suggests that the game was rigged. They spared the Supreme Court justices a bitter pill to swallow. At the eleventh hour, they were spared the decision of whether or not to release President Lula. No one is hiding it. And yet, the dismissal of the precautionary request is not a necessary corollary of the decision that did not admit the extraordinary appeal. The Supreme Court itself has ruled that, once the admissibility judgment is issued, positive or negative, the proceedings begin. ad quemGiven the evident maneuver by the Regional Federal Court (TRF), the Supreme Federal Court (STF) should react and maintain the agenda, as cunning magistrates do not deserve to be honored with the retraction of the instance that can restrain them. And, to maintain the agenda, it would have been enough to resort to the principle of fungibility of appeals, prevalent in our criminal procedure, and receive the precautionary request already as an interlocutory appeal, to force the elevation of the extraordinary appeal. It could give a period of up to twenty-four hours for the defense to respond and guarantee the judgment on Tuesday. This is the minimum that would be expected of a Supreme Court whose duty is to ensure respect for fundamental rights, notably the right to due process, the right to a fair trial, and the right to a reasonable duration of proceedings, because, otherwise, by frustrating the agenda, any new decision on admissibility will be postponed until August, after the judicial recess. Until then, the ordeal of President Lula, imprisoned in defiance of the Constitution, will be prolonged.

There is still time. The defense can and should request reconsideration to keep the case on the agenda, but the burning question is: will the Supreme Court succumb to this trickery or will it restore order to the process and restore respectability to Brazil's much-maligned justice system? The next few hours will tell.