Legal trickery is on its way out.

By Fernando Porfírio

247 – Experts interviewed by Brasil 247 unanimously agree that the delay in concluding the trial of journalist Antônio Pimenta Neves is an emblematic and instructive case that will serve as a basis for a review of the appeals system in the Brazilian justice system. This change should occur through the reform of the Code of Criminal Procedure, which is currently being drafted.

Amado de Faria, a professor of Criminal Law at Mackenzie Presbyterian University, former public prosecutor, and current criminal judge of the São Paulo Court of Justice, believes there is a distortion in the Brazilian procedural system, ultimately creating four levels of jurisdiction. According to him, instead of addressing major national issues, the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) have become ordinary courts.

According to Faria, the solution would be to create a rule stipulating that the so-called special appeal (STJ) and extraordinary appeal (STF) would not have the power to suspend the decision of the lower court. In other words, a convicted defendant who appealed to the Supreme Court or the STJ would not have a guarantee of a stay of execution of the lower court's sentence.

“The defense exercised its right, which is provided for by law,” says Almeida Toledo, a former lawyer and now a judge on the São Paulo Court of Justice. The son of a third-generation family of lawyers with a distinguished career in criminal law, Toledo emphasizes that the defense demonstrated skill in delaying his client's imprisonment.

“There was no trickery involved, but a strategy that may have been right or wrong,” says Almeida Toledo, who is also a professor of Criminal Law and Criminal Procedure at the Higher School of Advocacy (ESA).

Criminal lawyer Daniel Bialski argues that the outcome of the journalist's case was a premature arrest that contradicted the court's own jurisprudence. According to Bialski, the Supreme Court has repeatedly ruled that imprisonment is a final act, when no further appeals are possible.

In the opinion of the criminal lawyer, the Pimenta Neves case has not yet reached a final judgment, as appeals against the Second Panel's decision are still possible, and the Supreme Court has yielded to the clamor of the streets. "This is the price one pays for living in a democratic state governed by the rule of law."

The former president of the São Paulo Court of Justice and former member of the Superior Court of Justice states that, like any citizen, he is astonished by a case that took 11 years to be definitively decided, but that as a judge he respects the right of the defense to use all legal means to prevent his client from being convicted and imprisoned.

Limongi argues for the urgent need for modern legislation that reduces the excessive number of appeals at all levels of the Judiciary, which, in the judge's opinion, harms society, the justice system, and even the defendant.

New CPP

In May, President Rousseff signed Law 12.403, which replaced the current Code of Criminal Procedure, in effect since 1941. The new law will come into force on July 4th (60 days after its publication).

The text establishes precautionary measures as alternatives to pre-trial detention and maintains special detention for authorities, graduates, and certain professionals, but the freedom to appeal was not addressed.

The new law creates measures to limit the rights of those accused of committing minor offenses: electronic monitoring, prohibitions on frequenting certain places or communicating with certain people, and confinement to their homes during the night and on days off.

Supreme Court decision

On Tuesday (24), the Second Panel of the Supreme Court confirmed the decision of Minister Celso de Mello, taken in March. At that time, he considered that the journalist no longer had the right to appeal the 15-year sentence imposed by the Court. The other ministers followed the rapporteur and understood that no new arguments were presented by the defense in relation to what the Superior Court of Justice (STJ) had previously decided.

Celso de Mello stated that Pimenta Neves had already exhausted all available appeal options. The defense filed over 20 appeals alone. "Finally, the time has come to serve the sentence," said the reporting minister. At the end of the session, the ministers ordered the decision to be communicated to the court in Ibiúna, in the interior of São Paulo, so that Pimenta Neves could be arrested. It wasn't even necessary; after a few hours, the journalist surrendered to the police who had surrounded his house.

New home
Journalist Antônio Pimenta Neves, sentenced to 15 years in prison for the murder of fellow journalist Sandra Gomide in 2000, was transferred Wednesday (25) to a prison unit. The Penitentiary Administration Secretariat informed that Pimenta Neves will be isolated for 15 days in the Tremembé II prison. According to the unit's management, the journalist will be in a nine square meter cell, with a bed and a sink. After the so-called adaptation period, the prison directors will decide whether the journalist can be transferred to a common cell, in the company of other inmates.

The cell where the journalist will spend the next two weeks is almost twice the size of the cell at the 2nd Police Station in the capital, in Bom Retiro, where the journalist spent his first night in prison. According to police chief Marcio Todeschi, Pimenta Neves will be in pavilion 2 of the penitentiary, designated for prisoners with higher education. Alexandre Alves Nardoni, convicted of the murder of his five-year-old daughter, Isabella Nardoni, in 2008, is also held there.

During the adaptation period, Pimenta Neves will not be allowed to receive any visitors other than his lawyers. In August, the murder of Sandra Gomide will mark eleven years. Pimenta Neves shot his ex-girlfriend twice at a horse farm in Ibiúna. The journalist confessed to the crime. He was sentenced to 19 years in prison in 2006. The sentence was reduced to 18 years because he confessed. In 2008, the Superior Court of Justice (STJ) decided that the sentence should be 15 years.