Eliane subscribes to Gilmar's jabuticaba thesis

247 - Besides Dora Kramer, who changed her perception of appeals for clarification after a reprimand from Gilmar Mendes, Eliane Cantanhêde also embraced the "jabuticaba theory," according to which this type of appeal is a typically Brazilian thing – and should therefore cease to exist. Read below:

FOLHA DE SP - 23/08

BRASILIA - If there's already one major condemnation in the second phase of the Mensalão trial, it's the festival of appeals in Brazil. Note: the condemnation isn't of the principle, which is a matter of justice, but of the abuse.

In his statement against the dissenting opinions, which could restart important parts of the trial practically from scratch, Minister Gilmar Mendes pointed out that there are no precedents for this type of appeal, neither in the Supreme Federal Court (STF), nor in the Superior Court of Justice (STJ), nor in other courts, which would make this recourse "yet another uniquely Brazilian phenomenon"—that is, something typically Brazilian.

According to those opposed to these appeals, they are admissible as an appeal to higher courts, not to the same court, with the same justices and the same number of votes. They are only being considered due to a bureaucratic loophole: the Supreme Court's rules allow for it, but the law governing criminal trials in higher courts does not.

The day before, the rookie Luís Roberto Barroso had already given a live lesson to millions of viewers, condemning, in principle, "the use of appeals in a manifestly dilatory manner" and drawing attention to the mismatch between the Brazilian appeals system "and the demands of society."

His description is staggering: there's the extraordinary appeal, the court denies it; then comes the interlocutory appeal, the rapporteur dismisses it; an appeal against the dismissal is filed, then a motion for clarification is filed and, not infrequently, a second motion for clarification, which is, more or less, a motion to clarify the motion.

"This recurring practice is not good for the legal profession, it is not good for society, nor for the parties involved," said the new minister, advocating putting an end to it: "Once the delaying tactic is verified, the case is declared final and unappealable." And that's the end of it.

This is how, or by changing the law, one can try to avoid the now routine endlessness of legal proceedings. Well... when the defendant is rich and famous.

Eliane subscribes to Gilmar's jabuticaba thesis.