Lewandowski suspends second-instance arrests in electoral crime case.
Brazilian Supreme Court Justice Ricardo Lewandowski authorized two defendants in an election crime case this week to await final judgment in freedom; the decision suspends the understanding of the Superior Electoral Court, which had not authorized the defendants' release from prison; to justify his decision, Lewandowski says that imprisonment after a second instance ruling violates the principle of presumption of innocence.
Capital Letter - Brazilian Supreme Court Justice Ricardo Lewandowski authorized two defendants in an election crime case this week to await final judgment in freedom. The decision suspends the understanding of the Superior Electoral Court, which had not authorized the defendants' release from prison.
To justify his decision, Lewandowski says that imprisonment after a second instance ruling violates the principle of presumption of innocence, enshrined in Article 5 of the Federal Constitution. "I cannot, as Minister Marco Aurélio expressed, go beyond the explicit wording of this constitutional provision, which states that the presumption of innocence remains until the final judgment. This is absolutely explicit, categorical; I don't see how this provision can be interpreted," said the minister.
This decision is part of a tug-of-war between Lewandowski and the TSE (Superior Electoral Court). The case involves three city councilors from Rio de Janeiro who are defendants in the same electoral crime case. Convicted in the second instance and sentenced to five years in prison, they were detained to await final judgment, something that the STF (Supreme Federal Court) itself had already defined as constitutional.
The defendants appealed to the TSE (Superior Electoral Court) to await trial in freedom, but their request was denied by Minister Tarcísio Vieira Neto.
In the Supreme Court, Lewandowski authorized one of the defendants to be released from prison. After this decision was granted, the other two involved in the case appealed to the TSE (Superior Electoral Court), but the majority of the ministers decided to deny the request for release based on the STF's (Supreme Federal Court) own decision.
Lewandowski said that the decision "in no way conflicts with the majority decisions" of the Supreme Court. The minister stated that he granted freedom to the defendants only so that they can await the Supreme Court's final judgment on the constitutionality of imprisonment after a second instance conviction while at liberty.
The agreement awaits a vote in the Supreme Court.
Since 2016, the Supreme Court has held that imprisonment after a second instance ruling is possible. Those convicted by second-instance courts, such as the Federal Regional Courts, can be imprisoned. It was based on this decision that former judge Sérgio Moro ordered the imprisonment of former president Lula.
The ministers are waiting for the court's president, Dias Toffoli, to put the matter to a vote. Earlier this month, he postponed the trial of the cases dealing with this issue.
“As is well known, our Constitution is not a mere piece of paper that can be torn up whenever it contradicts the political forces of the moment. On the contrary, the Constitution of the Republic has sufficient normative force, so that its precepts, notably those that guarantee citizens individual and collective rights, provided for in its article 5, must be observed, even if momentary desires, even the noblest ones, such as the fight against corruption, require a different solution, since the only legitimate way out of any crisis consists precisely in the unconditional respect for constitutional norms. This is because criminal policy should not be made in the face of the Constitution, but rather, with its support,” said Lewandowski.