Marcelo Semer: Pretrial detention should be the exception.

Leonardo Fernandes, Brazil of Fact - Marcelo Semer is a judge and former president of the Judges for Democracy Association (AJD). In an interview with Brasil de Fato, he discusses the controversies surrounding imprisonment after conviction in the second instance and the recent positions of the Brazilian Judiciary on the subject. Check it out:

Brasil de Fato: From a legal standpoint and in terms of guaranteeing individual rights, how do you analyze the understanding reached by the Supreme Federal Court (STF) regarding the possibility of serving a sentence after conviction in the second instance?

Marcelo Semer: The Constitution is very clear in affirming the presumption of innocence until a final and unappealable conviction. This issue had sparked numerous debates in legal scholarship and jurisprudence until the full Supreme Court decided in 2009, after a series of individual rulings in the same vein, that this guarantee prevented imprisonment before a final and unappealable conviction, except when there is some precautionary basis, such as the tampering with evidence or indication of flight, for example.

With the Supreme Court's decision, even the law was changed in 2011, with a bill that had been under consideration since 2001 being approved in the Chamber of Deputies and the Senate. Article 283 of the Code of Criminal Procedure, for example, is the result of this change. It stipulates the need for a precautionary basis for arresting someone before a final judgment is reached.

However, in 2016, under pressure from the so-called Lava Jato Operation, the Supreme Court radically changed its understanding. The idea was that the new understanding of the Supreme Court would facilitate arrests before the final judgment, which could serve as greater intimidation for informants. The Supreme Court then changed its position without even bothering to discuss the laws that had altered the Code of Criminal Procedure and the Law of Criminal Execution, which remained based on the previous understanding.

I want to make it clear that the presumption of innocence does not eliminate the possibility of imprisonment before a final decision, as long as there are grounds for it. And jurisprudence, in my view even mistakenly, has been extremely tolerant of this requirement. We have [in Brazil] almost 300 people imprisoned before a final judgment. What the Constitution does not allow, and cannot allow, is automatic imprisonment. Executing the sentence before it becomes definitive. What to do with the sentence afterward, if there is an acquittal or reduction [of the sentence]? There is no way to return the time of life taken from the defendant. Therefore, the rule should be freedom, and provisional imprisonment should function as an exception, that is, whenever there is a reason that justifies it.

How do you assess the constant refusals by the president of the Supreme Federal Court, Minister Cármen Lúcia, to put to a vote the two Direct Actions of Unconstitutionality (ADCs) that question the established understanding, arguing that the issue is settled?

If there's one thing the issue isn't settled, it's that several [Supreme Court] justices continue to grant habeas corpus in individual cases, preventing automatic imprisonment, such as Marco Aurélio and Celso de Mello. Cármen Lúcia said she didn't want to "belittle" the Supreme Court by putting the ADCs (Direct Actions of Unconstitutionality) to a vote, in light of the case of former President Lula. But, by not scheduling them, she ended up doing what she intended to avoid: she decided the agenda according to who could or could not benefit from the decision.

What are the consequences of this legal uncertainty for the average Brazilian citizen?

The consequence of this paradigm shift by the Supreme Federal Court (STF) is that it will increase the volume of pretrial detentions or executions before final judgment. Today we are nearing 40%. Let's see what that will be a year later.

The president of the Superior Court of Justice (STJ) stated on July 12th that 'restrictive penalties' could not be applied after a conviction in the second instance. Wouldn't this contradict the understanding of the Supreme Federal Court (STF), since restricting rights is even less severe than deprivation of liberty?

There are numerous contradictions between the Supreme Court's decision and our legal system. The issue of alternative penalties is just one of them. But we could talk about others: the need to wait for a final and unappealable judgment to execute a court order for state debts, for example. Why should property, even public property, be protected more effectively than liberty? Or the lifetime tenure of judges and prosecutors: none of them can be dismissed before a final and unappealable conviction. Why doesn't the reasoning about "impunity," so commonly espoused in court, also apply to judges and prosecutors, who would only be dismissed after a second-instance decision? 

Campaign

The Brazilian Association of Jurists for Democracy (ABJD) launched, on July 16th, a Petition in defense of the presumption of innocenceThis initiative is part of a campaign focused on guaranteeing this principle and aims to mobilize other sectors of society. The results of the signature collection, one of the campaign's main activities, will be delivered to the Supreme Federal Court in September.

ABJD is a national association of jurists created to react to and combat the erosion of fundamental rights and to defend the Democratic Rule of Law. The association is a proposal for unity among various categories of jurists. Among them are judges, magistrates, lawyers, public defenders, professors, justice system employees, prosecutors, state and municipal attorneys, and law students.

In partnership with ABJD, Brasil de Fato launched a special tabloid on the topic this August.