Decisive week of AP 470 tests the consistency of the Supreme Court.
The "Trial of the Century" is entering its most critical moment; as soon as the last motions for clarification are rejected, the ministers will analyze the motions for reconsideration, which would give the defendants with 4 votes in favor the possibility of a new trial; this is the case, for example, of José Dirceu, José Genoino, and João Paulo Cunha in their conviction for forming a criminal organization; Celso de Mello has already said that the motions for clarification exist, but gives every indication that he will change his position; Joaquim Barbosa is against any right of defense, but will face opposition from Ricardo Lewandowski; without the motions for reconsideration, Barbosa hopes to order the defendants' imprisonment before September 7th, in what would be his great act.
247 - The trial of Criminal Action 470, the so-called "mensalão" scandal, enters its most tense phase this week. Once the four pending motions for clarification, which are expected to be rejected, are judged, the president of the Supreme Federal Court, Joaquim Barbosa, will put the discussion on the so-called "infringement appeals" on the agenda – those that give defendants a new opportunity to defend themselves when they have at least four votes. This is the case, for example, of former minister José Dirceu and congressmen José Genoino (PT-SP) and João Paulo Cunha (PT-SP) in their conviction for conspiracy.
Joaquim Barbosa will defend the thesis that dissenting opinions no longer exist, although he himself has decided differently in relation to other defendants. He will also be followed by Gilmar Mendes, who intends to quickly conclude the so-called "trial of the century." The biggest unknown is the behavior of the senior Justice Celso de Mello, who recently spoke clearly in defense of dissenting opinions.
However, there is immense pressure from the Globo media group, which yesterday acknowledged its support for the 1964 military coup, for Celso de Mello to change his position – this pressure is voiced in Globo by columnist Merval Pereira. In defense of the appeals, the votes considered certain, for now, are only those of Ricardo Lewandowski, Dias Toffoli, and Marco Aurélio Mello. There is an expectation that Teori Zavascki will also follow this trend, but Luís Roberto Barroso's stance has been contrary to the defense in his recent statements. Rosa Weber and Carmen Lúcia may be influenced by the position of the senior justice Celso de Mello.
If the appeals are rejected by the majority of the plenary, Joaquim Barbosa could execute his grand act: ordering the arrest of the defendants before September 7th. This would be the culmination of a controversial trajectory, which could end in a possible political candidacy. Barbosa has frequently been mentioned as a potential presidential candidate and also received an invitation from the PSDB to run for governor of Minas Gerais in 2014.
Whatever the decision, the Supreme Federal Court (STF) will also be judged – since its own consistency will be called into question. Below is a recent statement by Celso de Mello regarding the appeals for clarification, published in the newspaper O Globo on August 21st of this year:
Celso de Mello indicates that dissenting opinions are valid.
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"The Supreme Court's internal regulations, which have the force of law, were received by the new constitutional order as having the authority of law," said Mello.
This would mean that although current legislation has eliminated appeals with the power to change sentences, the text of the Supreme Court's internal regulations could authorize the judgment of requests with so-called infringing effects, modifying the conviction.
The minister pointed out, however, that the Supreme Court no longer has the power to legislate, to issue rules based on texts approved in administrative sessions. This power was removed in the 1988 Constitution.
"When the 88 Constitution was enacted, this primary normative competence of the Supreme Federal Court ceased; therefore, the STF no longer has the power to legislate on matters within its internal regulations. Legislation must now come from Congress," said the minister.
Appeals for clarification are the last hope for some defendants to reduce their sentences. Among these defendants is former Chief of Staff José Dirceu, sentenced to ten years and ten months in prison for active corruption and conspiracy. Dirceu obtained four favorable votes in the session in which he was convicted of conspiracy. From then on, the former minister's lawyers will try to have the judgment reviewed and, with that, free Dirceu from the obligation to serve the first part of his sentence in a closed regime.