Congresswoman says Moro is trying to 'fix' his persecution of Lula with an anti-crime bill.

From Brasil de Fato - Among the measures included in the draft "anti-crime" law, prepared by former judge and current Minister of Justice, Sérgio Moro, is an amendment to the Code of Criminal Procedure that would allow for the imprisonment of those convicted in the second instance. This possibility already exists in Brazilian law due to the interpretation imposed by the majority of the Supreme Federal Court (STF) since 2016.

The most publicized legal case involving the issue of imprisonment after conviction in the second instance is that of former president Luiz Inácio Lula da Silva (PT). However, according to data from the CNJ (National Council of Justice), 169 prisoners could benefit from a change in the current understanding of the STF (Supreme Federal Court).

Federal deputy Erika Kokay (PT-DF) believes that the meaning of the Constitution has been disregarded by the Supreme Court's current interpretation.

"He [Moro] is trying to use an improper instrument. Trying to find an excuse for the unconstitutional imprisonment of Luiz Inácio Lula da Silva. The Constitution is very clear. He is using an infraconstitutional instrument to cover up his persecution," he interprets.

Even though the vote of Justice Marco Aurélio Mello, the rapporteur for the case, has been ready since last year, the president of the Court, Dias Toffoli, has scheduled the hearing for April 10th of this year.

What is at stake

Despite the Supreme Court's 2016 ruling, the Federal Constitution, in its article 5, item 57, states that "no one shall be considered guilty until a final and unappealable criminal conviction is issued." The current wording of article 283 of the Code of Criminal Procedure also establishes, in harmony with the constitutional text, that "no one may be arrested except in flagrante delicto or by written and reasoned order of the competent judicial authority, as a result of a final and unappealable conviction," except for temporary or preventive detentions.

In the first point of the draft bill, entitled "Measures to ensure the provisional execution of criminal convictions after judgment in the second instance," Moro proposes that the wording of the aforementioned article be modified to: "No one may be arrested except in flagrante delicto or by written and reasoned order of the competent judicial authority, as a result of pre-trial detention or by virtue of a final criminal conviction or one issued by a collegiate body."

This modification could set a precedent that challenges the current understanding of the Supreme Federal Court (STF). Legally, not only courts from the second instance upwards are considered collegiate bodies, but also jury courts in the first instance.

ADC

The peculiar situation created by this presence begins precisely with the fact that it is apparently unnecessary, given the current position of the Supreme Federal Court (STF). However, the Court must address the issue, and may change its position, in April, when the date for the judgment of a Declaratory Action of Constitutionality (ADC) on the matter is scheduled.

The aforementioned ADC (Direct Action of Unconstitutionality) specifically requests that the current article 282 of the Code of Criminal Procedure be declared constitutional.

The status of the measure proposed by Moro will depend on the outcome of this trial, explains criminal lawyer Fábio Tofic Simantob, president of the Institute for the Defense of the Right to Defense, an entity that considers imprisonment after conviction in the second instance unconstitutional and illegal. According to him, the wording of the Constitution points not only to an abstract principle – "no one shall be considered guilty until proven otherwise" – but also to a concrete rule for the possibility of imprisonment.

"No one can be considered guilty before a conviction becomes final. This marks the procedural moment when someone can be considered guilty," explains Simantob.

In any case, if nothing changes in the majority position of the Supreme Federal Court (STF), the proposed change will become unnecessary.

Simantob points out, however, that the wording of article 283, which refers to imprisonment, is much more explicit than that of the Constitution, which refers to guilt, and that, legally, it is difficult to speak of the unconstitutionality of the Code of Criminal Procedure. This makes the 2016 Supreme Court decision "an express, clear, and frontal violation" of article 283.

If the Court actually changes its position, the status of Moro's proposal will depend on two possible outcomes that the Supreme Court could adopt, says the lawyer. In the first possibility, the majority of the Court could establish that imprisonment after conviction in the second instance is illegal, as it violates the Code of Criminal Procedure, but that it could still be considered constitutional if the law were different.

In that case, there would be room for a change in the Code of Procedure, such as the one proposed by the former Lava Jato judge. The contradiction of this solution, Simantob points out, is that the Supreme Court would implicitly assume that the 2016 decision was based on illegality, by contradicting article 283.

The second possibility is that the Supreme Court will consider imprisonment after conviction in the second instance not only illegal, but also unconstitutional. If this is the decision, Moro's proposal, according to the president of IDDD, "falls apart," because not even a Constitutional Amendment Proposal would change this understanding.