Paulo Moreira Leite: trial is not a soap opera
According to columnist Paulo Moreira Leite, from Istoé magazine, conservatives are pressuring the Supreme Federal Court to quickly present the final chapter of the soap opera they themselves created.
247 - One of Brazil's leading political columnists, journalist Paulo Moreira Leite, has published a new analysis of the trial in Criminal Action 470. According to him, conservative groups are pressuring the Supreme Federal Court (STF) to present the final chapter of the saga they have been building. Read below:
4 to 2 in the Supreme Court
After bringing the trial to TV, our conservatives want it turned into a soap opera. They complain that the final episode is still far away.
Yesterday's vote in the Supreme Federal Court should be celebrated. By a vote of 4 to 2, the justices ruled that a historic right of the country's justice system, the appeals for review, which have been applied since colonial times, cannot be denied to the 12 convicts in Criminal Action 470.
Paulo Moreira Leite
If two more justices vote in favor of the appeals today, the trial will take a different turn. The defendants will be able to request a review of those convictions in which they received at least four dissenting votes.
Contrary to what is being said, in an effort that could generate a false alarm with this decision, this is not a new trial. This possibility was eliminated last August when the Supreme Court denied the right to a second instance of jurisdiction to 90% of the defendants who should not be judged by privileged jurisdiction – the Supreme Court itself – and who would have been heard in the first instance, as is still the case today with the Minas Gerais PSDB mensalão scandal. Once this stage is overcome, the convicted would have a second chance, perfectly normal and natural, from the Brazilian justice system. This will not happen now.
The appeals process merely opens the possibility of an appeal within the same trial. Only the rapporteur will change, who must be chosen by lottery. Contrary to what is often suggested, in order to diminish the few rights guaranteed to defendants, we are not facing an endless process of appeals, of appeals against appeals against appeals.
Those who violate the rules represent a lower chance of success and a more limited opportunity for review. They are the bare minimum, but in the specific situation, they represent progress.
The other 15 defendants who are not entitled to appeals remain in the same situation as before. Many face extremely harsh sentences and have little or no chance of review.
The change is simple. An injunction cannot transform a guilty person into an innocent one. Only a new trial would have the power to do that. What was resolved last year is resolved.
Even so, if a defendant's lawyers manage, in a new debate, to convince a majority of the justices of their point of view, he may obtain a reduction of the original sentence and even be acquitted of that specific crime for which he has the right to request a review of the sentence. If this happens, his final sentence may be reduced.
Thus, in a decision that implies absolute respect for Brazilian law, a citizen sentenced to 10 years and 10 months in prison, like José Dirceu, could move from a closed prison regime to a semi-open regime. This is because four ministers voted for his acquittal on the charge of forming a criminal organization. Other defendants may also benefit. Appeals have always worked this way.
Yesterday's debate did not involve each magistrate's opinion on the guilt or innocence of each defendant, and therefore any attempt to suggest changes in this or that case is premature. It concerned who has the power to make and unmake laws in the country.
The Constitution states that this power emanates from the people and is exercised by their elected representatives, embodied in Congress. But a segment of the Supreme Court justices is convinced that they have the right to modify and interpret laws according to their convictions and conveniences. This is the view that the court has superior rights to the other branches of government, summarized by the phrase so often repeated in the trial, that "the Constitution is what the Supreme Court says it is."
The appeals are provided for in current legislation. It states that, during the judgment phase, every court must obey the rules of its internal regulations – and it is the Supreme Court's regulations that clearly and explicitly provide for appeals for reconsideration, without any alteration since the 1988 Constitution. Dias Toffoli made a short and clear intervention on this matter.
As Luiz Roberto Barroso, author of the opinion that guided the ministers in favor of the appeals, stated, attempting to eliminate the appeals at a time when the defendants have a real chance of obtaining them would be nothing more than a "last-minute, opportunistic" action. Considering that appeals are provided for in the Philippine Ordinances, from the time when Portugal and Spain formed a single colonial power, it would be rather scandalous to wait for the passage of four centuries, during which Independence, the abolition of Slavery, the Republic, and six different Constitutions were established, only to then, on any given day in the 21st century, when a group of politicians, advertisers, and bankers involved in the Workers' Party's financial scheme may be convicted, suppress a guarantee of a democratic nature.
Judge Luiz Flávio Gomes, who now heads a law school, explained in a text commented on by the Supreme Federal Court that there is no legal basis for suppressing individual rights.
Despite the limited nature of the appeals process, the mere possibility of a partial review of Supreme Court decisions is likely to awaken a well-known reactionary spirit among the country's leading conservative voices. Unwilling to accept any progress, any possibility of losing control over a process that has been carefully monitored from the beginning, their method of operation is force and threats.
They evade the merits of the discussion, its real content, to lose themselves in considerations of another kind. They don't want justice or rights. They want criminalization and punishment. They say that people and their rights don't matter. In a somewhat Black Bloc-like rhetoric, they say that what matters most are symbols and that the country needs good symbolic gestures. In this case, who knows, maybe I'll convince myself to smash a shop window with an axe, right?
After bringing the trial to TV, our conservatives want it turned into a soap opera. They complain that the final episode is far away.
They cannot tolerate democracy or dissent. They only understand justice when it benefits them. For others, it's always impunity.
But unless one believes that we all live on Carl Jung's couch—that father of psychoanalysis who sought to explain the world through cultural archetypes—what always matters is reality.
I will not list here all the points that need to be re-examined in criminal case 470. But it suffices to consider the following: those defendants who, last year, obtained a minimum of 4 votes in favor of their acquittal or a reduction of their sentence will be entitled to appeals. In a court of eleven ministers, but which often functioned with only 9 members, this is a more than reasonable number to consider that they have consistency in their arguments.