Text from Reinaldo Azevedo
The Supreme Federal Court may be experiencing today the first day of the rest of its history. Either it remains aligned with the law, with the rule of law, with the sense of morality of the majority of Brazilians, composed of good people—otherwise, chaos would already be at the door—or it does the opposite: it ignores legality, disregards rationality, shrugs off the just demands of Brazilians who ask for a more agile and effective justice system, and makes a commitment to chaos. Either it remains strong, despite some minorities, or it takes the smallest measure and diminishes itself. And in that case, so be it. And no! I am not, in any way!, demanding that the court bow to the clamor of the streets.
On the eve of September 7th—against which Dilma Rousseff has already taken special measures—I am not recommending that a supreme court be guided by fear. I am, as perhaps a hundred texts prove, a severe and uncompromising opponent of "law found in the streets," a legal sorcery that seeks to transform Justice into the privileged terrain of class struggle. I have, as you know, no sympathy for this robed sub-Marxism, which, in my view, mixes two ignorances: that of law itself with that of sociology. On the contrary: I defend that judges apply THE LAW FOUND IN THE LAWS.
And this has already been explained more than once: it is the triumph of the law that tells us that appeals for reconsideration (a new trial for those convicted with at least four favorable votes) no longer exist. They are indeed provided for in Article 333 of the Supreme Court's Internal Regulations, but not in Law 8.038, which governs criminal proceedings under the original jurisdiction of higher courts. This blog was the first media outlet to address the issue, in a post from August 13, 2012. Until then, it was taken for granted that offenders were a natural step in the process.
Exactly one year ago (anniversary tomorrow), during the VEJA.com debate, I pointed out that, at the very least, the ministers would need to go through a preliminary step: before deciding whether or not to accept the appeals for clarification, they would need to decide if these appeals still exist—and I believe they no longer do. See the video below, starting at 36:10:
And why don't they exist? Because Law 8.038 doesn't provide for it, and because the Supreme Federal Court itself has already made an identical decision in the context of appeals for clarification in a Direct Action of Unconstitutionality. They were also provided for in the Internal Regulations. A law came to regulate the matter and did not provide for this procedure. What did the Supreme Federal Court do? It began to consider that article of its regulations ineffective. Why would it act differently now?What will the ministers do? I hope they uphold the law—at least I hope that the majority will, since my hopes of seeing the legal text carry more weight than elective affinities, unfortunately, do not extend to all members of the court. The Supreme Court sessions are broadcast live and to those watching. Readers know very well what I'm talking about.
Wednesday's session
Wednesday's session seemed too calm. Then Teori Zavascki took it upon himself to derail it with reasoning that, in my opinion, borders on the absurd (I wrote apost (regarding this). The most curious thing is that, in a matter of five minutes, it went from the narrowest and most stingy formalism to the most outrageous heterodoxy.
Faced with a clear contradiction in the judgment, which imposed different sentences on defendants who had committed exactly the same crimes, within the same context, with the same number of charges, and with the same aggravating and mitigating circumstances—a matter, therefore, for an appeal for clarification—Zavascki decided to dissent and not accept the appeal. He argued that it was an inappropriate instrument for that purpose. When defeated, he went to the other extreme: he reviewed his previous votes on motions for clarification and decided to reconsider the sentences applied to those convicted of conspiracy, which he considered excessive—if successful, this could benefit José Dirceu, for example. And where would the contradiction lie in these cases? According to him, the conspiracy sentence for the defendants was excessive. He can think whatever he wants, but where is the contradiction? According to him, the other convictions of these same defendants, for other crimes, started from more lenient levels. Is this a matter for an appeal for clarification? No! At best, it's just a crazy theory. The strange thing, as I noted, is that Zavascki couldn't have guessed that the court would review the other case, right? Even so, he had his general review opinion drafted, four or five pages long. Paraphrasing a character from Ariano Suassuna, I don't know how it happened, but I know it happened!
I don't want the ministers to think about the streets. I don't want the ministers to think about Brazil. I don't even want the ministers to think about the defendants—Lewandowski keeps appealing to the humanitarian sense of the judges, almost apologizing to the condemned. What I want is for the ministers to think about the laws. For me, that's enough. If they have the courage to apply them, they will consequently be doing good for Brazil and for Brazilians.
If the appeals are rejected, that's it! The Public Prosecutor's Office can request the immediate execution of the sentences of those convicted, and 11 of them could finally go to jail. And the Supreme Court of Brazil will be saying, in strict compliance with the laws, not fearing the clamor of the streets, that crime does not pay.