Veja magazine breaks with Gilmar and sees him on the side of impunity.
Brazilian magazine Veja decided to release its weekend cover early and made a surprising move: it broke with Minister Gilmar Mendes, one of its main allies in recent years. The reasons were Gilmar's decisions to release prisoners from the Lava Jato corruption probe, such as Jacob Barata, and to rule against the execution of sentences at the second instance level. With this move, Veja aligns itself with the positions of Lava Jato, led by Judge Sergio Moro, who also this week ordered the imprisonment of those convicted in the second instance. In the war between Moro and Gilmar, Veja took sides and sided with the judge from Paraná.
For the first time since the recent change in jurisprudence of the Supreme Federal Court, Minister Gilmar Mendes granted a Habeas Corpus against the immediate enforcement of a sentence after conviction in the second instance. According to the minister, a conviction should only become final after a decision by the Superior Court of Justice.
In addition to consolidating the minister's change of understanding, the habeas corpus brings another interesting element: it was filed by the lawyer and former federal deputy. John Paul Cunha, convicted by the Supreme Federal Court itself in criminal case 470, the mensalão scandal trial.
The single-judge decision is a step towards the Supreme Court changing its understanding of pretrial detention. Gilmar defended in the case what... has been speaking publicly, as previously reported by ConjureThe proposal to await a decision from the Superior Court of Justice (STJ) had been made by Minister Dias Toffoli on the day the court's plenary session began accepting the enforcement of sentences before they became final.
This Tuesday (22), Gilmar accepted the arguments The habeas corpus petition filed by Cunha and three other lawyers on behalf of businessman Vicente de Paula Oliveira, who was sentenced to 4 years, 2 months, and 12 days in prison for a crime against the tax system, was presented to the Supreme Court. The habeas corpus petition challenged the Superior Court of Justice's decision to deny an appeal against the issuance of a Provisional Execution of Sentence Order by the Federal Regional Court of the 1st Region.
The minister also emphasized that the case meets the requirements to disregard the application of Precedent 691 of the Supreme Federal Court, which states: "The Supreme Federal Court does not have jurisdiction to hear a Habeas Corpus petition filed against a decision by the rapporteur who, in a Habeas Corpus petition filed with a higher court, denies the preliminary injunction."
First HC
This is the first habeas corpus petition filed by Cunha that has been granted by the Supreme Federal Court (STF). The former congressman celebrates and states that it is "a satisfaction that Minister Gilmar Mendes accepted the defense's understanding." He highlights the relevance of the legal discussion involved in the case: "It is a very important decision, even if it is a single-judge decision, because it reinstates what Minister Toffoli had already warned about, that it is necessary to await a ruling on the pending appeals in the Superior Court of Justice (STJ) before executing the sentence," he analyzes.
The former congressman is a lawyer at the firm Luís Alexandre Rassi & Romero Ferraz Advogados, which is involved in the case. A leading figure in the Workers' Party (PT) during the governments of Presidents Luiz Inácio Lula da Silva (PT) and Dilma Rousseff (PT), Cunha was sentenced in the Mensalão scandal to 9 years and 4 months in prison. At the time, Gilmar Mendes cast the decisive vote, the sixth vote in favor of the conviction, making the then-congressman's situation in the court irreversible.
On that occasion, however, the minister voted to acquit the former congressman in a second charge of embezzlement. Two years later, Gilmar faced João Paulo Cunha again in the judgment of appeals for review. This time, the defendant's request was partially granted by the court—Gilmar was outvoted. By a vote of 6 to 4, the full court acquitted Cunha of the crime of money laundering and reduced the Workers' Party member's sentence from 9 years and 4 months in a closed regime to 6 years and 4 months in a semi-open regime.
Last year, they were face to face for the last time in the roles of defendant and judge, when the Supreme Court granted Cunha a judicial pardon after he had served two-thirds of his sentence, which freed him from legal troubles.
Click here to read the decision.
Click here to read the habeas corpus petition filed by the defense.