Divided, the full Supreme Court will judge Palocci's habeas corpus petition.
The habeas corpus hearing for Antonio Palocci, in two weeks, will mark a clash between two divergent currents within the Supreme Federal Court (STF); the First Chamber has a stricter understanding regarding habeas corpus (release) of those under investigation; for some members of the Supreme Court, the duration of the preventive detentions ordered by federal judge Sérgio Moro, of the 13th Criminal Court of Curitiba, is excessive and should be reviewed.
247 - The habeas corpus trial of Antonio Palocci will mark a clash between two divergent currents within the Supreme Federal Court (STF). In two weeks, the Supreme Court is expected to rule on a request for the release of former minister Antonio Palocci, as the habeas corpus was released for consideration this Wednesday by the rapporteur of Lava Jato, Minister Edson Fachin. With the November 15th holiday, the case is expected to be placed on the agenda for the week of November 22nd.
The trial will highlight a discussion about how the Court has been ruling on habeas corpus petitions (release orders) for those under investigation. The First Chamber has a stricter understanding, while the Second Chamber is more flexible. The central issue is the duration of the preventive detentions ordered by federal judge Sérgio Moro of the 13th Criminal Court of Curitiba. According to Justice Gilmar Mendes of the Second Chamber, the duration is excessive and should be reviewed.
Palocci's habeas corpus will interrupt the Court's more "light" agenda in November, when social and environmental issues were judged, to the detriment of actions related to corruption, such as the limitation of privileged jurisdiction and the possibility of the Federal Police entering into plea bargain agreements. The Court's president, Cármen Lúcia, is evaluating whether to include the issue of privileged jurisdiction and plea bargaining for judgment later in 2017.
The decision regarding Palocci's request for release should occur before the habeas corpus hearing for Eduardo Cunha in the Supreme Court's Second Panel. Therefore, the discussion in the Second Panel regarding the Cunha case may have a different slant after the full court rules on the Palocci case. According to Fachin, the intention of bringing Palocci's case to the full court is to try to "prevent and resolve any potential divergences in legal arguments," and that the full court has the role of providing unity and equality in its judgments.
Fachin points out two main divergences between the two panels. The first is whether or not habeas corpus is admissible as a substitute for the appeal provided for by law – for the first panel, it is not admissible. The second point, according to Fachin, is whether it is possible to grant an order ex officio to release the investigated party if habeas corpus is considered inadmissible – again, the second panel is in favor of this procedure.
The issue of the duration of pre-trial detentions was something Gilmar Mendes had been mentioning since the end of 2016. The trial is also expected to pit Ministers Luís Roberto Barroso and Gilmar Mendes against each other again, after a heated exchange last month. Barroso said that Gilmar "changes the jurisprudence according to the defendant" and that his colleague has "leniency towards white-collar crime." Gilmar Mendes, in turn, accused Barroso of engaging in "populism with prisons."
Gilmar, with a more "guarantist" view, sees excessive duration in detentions and believes that, as a rule, those under investigation should respond while at liberty. On the other hand, Barroso defends the legality of Moro's decisions and the actions of the investigative bodies, the Federal Public Prosecutor's Office, and the Federal Police.