Minister Gilmar Mendes, of the STF (Supreme Federal Court), voted this Friday (15) for the release of former player Robinho. The trial was resumed in the court’s virtual plenary session and is 3 to 1 against the athlete’s appeal, convicted of rape.
According to Gilmar, Robinho’s arrest occurred before the end of the process of ratifying the Italian Court’s sentence in Brazil, contradicting the Supreme Court’s jurisprudence on arrest after a final judgment.
“I understand that it is a case of granting the order for the purpose of determining the immediate release of the patient as long as there is no final approval decision, without prejudice, of course, to the decree of precautionary measures in the strict cases in which they were applicable, upon justification that demonstrates its need”, says the minister in the decision.
Gilmar also suggests the suspension of the sentence approval process and the analysis, in the Supreme Court, of procedural issues related to the confirmation in Brazil of convictions abroad.
The minister highlights that he voted for Robinho’s release not because he questioned the Italian authorities’ investigation or because he disagreed with the punishment for the rape crimes.
“The decision to be taken in this case is in no way to be confused with any value judgment regarding the suitability of the criminal prosecution carried out in Italian lands, nor is there a need to discuss again the occurrence, or not, of the crime attributed to the patient”, he says.
Procedural issues, in the minister’s view, prevent the sentences imposed by Italy from being served immediately in Brazil. Gilmar says that Robinho’s case allows the STF to discuss, in an unprecedented way, whether Brazilians convicted abroad can be arrested in Brazil before the end of the processes that authorize the transfer of the execution of the sentence to Brazilian territory.
The Migration Law, which allows the transfer of the execution of a sentence to Brazil, was sanctioned in 2017, and the crimes for which Robinho was convicted occurred in 2013. For Gilmar, the ratification of the sentence in Brazil could not take into account the legislation that entered in force after the crime.
“The Migration Law represents true innovation of the law for the worse (more severe new law), a circumstance that, in the case submitted to trial, rules out its retroactive application, preventing the request for approval of a foreign criminal sentence from being accepted in order to allow the intended transfer of the execution of the sentence to the detriment of the patient “, it says.
For this reason, the minister argues that the Brazilian justice system must analyze the complaints against Robinho to carry out a new trial on the crimes already sentenced in Italy.
The analysis in the Supreme Court of Robinho’s defense appeal against the former player’s arrest began in September and ended up being interrupted by a request for views (more time for analysis) from Gilmar Mendes.
The partial result is 3 to 1 against Robinho’s release. The winning thesis, for now, is formed by ministers Luiz Fux, rapporteur of the case, Edson Fachin and Luís Roberto Barroso.
Robinho was sentenced by Italian courts to nine years in prison for gang rape. He has been imprisoned for eight months in the Tremembé penitentiary, in São Paulo, after the STJ (Superior Court of Justice) approved the Italian sentence.
The trial is expected to end on November 26th.
The former player was convicted by the first instance in Italy in 2017. The case continued in the country until 2022, when the sentence was confirmed by the last instance of the Italian Judiciary.
According to the investigation by the Italian Public Prosecutor’s Office, Robinho and five other friends committed group sexual violence against the victim, who was drunk by them and, unconscious, taken to the establishment’s dressing room, where she was raped several times.
The crimes were committed in 2013, when the athlete was playing for Milan. The Brazilian has always denied rape.
Ricardo Falco, a friend of the player, was also convicted. Because they left Italy during the investigation, the other four men accused of participating in the act could not be notified, and their case was separated from the process.
The week he was arrested, Robinho even published a video on his social networks in which he showed photos and prints that, according to him, would prove his innocence in relation to the rape case.
The STJ, however, did not analyze whether or not Robinho committed the crime, but only whether he should serve in Brazil the sentence to which he was sentenced in Italy.
