A on Thursday (24) to deny an appeal presented by the defense of De Mello and have the former president arrested is based on a restrictive understanding of the (Federal Supreme Court).
Monocratically, he considered the request that Collor’s lawyers were “delayed” to revise the conviction at 8 years and 10 months of imprisonment-to be initially enforced in closed regime-imposed by the court to the former executive’s chief in 2023.
Moraes determined the immediate fulfillment of the sentence, ordering the arrest of the former president, (25).
Criminal law experts heard by Sheet They claim that, although restrictive interpretation, the minister acted within his competence. Others say Moraes anticipated and contest that the resources had been made only to postpone the sentence.
The crimes of passive corruption and money laundering. The former president was denounced by the (Attorney General’s Office) on charges of receiving between the former subsidiary of, and contractor UTC Engenharia.
The defense appealed using a type of appeal called declaration embargoes – which is to clarify points of the decision. The lawyers argued that the penalty imposed on it would not be corresponding to the. The thesis was rejected last year by 6 votes to 4.
Representatives of the former president then filed a new appeal called infringing embargoes-which is made when a unfavorable decision is made to the defendant and there are at least four divergent votes. This resource class allows to review the controversial point.
“The Federal Supreme Court has a very firm jurisprudence in the sense that only infringing embargoes are filed if the decision is of merit: more specifically, by the preceding, only the infringing embargoes would be appropriate if there were four votes for acquittal,” says Renato Vieira, former president of IBCCRIM (Brazilian Institute of Criminal Sciences).
This is the reasoning used by Moraes in the decision to decree arrest. The Supreme Court condemned the former president for 8 votes to 2 when he tried the criminal action. Only the ministers and voted for acquittal. Therefore, the appeal should not be admitted. The minister does not even analyze the merit.
Vieira does not agree with this understanding, but considers that the minister did not escape what the court was already deciding. “It has stood a very restrictive understanding of the Supreme Court regarding the scope of the infringing embargoes and the observance of waiting for the res judicata for the beginning of the sentence.”
Luísa Ferreira, Professor of Criminal Law at FGV Law SP, says, on the other hand, that this theme is not so pacified. “There is an understanding today, which is this one that Minister Alexandre de Moraes supports, but he is not unanimous. The supreme from time to time faces this issue.”
According to her, the fact that there is a controversy about how many votes and what kind of votes is needed to build a divergence that justifies that kind of appeal should have led Moraes to resolve the issue in the collegiate rather than individually.
In addition to the negative appeal, the magistrate requested an extraordinary virtual session of the court plenary for ministers to deliberate on the decision. On the morning of Friday, he suspended the trial and took him to be discussed in the physical plenary of the Court, on a date not yet defined.
The FGV teacher highlights the use of the mechanism. “He [Gilmar] It is indicating that it wants to discuss a little more. So it is not an absolutely uncontroversial issue, “she says, who also criticizes the framing of the feature as a delaying measure.” We are not in the 20th embargo. “
In the opinion of criminalist Flávia Rahal, also FGV Law Professor SP and Rahal partner, Carnelós and Vargas do Amaral Advogados, there was no way to qualify embargoes as delayers, since the defense was playing the role that fits him, using an instrument provided for by law. “The argument used in the decision of Minister Alexandre de Moraes, in my opinion, has no foundation,” he says.
The expert also says that with the rejection of the appeal and the decree of the arrest, the minister anticipates. “This order that might well have been performed after any referendum by the full.”
Tatiana Stoco, professor of Insper Law and Criminal Procedure, states that considering a resource a way to postpone the decision – when it is clear that this is the goal – is something common, especially in higher courts.
For her, more than a restrictive use of the rule, Moraes applied it in a pragmatic way. “I don’t see any space for discussion here. There were no four absolute votes. It should not scare this issue of issuing the warrant [de prisão] Immediately, because since he said it would be nothing more, regardless of the publication of the decision. No one needs to be scared of it, “says Stoco, although he points out that the minister could have made room for more resources, so there is no doubt.
