Brazil's justice minister said on Friday he respected the decision to ban the execution of the sentence after conviction in the second instance, but stressed that Congress can reverse the jurisprudence signed by the Supreme Court (STF).
"I have always defended the execution of the criminal conviction in the second instance and will continue to defend it. The decision of the majority of the Supreme Federal Court (STF) to await res judicata must be respected," Sérgio Moro said in a statement.
Moro, a former judge who convicted former President Luiz Inacio Lula da Silva when he was judging cases of Operation Lava Jato before taking over the head of the Ministry of Justice, added that a decision taken by the Supreme Court on Thursday could be amended.
"The Congress can, in any case, amend the Constitution or the law to allow the execution again in the second instance, as, incidentally, was recognized in the vote of himself (STF judge) Dias Toffoli. After all, judges interpret the law and congressmen make the law, each in their own power, "he concluded.
On Thursday, the Brazilian Supreme Court overturned the possibility of arresting convicts in the second instance, altering an understanding adopted since 2016, in a decision that could lead to the release of former President Lula da Silva.
With the decision, convicted defendants can only be arrested after res judicata, that is, after all appeals have been exhausted. The only exception will be in the case of decree preventive arrests.
With this change, 38 convicts under the Lava Jato, the largest anti-corruption operation in Brazil, will benefit, according to the Federal Prosecutor.
Among them is Lula da Silva, who has been arrested since April last year after being convicted in the second instance in the case of a luxury apartment in the city of Guarujá, on the coast of São Paulo state.
In total, the new decision paves the way to release about 5000 defendants, according to the Brazilian National Council of Justice.
The application of the new jurisprudence adopted by the Supreme Court is not automatic, it is up to each executing judge to analyze the procedural situation of each case.
It is possible, for example, for a defendant to be released on the basis of the second instance thesis, but the judge may order remand against the defendant if he or she considers that he or she meets some requirement laid down by law – such as the risk of obstructing investigations.
. (tagsToTranslate) Jornal de Notícias (t) JN (t) World (t) Lula da Silva (t) Prison (t) Brazil