Supreme Court Decision on Trial Procedure Could Nullify Some Lava Jato Convictions

RIO DE JANEIRO, BRAZIL – The last to vote was Presiding Justice Toffoli, who, as he had already anticipated last week, was in favor of the position that defendants incriminated by whistleblowers should have the last word in filing briefs on the record, joining six other justices who voted last week.

Before Toffoli, Justice Marco Aurélio voted against the measure. He argued that current criminal procedure rules do not provide for a differentiated deadline for final briefs, as between defendants and whistleblowers, and that the defendants already knew the content of the accusations since the first stage of the triial, where they are on record.

“To consider that the defendant should speak after the whistleblower is to forget that both of them have a single position in the case, that is, of defendants,” said the dissenting justice.

Submitting final briefs is the stage immediately before the sentence, when the defendants present their arguments for the last time.

The Supreme Court’s decision could lead to cases that did not follow this rule being overturned, remanded to the lower court and final briefs, or even being re-tried.

Justices now discuss whether to set a limit on the overturning of convictions to avoid a cascading effect on Lava Jato and other criminal cases that have also used the testimony of whistleblowers.

There are likely to be four possibilities: One is that all cases that did not follow the new understanding of the order for filing final briefs should have their sentences reviewed. Alternatively, only cases in which the defendant contested the order of the briefs before the first judgment should be annulled.

Another possibility is a case-by-case analysis of whether the order of filing briefs has been prejudicial to the defendants’ rights. And finally, the interpretation could be that the new rule on filing final briefs should be enforced only in future cases–thus the new interpretation would not lead to the annulment of prior decisions.

The first three scenarios may directly affect the lawsuit in which former President Lula da Silva was convicted of corruption on suspicion of having benefited from contractors working on a weekend  home that he used to visit in Atibaia (SP).

The trial, however, should have no effect on the Guarujá Triplex case in São Paulo, which led to his arrest.

Although a decision by the Supreme Court may lead to the annulment of the sentence against the former president in the Atibaia case, a retrial is not automatic, and the STF will be required to judge Lula’s counsel’s appeal requesting a review of the conviction and examine whether the leftist’s case is in fact covered by what has been decided.

This also applies to the other Lava Jato cases and other criminal actions that involved the testimony of whistleblowers who were co-defendants.

The case that the Supreme Court is currently judging involves the appeal of former Petrobras manager Márcio de Almeida Ferreira, convicted of corruption and money laundering in Lava Jato, by a judgment of then judge Sérgio Moro.

The STF’s decision will have an immediate effect only in this case but should serve as a benchmark for proceedings in a similar situation.

For this reason, other convicted defendants should have their cases examined separately by the courts, after filing a specific appeal requesting that the new STF position be applied to them as well.

Source: UOL