Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon, whose daytime job involves laws rather than public health, today wishes to proclaim that this week, Brazil’s Supreme Court (STF) has taken a major step towards reducing impunity in Brazil. In a controversial landmark 7-4 decision, the STF decided that criminals who have been convicted by a lower court, and who have had that conviction confirmed by an appellate court, must go to jail and begin serving their sentence.

The Curmudgeon, aka Michael Royster.
The Curmudgeon, aka Michael Royster.

If you’re used to the anglo-american system of justice, you’re probably wondering why this is controversial. The rule there is that once you’re convicted at the lower court level, you “go directly to jail, do not pass Go, do not collect $200”. If you appeal, you remain in jail serving your time while your appeal is heard.

In Brazil, however, the rule has long been different. Here, even though you have been convicted, you have the right to remain out of jail until such time as your very last appeal has been denied and the lower court decision has become final.

That is often twenty years or more, because Brazilian criminal procedure has far more appeal possibilities than the U.S. system, the appellate court system is overloaded and almost every conviction winds up going to the STF or the STJ, the supreme courts for constitutional and non-constitutional matters.

There’s a worse problem with the Brazilian system. Statutes of limitations on most crimes continue to run while appeals are pending. In other words, if your conviction has not become final within the statutory period, you walk

This occurred during the Mensalão Scandal, where the appeals had run so long that the STF was under immense pressure to take a final decision before the statute of limitations ran out.

The justification used by defenders of Brazil’s erstwhile system is the “presumption of innocence”. In other words, the lower court may have got it wrong, the appellate court as well, so until the STF/STJ decides, you must be presumed innocent — and innocent people shouldn’t be in jail.

This justification may be based upon the historic track record of lower courts, which are overworked and often incompetent, although most judges make very good money. It is also based upon the greed of criminal attorneys, whose fees grow proportionately to the number of appeals.

But the true origin of the overturned Brazilian rule is that it was purposely designed to ensure impunity to Brazil’s elite—in Brazil, as everyone knows, “rich people don’t go to jail”. Poor people don’t have adequate legal assistance, so they almost never appeal. Rich people can afford clever lawyers, who will game the system to ensure their clients stay out of jail forever.

This STF decision will affect numerous white-collar criminals, notably some who have been and will be convicted for crimes in connection with the Petrolão Scandal. Their lawyers will continue their appeals, but the criminals will remain in jail while they do.

That is a sea change for Brazil’s system of justice, and a vast improvement over the past.

The Curmudgeon has returned from a Zika-free zone to a largely shame-free zone, but is immensely pleased to discover some good news.


  1. Besides the fact that this decision totally violates the constitution, as article 5, paragraph 42 states that a person is presumed innocent until all possibilities of appeal are exhausted, the decision is troublesome for several reasons:
    1) the decision does not affect every case after this decision as it is only binding for this single person;
    2) in effect, judges in lower courts may, or may not apply the decision, which means that it will probably be applied only for black and poor criminals, so bankers and other corrupt people will continue to remain free for 8 to 10 years after having been convicted;
    3) the STF basically states that they are above the constitution, which may lead to arbitrary decisions like this one.

  2. The impunity of the politicians here might end if we ended entirely with the Brazilian system and they’d stay in prison from the first conviction. At least we can hope. Some of us, like myself, a resident of 11 years, are really getting over all this nonsense. And what’s inhumane about month public hangings of those who violate the public trust? What’s inhumane is the suffering these thieves inflict.

    The biggest thief of them all, Lula, wanders the streets endangering old ladies and pensioners who depend on their government funded pensions. All those funds invested in these mixed capital enterprises that are now worth pennies on the real. Who will make up that shortfall?

    As to Sven, rather than defend this pathetic excuse for a constitution, I’d advise adopting a 4000 word 4 page one similar to the one that has regulated the longest running democracy.

  3. the people in brazil are sick and tired of being robbed blind day in day out, night in night out! there seems to be no constitution in brazil. it seems like the laws only serve to protect the (rich) criminals. so this is a very welcome change. the more criminals in jail the better. that will have an effect on the other criminals — it should scare them enough to make they behave and stop stealing and doing worse things

  4. I think most people are missing a very fundamental understanding of the system of law in Brasil. In this article, a comparison is made to the “anglo-american” system of justice. But actually, the difference lies in the “type” of law that has been instituted. For example, the American system of law is considered “common” law (that which protects the rights of the common people…ergo the “commonwealth”). The American system was constructed based on the British Commonwealth system of law. While the Brasilian system on the other hand is known as “civil” law (that which protects the rights of the wealthy). To better understand the difference, one would have to start with David Hume’s, The History of England from the Invasion of Julius Caesar to the Revolution in 1688.

    Also, I agree with one of the earlier comments that alluded to the entire Brasilian system of law needing to be re-invented in order to correct these biases; the likelihood of which is not about to happen – not ever. So, the only thing the Brasilian people are left with is legislation on the part of astute lawmakers to rectify these injustices. This may be the start of something that can do just that…tchau.


Please enter your comment!
Please enter your name here

one × five =