Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – In Part I of this piece, the Curmudgeon explained the historical context of Article 5-LVII of the Constitution. In Part II, he asks the following question: “At what point in criminal proceedings does the presumption of innocence cease to protect convicted criminals from imprisonment while appealing their conviction?

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

The answer today is simply “No one knows.

In 1988, the presumption of innocence became a constitutional provision. Under the Constitution, Brazil’s Supreme Court—STF—is tasked with interpreting the Constitution, so the answer to our question should be found in STF decisions.

Sadly, that is not the case, because the STF has waffled several times, and may yet do so again.

Brazil’s pre-1988 Criminal Procedure Code requires the incarceration of a convicted criminal while appealing. In other words, defendants are only presumed innocent until they have been convicted. Until 2009, the STF did not rule upon the constitutionality of that provision.

In 2009, however, the STF gave a literal interpretation to Article 5-LVII, and ruled that defendants could not be imprisoned until all their appeals were final. The principal consequence of that decision was that many cases went through three levels of appeal—TRF, then STJ, then STF. This resulted in years (sometimes decades) of delay, during which convicted criminals were free to lead normal lives.

The problem that arose with this decision is that of the statutes of limitations. Brazil’s law holds that the statute of limitations continues to run until a final unappealable decision is reached. If a crime was committed in 2000, and the statute of limitations is fifteen years, a final decision must occur before 2015, otherwise the defendants go free.

The 2014 landmark decision in the Mensalão case, which enabled the Lava-Jato investigations, was finally decided by the STF only a few months before the statute of limitations on most of the crimes would have expired and the defendants, even though guilty, would have gone free.

As Lava-Jato began to progress, concern grew that, with the burgeoning number of prosecutions, and the vast number of appeals permitted under Brazilian law, many of those charged would effectively escape any punishment by reason of the statute of limitations.

In 2017, the STF reversed course, and held (by a 6-5 vote) that the presumption of innocence ends after a conviction is affirmed by the TRF, the first level of appeals. The Court’s reasoning is that the facts of the case (which determine guilt or innocence) are finally decided at the TRF level; in all subsequent appeals, the facts cannot be questioned.

The 2017 decision has been controversial, as it contradicts the plain “get out of jail free” language of Art. 5-LVII of the Constitution. Some STF Justices who were in the majority last year have recently changed their minds and want to reinstate the 2009 criterion.

Complicating matters even further is that some Justices have suggested creating yet another intermediary stopping point—under this theory, imprisonment is not possible until after the STJ has affirmed the TRF decision. The presumption of innocence would last through a second round of appeals, not just the first round.

The answer to the Curmudgeon’s question, then, is a resounding “no one knows.” Worse yet, we won’t know more in the near future, because the Presiding Justice has refused to schedule any hearing by the full court on this thorny topic.

Part III of this series will explain the reasons for this waffling. As a teaser, the prime mover is former President Lula, convicted of corruption.

Stay tuned.


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