Supreme Court justice postpones ruling on Lula’s release

Law expert told Brasil de Fato this is not an unusual decision; defense may file interim appeal

São Paulo |
Lula has been in prison since April at the Federal Police headquarters in Curitiba, while his case is still pending appeal
Lula has been in prison since April at the Federal Police headquarters in Curitiba, while his case is still pending appeal - Marcello Casal/Agência Brasil

While a Supreme Court ruling was scheduled for Tuesday on an appeal filed by Luiz Inácio Lula da Silva’s defense team to release the former president of Brazil from prison, justice Edson Fachin withdrew the case from the top court’s agenda last Friday.

Because the appeals court that upheld Lula’s conviction, the TRF-4, decided not to submit the appeal against Lula’s conviction to the Supreme Court, Fachin found the defense’s appeal was compromised.

Attorney Ney Strokaze told Brasil de Fato this is a common procedure, as most extraordinary appeals filed to an appeals court are not received in the Supreme Court for “not meeting the necessary legal requirements.”

Strokaze says the TRF-4 received the special appeal filed to the Superior Court of Justice (STJ), but not the extraordinary appeal [for the Supreme Court]. “As the TRF-4 did not receive this extraordinary appeal, there is no purpose for this provisional remedy that would be reviewed on Tuesday,” he says.

“Not receiving this appeal is a very common thing. The TRF-4 does not receive approximately 90 per cent of appeals [filed to it],” the lawyer adds, pointing out that the appeals court is the only court that can rule on the admissibility of both appeals.

Strokaze also says the next step for Lula’s defense is to file an interim appeal directly to Edson Fachin, who may decide to rule on it by himself or submit it to a Supreme Court panel. “What happened was that a possible ruling by the panel was postponed,” he highlights.

The lawyer argues that, while a ruling on an appeal like the one that was scheduled for next Tuesday is not very common, both the STJ and the Supreme Court ordinarily rule on interim appeals.

The lawyer explains that, if justice Fachin submits this interim appeal to the panel, the ruling scheduled for Tuesday may happen later, in which the court will first rule on whether they will accept the extraordinary appeal. Then, they may rule on receiving or not the appeal filed by the ex-president’s defense to suspend Lula’s sentence, upheld in January by a regional appeals court, while the case is still pending final decision.

It is up to justice Edson Fachin to decide whether these appeals will be reviewed by the Supreme Court panel or whether he will rule on them by himself.

Strokaze points out that the Supreme Court will go into recess in July, so the ruling on Lula’s appeal may be postponed even further. Brazil’s former president is being held since April at the Federal Police headquarters in Curitiba, serving a 12-year sentence after being convicted of accepting a beachside apartment in Guarujá, São Paulo, as a bribe.

Lula’s defense reiterated arguments from the appeal to the TRF-4, pointing out irregularities and biased proceedings both by judge Sérgio Moro, who convicted the former president, and the prosecutors who accused him.

Edited by: Diego Sartorato | Translated by Aline Scátola