What the Supreme Court justice’s decision that may free Lula could mean

Brazilian justice ruled that prisoners jailed before exhausting all appeals should be released

Brasília |
Justice’s preliminary decision overturns prison sentences while cases are still pending appeal
Justice’s preliminary decision overturns prison sentences while cases are still pending appeal - Evaristo Sa / AFP

Brazil’s Supreme Court justice Marco Aurélio Mello issued a preliminary ruling this Wednesday that may free prisoners jailed before the end of their appeals processes. With the decision, in favor of the direct action for the declaration of constitutionality (ADC) 54, Brazil’s ex-president Luiz Inácio Lula da Silva may be released, as well as hundreds of thousands of prisoners that did not exhaust all appeals.

The ADC was filed by the Communist Party of Brazil (PCdoB), which requested the Supreme Court to rule on an article of Brazil’s Penal Law, which establishes that “no one can be jailed except if they are caught in the act or if the competent legal authority issues a written, well-reasoned order, in case of final and unappealable judgment, or if a preventive or temporary detention order is issued during the investigation or trial.”

Today’s decision reverses a 2016 majority opinion of the Supreme Court regarding item 57 of article 5 in Brazil’s Constitution, which reads “no one shall be considered guilty until their sentence is final and unappealable.” Based on the previous ruling by the country’s top court, convicts could start serving prison sentences after their conviction was upheld by one appeals court.

Brasil de Fato interviewed Beatriz Vargas, a Law professor at the University of Brasília, to understand what could actually happen after justice Marco Aurélio Mello’s decision. The scholar said the ruling “restores constitutional order,” but celebrating it will only be possible after the decision is complied with.

Automatic freedom?

As it is an action for the declaration of constitutionality, Vargas explains, there is no release order. That means prisoners will have to file appeals with their local trial courts based on Marco Aurélio Mello’s ruling. In Lula’s case, his defense team has already filed a plea to free the former president.

Overturning the injunction

One question that emerged with Marco Aurélio Mello’s decision is whether chief justice Dias Toffoli could overturn the preliminary injunction. While Vargas argues that that would not be the ideal procedure, as the best method to settle divergent opinions is through the panels of the Supreme Court, she does not rules out this possibility.

The Federal Attorney General’s Office has already filed an appeal with the Supreme Court chief justice Dias Toffoli to overturn Mello’s ruling.

Preventive Detention

Prisoners who are in pretrial detention cannot benefit from Marco Aurélio Mello’s decision. That could become an obstacle to Lula’s freedom, as his prison sentence could be turned into a preventive detention. That would be an attempt, Vargas said, to stop ex-president Lula’s from being released. “Let us be watchful of the possible arguments [that may arise]. Strictly speaking, there is no reason [to stop Lula from being released],” the scholar said.

Edited by: Pedro Ribeiro Nogueira