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The Judiciary as Second-Best Political Strategy: The Never-Ending Debate over the Presumption of Innocence in Brazil

Juliano Zaiden Benvindo & Fernando José Gonçalves Acunha, University of Brasília

In February 2016, one of us wrote a post on I-CONnect focusing on the Brazilian Supreme Court’s new precedent on the presumption of innocence.[1] The decision carried out a major shift by allowing criminal sentences to be enforced once a judgment has been affirmed by a court of appeals, rather than waiting until all appeals had been exhausted. This was a significant decision in part because it landed in the middle of a sweeping corruption probe against political bigwigs and executives of the biggest contractors in Brazil. The decision possibly contradicted an unamendable eternity clause in the Brazilian constitution (Art. 5, LVII) – “no one shall be considered guilty before the issuing of a final and unappealable criminal sentence.” But the argument in favor of it was, as then Attorney General of the Republic Rodrigo Janot stated, to carry out “a decisive step against impunity in Brazil.”

For a while, one could argue that this prospect was becoming a reality, and the following months witnessed the imprisonment of some influential political and business figures after being condemned by state or federal Courts of Appeals. Unsurprisingly, this situation also triggered a severe backlash, and powerful political forces attempted to halt the judiciary’s interventions in its entrenched businesses and practices. The judiciary’s behavior in the aftermath of that backlash has been striking. As a sign that things get trickier when push comes to shove, the judiciary has furthered a parallel and more effective backlash in its own garden, possibly becoming the worst enemy of the role it seemed to have previously embraced. Structural dysfunctionalities of the Brazilian judicial system, longstanding and close ties between the political and judicial branches, and the constant violations of minimal safeguards in criminal proceedings by the prosecution and the judiciary may help explain this outcome.

One central problem lies in the fact that despite being a Supreme Court’s ruling, it did not constitute a binding precedent under the Brazilian system of judicial review because it was a habeas corpus judgment.[2] The ruling was thereby not immediately applied to all similar cases and a considerable number of local and federal Judges and Courts, and even Supreme Court Justices, continued to enforce their own understanding in defiance of the Supreme Court’s majority decision.

It goes without saying that the judicial system cannot handle this level of uncertainty. For such circumstances, the Brazilian Constitution includes an action to cope with widespread disagreement among different Courts regarding the enforcement of legal statutes. The so-called Declaratory Action of Constitutionality (ADC)[3] is aimed at asking the Supreme Court about the constitutionality of a legal provision, and that decision has binding effects.[4] By the time the Supreme Court set its new habeas corpus precedent, two ADCs were pending (ADCs n. 43 and 44, both filed in 2016 and whose rapporteur, Justice Marco Aurélio de Mello, had joined the minority in the habeas corpus case). Their scope is to determine a binding interpretation of Article 283 of the Criminal Code with respect especially to Article 5, LVII, of the Constitution – exactly the legal provisions that had been previously interpreted by the Supreme Court as allowing imprisonment even in the absence of a final sentence. Many interpreters saw these cases as an opportunity for the Supreme Court to reaffirm its decision made a few months earlier and impose a final solution.

By any reasonable point of view, an observer would expect that the Court would uphold its precedent, since there had been no significant developments pointing to a shift in the Court’s position. At first, this was precisely what the Court did, at least provisionally. On October 5, 2016, the Court resolved two requests of provisional remedy in those ADCs and the precedent was confirmed. On November 10, 2016, in another case in which the so-called general repercussion was examined, once again that precedent was upheld, even though by a very narrow margin.

Nevertheless, the landscape has since turned upside down and this might reflect on the final decision of ADCs 43 and 44. Some contingencies have contributed to this context. On January 19, 2017, Justice Teori Zavascki (who previously joined the majority) died in an airplane accident. His successor, Justice Alexandre de Moraes, took the oath of office on March 22, 2017, and his position is not yet fully known.[5] Justice Gilmar Mendes, who formerly joined the majority, not only has explicitly mentioned that he is reassessing the matter, but has also taken great strides towards attacking the conclusions of the graft probes under review at the Supreme Court. In a hearing session that occurred on December 19, 2017, he argued that in the so-called Car-Wash probe, the most impactful of all those cases, there was “great chaos” and that it was “an embarrassment for the Court” because of the supposedly messy investigation. Though Justice Gilmar Mendes has not openly explained why he is changing his mind in such a short period of time, his shifting position might provide the minority the decisive vote to overturn the precedent.

The rapporteur, Justice Marco Aurélio de Mello, stated on December 5, 2017 that he is ready to report the case to the Court and present his opinion, though it is Chief Justice Carmen Lúcia’s exclusive prerogative to determine the date of the judgment. This uncertainty only adds to the current political crisis. It is undeniable that this issue is extremely relevant in contemporary Brazilian politics, since its repercussions can affect the fate of various political figures along with the results of the presidential and congressional elections to be held in October 2018. Even former President Luiz Inácio Lula da Silva, who is leading the polls for the presidency, and whose corruption charges are being interpreted by the Left as a “coup inside the coup” following President Dilma Rousseff’s impeachment, is awaiting a Federal Court of Appeals’ decision scheduled for January 24, 2018, and which could seal his fate.

What stands out in this scenario is that seemingly little has changed since the precedent was set about two years ago: only one Supreme Court Justice was replaced; moreover, society keeps strongly supporting the new standard for law enforcement and is not demanding a new decision. Yet, politically, the change has been significant since President Michel Temer’s rise to power, with clear signs of democratic decay.[6] We do not think that the graft probes currently ongoing are altogether positive– for example, the corruption scandals investigations have contributed to a great depreciation of fundamental rights and have also reinforced a conservative approach to criminal law. Still, attempts to cut them off as they get closer to Congress and President Michel Temer’s administration are visible, ranging from cutting anti-graft unit funding and staffing to attempts to pass legislation curbing prosecutorial powers.

It would be naïve not to see what Justice Luís Roberto Barroso has called a “cover-up operation” also reaching the judiciary, which, unlike the political branches, has a lower dependency on popular approval. Since Congress has run into difficulties in passing legislation aimed at curbing those graft probes, the Judiciary can act as a second-best strategic player for such an end. It can do so convincingly by adopting the countermajoritarian argument of protection of basic rights, especially in the face of some abuses committed by the prosecution and the judiciary during the corruption investigations. It is as if the judiciary along with the prosecution, by violating such procedural guarantees in the eagerness to “moralize” politics in Brazil, laid the groundwork for reversing its own actions. This situation has naturally ended up back at the Supreme Court’s doorstep, which may end up reversing its precedent in order to control these perceived abuses. Yet the language of rights itself does not fully explain and justify the Court’s erratic behavior and lack of coherence in the particular matter of the presumption of innocence. This lack of coherence instead signals again the increasingly salient political role that the Court has played in recent Brazilian politics.

Suggested citation: Juliano Zaiden Benvindo & Fernando José Gonçalves Acunha, The Judiciary as Second-Best Political Strategy: The Never-Ending Debate over the Presumption of Innocence in Brazil, Int’l J. Const. L. Blog, Dec. 23, 2017, available at: http://www.iconnectblog.com/2017/12/the-judiciary-as-second-best-political-strategy-the-never-ending-debate-over-the-presumption-of-innocence-in-brazil/


[1]  S.T.F. HC 126.292, Relator: Min. Terri Zavascki, 17.02.2016 (Braz.), Diário de Justiça Eletrônico [D.J.E], 17.02.2016 (Braz.).

[2] In Brazil, decisions taken by the Supreme Court are not always binding, especially when taken in pending concrete cases, since there are no stare decisis in our mixed formula of judicial review. In order to become binding on all judges and Courts, a decision made in concrete situations must be judged through the general repercussion (“repercussão geral”) formula as stated in article 1.040, Section III, of the Civil Procedure Code. Otherwise, only decisions taken in abstract judicial review may have such binding effect.

[3] Art. 102, I, “a”, of the Constitution, and Federal Law n. 9.868.

[4] The decision, in such cases, must be observed by all Courts and Judges, including the Supreme Court Justices, with no room for disobedience (Art. 28, sole paragraph, of Federal Law 9.868).

[5] Justice Moraes recently joined the majority in a habeas corpus case, saying that he would follow the established precedent at least until the full composition of the Court discusses the issue one more time. He did not clarify his position, though. See: http://agenciabrasil.ebc.com.br/geral/noticia/2017-09/ministro-alexandre-moras-e-favoravel-prisao-de-condenados-em-segunda-instancia

[6] Juliano Zaiden Benvindo & Fernando José Gonçalves Acunha, Brazilian Democratic Decay and the Fear of the People, Int’l J. Const. L. Blog, June 24, 2017, at: http://www.iconnectblog.com/2017/06/brazilian-democratic-decay-and-the-fear-of-the-people/

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