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. 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. 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.