Opinion, by Michael Royster
RIO DE JANEIRO, BRAZIL – This week, STF Justice Celso de Mello overturned an order to imprison a person who had been convicted of homicide by a first level court, and whose conviction had been affirmed by the Court of Appeals. In doing so, he refused to follow a recent 7-4 decision by the full STF which held that convicted criminals can be jailed after a Court of Appeals decision, even if they are pursuing a further appeal to the highest courts in the land.
Justice de Mello had been a dissenter in the STF decision. His juridical philosophy is that, under the Brazilian Constitution, everyone is presumed innocent, even if convicted of a crime, and cannot be jailed until they have exhausted all their appeals.
Justice de Mello finds the principle of “innocence until [finally] proven guilty” to be an overriding constitutional precept of justice, applicable to all. As Justice de Mello well knows, however, in practice the principle only applies to those wealthy enough to afford a full set of appeals. In Brazil, “if you’re poor, you go to jail; if you’re rich, you get elected to Congress.”
The press have indicated that there is another case pending at the STF that would deal with the same subject matter, and that there is a good chance that the prior 7-4 decision would be overturned, as Justices in the majority reconsider their prior position.
To reverse the prior decision would be an admission that, in Brazil, there is no “rule of law”. In any society where there is the rule of law, “superior” courts respect the decisions of lower courts. Justice de Mello, seated on Mount Olympus, has decided that no lower court decision is worthy of respect, even if a three-judge panel of an appellate court has affirmed the conviction.
Put another way, what Justice de Mello means is that appellate courts should be presumed to be as incompetent as lower-level courts are in judging guilt or innocence, and that the only really competent court in Brazil is the STF.
The Curmudgeon believes that Justice de Mello is wrong. The Curmudgeon, unlike Justice de Mello, believes that appellate court judges are neither intellectual midgets, nor bloodthirsty scoundrels. He believes they dislike sending innocent people to jail, and avoid doing so.
Underlying the juridical question is the more important political question of the Lava-Jato investigations. The prosecutors have argued that rich and important defendants convicted of corruption, whose convictions have been affirmed by an Appellate Court, should be in jail even as they file other appeals.
The convicted corrupt criminals, all of whom are using their ill-gotten gains to pay their lawyers, naturally wish to stay out of jail as long as they can. Justice de Mello supports them in this, and that is wrong. Appellate courts should not be presumed to be incompetent if the rule of law is to be obeyed.
The Curmudgeon comes from a country where lower court decisions are respected by upper courts, and where convicted criminals remain in jail pending final appeals.