Brazilian Federal Supreme Court Overturns “Second Instance” Imprisonment

RIO DE JANEIRO, BRAZIL – The Federal Supreme Court (STF) overthrew yesterday, November 7th, the so-called “second instance” imprisonment, returning to the opinion that a convicted defendant need only begin serving his sentence after all court appeals have been exhausted.

A court majority comprising Justices Dias Toffoli, Marco Aurélio Mello (rapporteur of the case), Rosa Weber, Ricardo Lewandowski, Gilmar Mendes, and Celso de Mello, voted against imprisonment before the conviction has become final, with no further appeals possible.

Dissenting Justices Alexandre de Moraes, Edson Fachin, Roberto Barroso, Luiz Fux, and Cármen Lúcia, voted in favor of beginning enforcement of the sentence after a conviction has been affirmed by one appellate court (“second instance”), even if further appeals are possible.

This decision paves the way for former President Luiz Inácio Lula da Silva to be released. This measure was regarded as one of the pillars of Operation Lava Jato.

Presiding Justice Dias Toffoli, the last to vote, broke the 5 – 5 tie, after four days and five courts sessions before the final result.

The Court understood that, under the constitutional right of presumption of innocence, convicted defendants have the right to remain free while all their appeals are still pending, before a decision becomes final.

This decision does not only affect Lula and others convicted by Operation Lava Jato. According to the National Council of Justice (CNJ), at the beginning of October, there were approximately 5,000 people serving sentences after their convictions had been affirmed by a second instance court.