Federal Supreme Court Decision Could Annul Lava-Jato Convictions

RIO DE JANEIRO, BRAZIL – By a seven-to-three vote, the Federal Supreme Court (STF) approved on Thursday, September 29th, an interpretation of the Criminal Procedure Code that may annul convictions of Lava-Jato. For the Court majority, defendants need not submit final briefs until after all co-defendant whistleblowers have submitted their final briefs.

In Lava-Jato cases, under the statute, the practice was to grant a common filing period to all defendants. The new interpretation holds that this prevents defense counsel from challenging new allegations by whistleblower co-defendants, and may justify the annulment of convictions in proceedings that were conducted under the statutory rule.

Next Wednesday, October 2nd, the court will discuss the scope of this decision – whether it will apply to some or all cases in which convictions have already been determined, or whether it will apply only from now on.

STF ruling may benefit more than 150 Lava Jato defendants

The STF session has an immediate impact on former Petrobras manager Márcio de Almeida Ferreira, who filed an appeal alleging the same reasons as Bendine.

The decision, which will have its details defined only next week, will be an important precedent to guide other decisions.

In Brazil, judges are not required to follow a certain decision or its reasoning in future cases, because there is no “stare decisis” [binding effect] tradition in Brazilian law. Each magistrate has the autonomy to analyze a specific case before deciding whether to grant or deny habeas corpus.

To avoid mass annulments in Lava-Jato, Justice Barroso’s opinion proposed that the new interpretation be applied only to criminal cases tried from now on. Justice Fux agreed with this alternative. Toffoli said he had other suggestions to guide judges across the country in applying the STF’s ruling but would present his ideas only next Wednesday.

According to Lava-Jato prosecutors, the legal opinion has the potential to annulling some 32 judgments, involving 143 convicted defendants in their operations. But the decision may also have an effect upon other criminal proceedings, if all Brazilian judges decide to follow the decision taken by the STF yesterday. A less comprehensive interpretation of the decision, however, would be a factor in reducing its impact on convictions.