The Curmudgeon on “Infringing Embargos”

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Readers of The Rio Times will be pardoned if, even though they have a good grasp of Portuguese, they cannot quite figure out what has been going on at the Brazilian Supreme Court (STF) during the past three weeks. The Curmudgeon will answer their questions below.

Q: What are “embargos infringentes”?

A: In U.S. legal parlance, they are “motions for a new trial” in criminal cases where the STF has original jurisdiction, i.e. where the STF is the first court where defendants are tried.

Q: Is this common?

A: No. Members of Congress and their co-defendants are privileged to be tried before the STF. Most mere mortals must be tried in a lower court.

Q: Are we talking about the “Mensaleiros” here? The case where several prominent members of Congress were sentenced to prison for having bought the votes of their confrères by conferring monthly largesse upon them?

A: Well done! But now comes the tricky part, which is sentencing.

Q: Explain, please.

A: There were numerous criminal charges brought against the defendants, including corruption, fraud, money laundering, and formation of a criminal organization. Each charge carries its own penalties. The eleven STF judges agreed on guilt or innocence, and also on the sentences that should be imposed upon each of the defendants convicted of each count. These were then added together to impose the final penalty, which meant jail time for some.

Q: Back to the “embargos infringentes” please!

A: The motion for a new trial is only possible, under the STF’s procedural rules, in any criminal charge where the defendant receives four or five votes of not guilty. So a 6-5 or 7-4 verdict of guilty means a defendant gets another chance. The STF vote to allow the “embargos infringentes” was itself a 6-5 decision, decided on highly technical grounds.

Q: So, what’s the fuss been all about?

A: As an example, José Dirceu was convicted (7-4) of being the ringleader of a criminal organization, and by greater margins on other counts; when you add up the sentences on all counts, he should go to jail. If the ringleader conviction is overturned, however, he will only have to sleep in jail and can carry on his daily life outside of prison.

Q: But, why would any Justices change their vote on a retrial?

A: None of the Justices who decided the first case are likely to change their votes on retrial; however, after that decision, two of the Justices who voted for conviction in the 7-4 decisions reached mandatory retirement age of seventy, and have now been replaced.

Q: So what?

A: The newly appointed Justices will be able to participate in the new trial, and are widely known to have accepted the argument that there never was any criminal organization, so they will surely vote to overturn the prior convictions: 7-4 guilty will become 6-5 not guilty. Because of the new judgment and the sentencing guidelines, José Dirceu and others will not have to do the hard time they were sentenced to.

Q: Does that bother you?

A: Very much, but it’s not about the jail term. What bothers the Curmudgeon is that twelve defendants, convicted of crimes by the vote of the full eleven-member STF, Brazil’s highest court, should have the right to ask for a new trial before that very same court. That’s simply too many bites at the apple.

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Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, fetched up on these shores exactly 36 years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)