Conviction should take Collor to prison only after appeals – 05/23/2023 – Politics
Even if the STF (Federal Supreme Court) concludes the trial of former president Fernando Collor (PTB) this Wednesday (24th) and condemns him for passive corruption and money laundering, the defense will still have the right to file appeals before a possible arrest.
Last Thursday (18), the Supreme Court formed a majority to condemn the former president and former senator for these two crimes. The case’s rapporteur, Minister Edson Fachin, voted for the conviction for a prison sentence of 33 years, 10 months and 10 days, initially in a closed regime.
However, the size of the penalty and its conditions —the so-called dosimetry— are yet to be defined by the ministers. Ministers Dias Toffoli, Gilmar Mendes and the president of the Supreme Court, Rosa Weber, have not yet voted.
In addition to Fachin, ministers Alexandre de Moraes, André Mendonça, Luís Roberto Barroso, Luiz Fux and Cármen Lúcia were in favor of Collor’s conviction.
The rapporteur also condemned Collor for being part of a criminal organization. Mendonça did not vote to convict him of this crime, which is why the Supreme Court has not yet formed a majority on this issue. Mendonça said that there was a criminal association, a crime that has a lighter sentence than the previous one.
Kassio Nunes Marques voted for the acquittal of all defendants in the process. He considered that the investigations were based on plea bargains.
There is the possibility of requests for review (more time for analysis) that interrupt the processing of the process. The case is close to prescription.
After the publication of the ruling —the decision of the collegiate—, the defense of the former president may file a motion for clarification, an appeal that questions omissions and contradictions in the decision.
According to experts, the so-called infringing embargoes would also fit, an appeal filed against a non-unanimous ruling.
“Former President of the Republic Fernando Collor de Mello could only be arrested after the judgment of the motion for clarification, with the effective transit in rem judicata of the condemnatory judgment”, says the criminalist Leonardo Magalhães Avelar.
Fachin defined that Collor will have to initially serve the prison in a closed regime, but the former president may request that this not happen. Collor is 73 years old.
“If the existence of a health risk is demonstrated, it is possible that the defense of the former president will present a request for the sentence to be served under house arrest, provided that it is evidenced in a medical report that Fernando Collor de Mello is extremely weakened by a serious illness”, adds Avelar.
Criminalist Mariana Stuart, master in criminal procedure and member of Warde Advogados, states that “the fact that former President Collor is over 70 does not mean he is free or under house arrest”.
She points out that the Code of Criminal Procedure provides for the possibility of replacing the sentence if the convict is over 80 years old, is extremely debilitated by some illness, is “essential for the special care of a person under 6 years of age or special people” or “the only responsible for the care of a child up to 12 years old”.
“Apparently the former president is not covered by any of these hypotheses”, he says.
Stuart also says that the fact that Collor is a former president and a former senator makes no difference as to the type of establishment in which he would have to be arrested. The criminalist is based on a recent judgment by the STF itself, which overturned the provision for special imprisonment for people who have a higher education degree.
“Former President Collor will be arrested in a common cell, since the hypotheses of special imprisonment that still exist, after the recent judgment of the STF on the subject, occur only before the definitive condemnation for some professional categories”, says Stuart.
“That is, the special room will be used in situations of provisional arrest. Furthermore, expanding the interpretation of the STF judgment, which justified the end of the special cell for university students due to the fact that it violates the principle of isonomy, in the same way, there is no valid criterion that allows discrimination that authorizes special imprisonment for ex-manager definitively arrested.”
The criminal action judged by the STF against Collor is derived from Operation Lava Jato. The former president and former senator is accused of receiving bribes from a corruption scheme at BR Distribuidora, a subsidiary of Petrobras.
The action was taken to the agenda of the plenary of the STF because it is close to prescription. The former president has always denied all accusations.
Collor’s defense, led by lawyer Marcelo Bessa, maintained to the Supreme Court that the accusations against the former president are based only on plea bargains. He stated that there is no evidence against his client.