Lava Jato bench faces resistance to arrest in second instance

Protagonists of the extinct Lava Jato and now parliamentarians, Senator Sergio Moro (União-PR) and Deputy Deltan Dallagnol (Podemos-PL) will face difficulties in moving forward with the proposals they championed to reestablish, in the country, prison after conviction on Monday instance. In the last legislature, the measure was buried in a double between the left and Centrão, little enthusiasm and fragile articulation on the part of the right, and practically no support from the government of former president Jair Bolsonaro (PL).

Now, even with a new Congress that is theoretically more conservative, support for second-instance imprisonment is still incipient. Moro announced that he had begun to gather signatures to unarchive a bill, presented in 2018 in the Senate, which changes the Code of Criminal Procedure to allow the provisional execution of the sentence. The support of 27 of the 81 senators is needed for the project to move forward, but so far only 14 have signed the request.

In turn, Dallagnol asked the mayor, Arthur Lira (PP-AL), to reinstate a special commission to analyze a proposed amendment to the Constitution (PEC) that allows the execution of any sentence in the second degree, not only in criminal proceedings, but also civil, tax and labor proceedings.

Every PEC needs to go through the analysis and approval of a special commission, a collegiate formed by a restricted group of parliamentarians, to be voted on in plenary, the final stage of its processing in the Legislative House. The one that existed for the PEC of the prison in second instance was undone with the change in the legislature.

Moro’s strategy is to resume the project to speed up the process

The first red flag, at least for Moro, appeared this Thursday (9), when Lira himself said that the topic should not be discussed in a common bill. “It is a discussion that is always highly controversial, it cannot be done through a bill and needs to be debated, discussed in plenary”, he said, when asked by the People’s Gazette, during a visit to Cascavel (PR).

In 2019, this was one of the pretexts presented by deputies to shelve the proposal, made by Moro at the time, within the so-called “anti-crime package”. They argued that the change should be made through PEC.

Moro’s assistants say that the unfiling is just the first step and that he, for the time being, does not want to discuss the merits of the project. The objective is just to resume the procedure where it left off, so as not to have to present a proposal that has to go through the entire legislative process again: drafting the text, choosing the rapporteur, distributing it to the Senate committees, voting on each one. them until reaching the plenary.

PLS 166/2018, which Moro wants to unarchive, was already approved by the Constitution and Justice Commission (CCJ), in a final decision (without the need to go through other commissions) in December 2019, in the form of a substitute (improved version) , the result of discussion among senators. The changes allowed for some flexibility in the execution of the sentence in the second instance, allowing the measure to cease to be applied in more delicate situations.

Proposal provides for exceptions if there is a chance of acquittal of the defendant

The proposal, as a rule, determines the fulfillment of the sentence after the trial in second degree, in which the guilt was confirmed by examination of the facts and evidence available. However, if there is a chance of acquittal, annulment, replacement of a custodial sentence with a restrictive sentence or change in the prison sentence regime to an open regime, the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) may suspend the execution of the sentence, as soon as they receive and examine, initially, the appeals presented to them.

The courts of second instance themselves – State Courts of Justice (TJs) or Federal Regional Courts (TRFs) – may not order the execution of the sentence if there is a relevant constitutional or legal issue that could lead to a review of the conviction. This can be done through internal appeals to the court itself, called embargoes de declaración.

Public pressure can increase chances of approval

Supporter of the project, and senator since 2019, Oriovisto Guimarães (Podemos-PR) says that it remains “very difficult” to approve the project. “I find it difficult as it has been since 2019. Projects like this or for the end of the privileged forum will only have a chance of approval with a lot of popular pressure”, he told the report.

In the Senate, the figure of Sergio Moro still arouses distrust and revulsion among the oldest senators, not only for his performance as a Lava Jato judge – which reached Centrão bosses and left-wing bosses, some of whom are still in the House today –, but also as a Bolsonaro’s Minister of Justice. His break with the former president’s government in 2020, accusing him of trying to interfere with the Federal Police, is still not well seen by senators closest to him.

Moro is still branded a “traitor”, someone who is unreliable and politically inept, not used to agreements and with little room for negotiations in the Legislature.

Similar resistance suffers Dallagnol among peers. As soon as he took office, he declared his vote for Marcelo Van Hattem (Novo-RS) for the presidency of the Chamber. Beside him and silent, he heard Lira indirectly criticize Lava Jato in the speech he made when he was re-elected to the position.

“Those who do wrong must pay, answer for their crimes, or prove their innocence and have the right to move forward with their heads held high”, said Lira – he was one of those who managed to escape investigations and accusations by Lava Jato that were being processed in the Federal Supreme Court (STF).

Dallagnol initiative depends on support from Arthur Lira

The commission he wants to recreate is directly up to Lira. Former chairman of the commission, deputy Aliel Machado (PV-PR), one of the few voices on the left who defends and fought for the approval of the PEC of the Second Instance, thinks that Dallagnol could harm the progress of the proposal. “It helps to bury, because of the Justice decisions that showed Lava Jato’s lack of impartiality. Therefore, Deltan has natural resistance within the political field.”

“Besides, his initiative is more outward than inward. The ideal was to try to create a parliamentary front beforehand, with a group of deputies that would openly support the defense of the PEC, with conversations with the president of the Chamber, so that it could actually happen. But he is speaking out, playing for the media, as in Lava Jato. I was the president of the commission and he didn’t talk to me, there was no articulation to make it happen”, adds Aliel Machado.

Leaders of Centrão and the left barred a project on arrest in second instance in 2021

The deputy was chosen to chair the former PEC commission in April 2021. After months of discussion, he advanced in negotiations to make a report feasible, written by the former rapporteur, Fábio Trad (PSD-MS), which resolved all impasses and objections enforcement of judgments at second instances in all areas of law.

One of the intended impacts was to empty the overload of processes and the very power of the STJ and the STF to judge everything that goes through the other instances, creating narrower filters to appeal to these higher courts.

In December, with everything ready for approval by the committee, Centrão, independent and leftist parties exchanged 17 deputies from the PEC special committee for others contrary to the text. Faced with the imminent defeat, Trad opted to withdraw his opinion, to prevent the PEC from being buried once and for all.

“Seeing the scenario that no longer exists, with whom I worked, is no longer here. With the sudden and sudden change, I withdraw my report and request that you postpone your analysis to another time, so that my report is not defeated”, he said at the time.

The changes in the commission were promoted by the leaders of the MDB, PSC, Republicans, PL, PP, DEM, PSDB, Solidariedade, PT, PSB, PDT and Podemos.

Imprisonment in second instance was Lava Jato’s great weapon

Second-level imprisonment was one of Lava Jato’s greatest weapons against impunity in cases of corruption. Thanks to her, President Luiz Inácio Lula da Silva, former Chief of Staff José Dirceu, former Chamber President Eduardo Cunha, former Rio de Janeiro Governor Sergio Cabral and dozens of businessmen, lobbyists and money changers convicted in the operation.

Practically all were released, except for some who remained in jail for some time due to preventive arrests – decreed to prevent further crimes, escape or damage to investigations.

One of the few who remained in this situation was Sérgio Cabral, arrested in 2016 by order of Moro. This Thursday (9), the Federal Regional Court of the 2nd Region (TRF-4) revoked the last order of this type, allowing him to circulate freely through the streets again, despite being sentenced in more than 20 actions to penalties that add up to more than 400 years in prison.