Débora Zampier Reporter Agencia Brasil
Brasilia – The biggest judgment the Brazilian Supreme Court has ever dealt with began on August 2 and now, over 40 sessions later, continues with no end in sight. This is Penal Case 470, known as the mensalão, the big monthly allowance, in reference to more or less regular payments made to members of Congress by leaders of the PT so they would vote with the government during the 2003-2005 period. Originally 38 defendants were brought to trial facing charges of one or more counts of one or more of seven different crimes (one of those charged, the former minister of Social Communication in the Luiz Inacio Lula da Silva administration, was absolved in preliminary arguments by the public prosecution (“procurador-geral da República”)).
For the first time since the trial began there will be a break in the sessions this week because the justice-relator, Joaquim Barbosa, has traveled to Germany for medical treatment. He returns November 3. On November 5, the Chief Justice, Carlos Ayres Britto, will attend a conference (“Encontro Nacional do Judiciário, promovido pelo Conselho Nacional de Justiça”). Thus, the next session of the mensalão, the 43rd, will take place on Wednesday, November 7.
Because of the complexity of the case, it was divided into chapters. In the first chapter the court dealt with the charge that public funds from the Chamber of Deputies and the Banco do Brasil were used in the vote-buying scheme. Then, following chapters involving charges of bank fraud at the Banco Rural, money laundering, corruption in the ranks of government allies in Congress, conspiracy at high levels of the executive branch and illegal remittance of funds abroad were judged. Out of the 37 defendants, 25 were found guilty of various counts of various crimes by a majority of the justices.
The last phase of the trial began on October 23. This was the sentencing phase (“dosimetria”). The justice-relator, Barbosa, who has been herding the case along, intended to quickly end the sentencing phase through an informal agreement with the court in which the other justices would vote up or down on sentences decided by him, the relator, or by the justice-revisor, Ricardo Lewandowski, as they ruled on case chapters as a whole (“voto por grupo themático”). However, a majority of the court jettisoned that idea with the argument that there was a judicial principle that each defendant deserved to be dealt with individually in the sentencing phase (“princípio da individualização da pena”). As a result, Barbosa’s idea for a quickie sentencing phase was left behind and the justices began analyzing defendant by defendant, crime by crime. Since then, the sessions have been marked by misunderstandings among the justices, some mistakes by Barbosa in his sentencing and a general inability of the court to reach a consensus. The original idea of an up or down vote on votes by the relator or revisor also bit the dust as the rest of the justices presented individual opinions.
The result of all this was that the court took three days to sentence the first two defendants, Marco Valério and his partner, Ramon Hollerbach.
It is now considered impossible for the court to conclude the mensalão trial before November 14, when the Chief Justice, Carlos Ayres Britto, retires (he turns 70 and retirement at 70 is mandatory). Britto could write out his sentences before he leaves, but he is worried that they could be disregarded by the other justices, which is what has happened to sentences that former justice Cezar Peluso left when he retired in September.
In November, the new Chief Justice will be Joaquim Barbosa (he will serve as Chief Justice for two years and be succeeded by the next most senior justice who has not been Chief Justice, Ricardo Lewandowski).
During this final phase of the mensalão trial (besides the fact that it may not be all that final – see below), there is the very real possibility of justices revising and changing their votes. Among other things, there is a popular thesis on the court that various counts of the same crime can be seen as one crime (“continuidade delitiva”), an idea that definitely tends to favor the accused (“uma tese bastante favorável aos réus”).
And, of course, there is a rub: when the court concludes the trial, the case will not be over. The final decision has to br negotiated and published (“acordão”) – which can take months. Then, for the smart, well-paid defense lawyers, there still remain a couple of legal maneuvers: questions regarding unclear or confusing points in the decision (“embargos de declaração”) must be ruled on and there is the fact that Brazilian law may allow retrials of defendants found guilty in votes that were not unanimous (“embargos infringentes”).
Finally, there is the longstanding tradition of the Brazilian Supreme Court not to send anyone to jail until he or she has completely exhausted the appeal process (this is so strongly rooted in the court’s jurisprudence that it has a name: “garantism” – the meaning being that a fundamental right of all those accused is to have the court guarantee (protect) all their rights to due process).
Allen Bennett – translator/editor The News in English
Link - Julgamento do mensalão completa três meses sem data para acabar
Link - Penas do mensalão podem sofrer redução ao final do julgamento
Link - Ayres Britto pode sair do STF sem deixar penas do mensalão por escrito
