Why did the STF release Dirceu and send Bruno back to prison?

José Dirceu’s preventive detention (left) was suspended while Bruno Fernandes had to go back to prison.

The ministers of the Second Panel of the STF (Supreme Federal Court) decided yesterday to release former Chief of Staff José Dirceu (PT), who had been in preventive detention since 2015, in Curitiba. The politician left the Criminal Medical Complex, in the metropolitan region from the capital of Paraná, this Wednesday (3), around 4 pm, one day after the Supreme Court’s determination.

Dirceu’s release caused a stir on social networks and some netizens began to compare the former minister’s case with that of goalkeeper Bruno Fernandes de Souza, 32, convicted of killing Eliza Samúdio.

Last month, the First Panel of the STF decided to send the goalkeeper back to prison, a month after a preliminary ruling in habeas corpus to the contrary.

Bruno was sentenced to 22 years in prison for the death of his ex-girlfriend Eliza Samúdio. Dirceu, on the other hand, was convicted twice by judge Sergio Moro for crimes such as passive corruption, money laundering and participation in a criminal organization. In addition, the two sentences lead to 34 years in prison.

What do the two cases have in common? Almost nothing, according to specialists heard by UOL, who said that it is not possible to compare the two decisions from a legal point of view and that they should, yes, have different understandings.

“These are different cases. You can’t compare bananas with oranges,” said criminalist Fabio Tofic Simantob.

The only similarity between the two cases is that both were convicted only in the first instance by a judge. According to a rule adopted by the STF, the defendants only start serving the prison sentence after the conviction is confirmed in the second instance, by a court.

In other words, despite being convicted, neither Bruno nor Dirceu are serving their sentence yet. Both were in preventive detention.

If you’re wondering why the STF maintained Bruno’s preventive detention and ordered Dirceu released, UOL will answer you. If you don’t even know what preventive detention is, don’t worry, UOL also explains it to you.

What is preventive detention?

Preventive detention can be decreed before the suspect is definitively convicted, both in the investigation phase and during the criminal proceedings, when the defendant has already been denounced.

The Code of Criminal Procedure provides for three situations in which preventive detention can be decreed: to guarantee public order and economic order (prevent the defendant from continuing to commit crimes), for the convenience of criminal instruction (prevent the defendant from interfering with the progress of the process, threatening witnesses or destroying evidence) and to ensure the application of the criminal law (to make it impossible for the defendant to escape, ensuring that the penalty imposed by the sentence is fulfilled).

“People are confusing. Preventive detention is one thing, the beginning of the sentence is another thing. What the Supreme Court decided is that the penalty does not start with the final decision, but after the decision in the second degree”, explained Simantob. According to him, meanwhile, people must respond in freedom.

Dangerous agent

The main difference between the cases is that the goalkeeper was convicted of murder and was considered a dangerous agent, explains Celso Vilardi, professor and coordinator of the criminal and economic law course at FGV (Getúlio Vargas Foundation). “One of the reasons for not suspending preventive detention is when there is a chance of repetition, of committing a new crime”, he says.

The arguments used to free Dirceu were that, as he had already been convicted in two cases, it was unlikely that he would be able to interfere in the investigations through, for example, concealing evidence or intimidating witnesses.

In addition, the ministers also considered that the crimes for which he was accused are not recent, which would weaken the argument of the need to keep him in pre-trial detention, as a way to prevent him from re-committing infractions.

Finally, they also considered that the possibility of Dirceu breaking the law again has been reduced since the PT left the federal government. “The political group that was ahead of Petrobras is no longer there,” said Minister Dias Toffoli.

Different classes, different ministers

O Supremo é coThe Supreme is composed of two groups, formed by five ministers each, and the president of the STF does not participate. Bruno and Dirceu’s habeas corpus appeals were judged by different groups. Bruno for the 1st Class, and Dirceu for the 2nd.mposto por duas turmas, formadas por cinco ministros cada uma, sendo que a presidente do STF não participa. Os recursos de habeas corpus de Bruno e Dirceu foram julgados por turmas diferentes. Bruno pela 1ª Turma, e Dirceu pela 2ª.

By three votes to one, the ministers of the First Panel decided to overturn a February decision by Minister Marco Aurélio Mello, which had ordered Bruno’s release, after six and a half years in prison. The ministers Alexandre de Moraes, Rosa Weber and Luiz Fux voted in favor of his return to prison. The only opponent was Mello, who had granted the habeas corpus that allowed the goalkeeper’s release.

The Second Panel, formed by ministers Celso de Mello, Gilmar Mendes, Ricardo Lewandowski, Edson Fachin and Dias Toffoli, was in charge of judging Dirceu’s case. The understanding of three members of the Panel — Mendes, Toffoli and Lewandowski — was the to grant habeas corpus to the former minister.

“The classes are composed in different ways and, therefore, they have different views”, explains lawyer Mauricio Zanoide de Moraes.

According to him, the Court lacks consistency in dealing with controversial issues such as the suspension of preventive detention. “The divergences in the STF have been constant. We are seeing that decisions depend much more on who the minister is judging, on what the Constitution itself is about”, he says.

Simantob, on the other hand, claims that there is a margin for judges to interpret the law. “There are vague terms in the law. For example, what is it to threaten public order? In each case, it is up to the judge to understand whether or not this threat exists,” he says. He makes the reservation, however, that this understanding has the jurisprudence as a limit. “Of course, there are guidelines defined by jurisprudence, which says what cannot be used to decree preventive detention.”

justice doesn’t act like a robot

For a decision in the legal field to be fair, it is necessary to analyze the context and all the particularities of the matter, argues lawyer David Rechulski, a specialist in the criminal area. “It is common to imagine that a decision must be generalized, expanded to all cases. But it doesn’t work that way. You have to look at the particularities of the concrete case.”

Rechulski defends that the Judiciary Power is practiced by men, who always evaluate a context. “Justice cannot be robotized”, he argues.

Rapporteur for habeas corpus in Bruno’s trial, minister Alexandre de Moraes said he did not identify excessive deadlines or inertia on the part of the Judiciary. “The case was complex, with a series of appeals not only from the Public Ministry, but also from the defense,” said Moraes.

The minister stated that the Jury of the District of Contagem, in Minas Gerais, analyzed, judged and applied the penalty it deemed due and defended the sovereignty of the verdict of the popular jury. He also highlighted that Bruno is a confessed defendant.

Source: Daniela Garcia and Mirthyani Bezerra Do UOL, in São Paulo