Former President Lula’s defense presented today (02/04) to the Federal Supreme Court (STF) an opinion issued by Jurist José Afonso da Silva, a retired Law Professor at the University of São Paulo Law School, demonstrating that “The principle or guarantee of presumption of innocence has been amended by item LVII of Article 5 of the Federal Constitution, that is, until the judgment of conviction is final and unappealable.” “Executing the sentence before that,” he goes on “is a serious violation of the Constitution when it comes to one of the fundamental elements of a democratic state that abides by the rule of law, which is a fundamental individual right.”

Afonso da Silva is the most quoted jurist in the Supreme Court in decisions regarding the abstract control of the Federal Constitution. He drew up the “pro bono” (no fees) Legal Opinion because, as he explained, he is exercising an “imperative duty” to “uphold the Constitution”: “I affirm that I have the ‘duty of defending’ the Constitution, and that assertion stems from the fact that I have worked hard, I have tried with all my power to make sure the constitution essentially aims at effectively guaranteeing fundamental human rights, confident that the Courts, especially the Court in charge of safeguarding it, to interpret the provisions regarding such rights, according to the idea that their understanding must always be expansive and never restrictive.”

In his answers to the questions asked by the former president’s defense, José Afonso da Silva said the following:

“Question 1:
The presumption of innocence principle was amended by item LVII of Article 5 of the Federal Constitution, that is, until the judgment of conviction is final and unappealable. Executing the sentence before that is a serious violation of the Constitution when it comes to one of the fundamental elements of a state that abides by the rule of law, which is an individual and fundamental right (…) Thus, there is maximum preclusion, without which, due to the principle of presumption of innocence, the sentence can be executed neither definitively nor provisionally, under penalty for violating the Constitution.

Question 2:
No. It certainly does not comply with item LVII of Article 5 of the Constitution, the decision of the Federal Supreme Court in Habeas Corpus 126.292 that states “the provisional execution of a judgment of conviction upheld by an appellate court, even if subject to special or extraordinary appeals, does not compromise the constitutional principle of the presumption of innocence.” I cannot understand how the Supreme Court, which is supposed to safeguard the Constitution, thus being considered a Constitutional Court, was able to render such a decision clearly against such constitutional provision.

Question 3:
No. It does not comply with Article 5, LVII of the Constitution the interpretation of the Regional Federal Court of the 4th Region to start the execution of the sentence imposed on Lula immediately after the exhaustion of the jurisdiction of that Court, and not after the final and unappealable decision. The Court commits a serious unconstitutionality with this order.

Question 4:
No. The order to provisionally execute the sentence imposed on Lula, ordered on their own initiative, merely mentioning precedents of the Federal Supreme Court, and also being, faced with the concrete elements, unnecessary, is not compatible with Article 5, item LVII of the Constitution. The Brazilian criminal procedure system, according to the Constitution, is governed by the accusatory principle, in which it is required that the judge cannot act on his own initiative, ‘nemo iudex sine actor’. And the execution is admittedly an autonomous administrative process, so it can only be initiated when properly provoked.

Question 5:
Yes, certainly. The factual context presented in Habeas Corpus 152,752 – revealing the imminent possibility of executing Lula’s sentence before the decision on his conviction is final and unappealable – is a case of blatant illegal constraint capable of eliminating the incidence of Precedent 691/STF. “Any unlawful or unconstitutional decision of a judge or court constitutes a constraint against which a petition for habeas corpus is applicable, in order to avoid the execution of illegal and constraining action.”

Professor José Afonso da Silva’s Legal Opinion shows that the petition for habeas corpus filed by the defense of former President Lula is based on the only possible interpretation of Article 5, item LVII, of the Federal Constitution, which prohibits the early execution of the sentence without a final and unappealable judgment of conviction (res judicata). We hope this result prevails in the judgment to be held on April 4, especially for reaffirming the Constitutional Text itself.

CRISTIANO ZANIN MARTINS
Former President Lula’s Attorney

Click here to read the document (available in portuguese)