Supreme Court rules against dismembering mensalão

Yesterday, August 2, in the first session dealing with the mensalão case (technically, Penal Case 470 (“Ação Penal 470”)), the Brazilian Supreme Court (“STF”) voted 9 to 2 to handle the case as a whole, that is, all 38 defendants together, rejecting a motion by a defense lawyer to split the case into two parts (“desmembrar”) with most of it going to a lower court. In fact, the STF had already decided against dismembering Ação Penal 470 on three different occasions since 2006.

The lawyer, Márcio Thomaz Bastos, a former minister of Justice (Attorney General), who is defending a former bank manager, asked why the case was being tried before the Supreme Court when only three of the defendants, as federal deputies, had a right to privileged criminal venue (“foro privilegiado”). The three members of the Chamber of Deputies are: Pedro Henry (PP-MT), João Paulo Cunha (PT-SP) and Valdemar Costa Neto (PR-SP).

Bastos then raised a legal question: he pointedly referred to the fact that the accused in Brazil effectively have a right to be tried twice; that is, they have a right to appeal a conviction. In the Supreme Court, complained Bastos, there was no way to appeal a decision.

At that point, the country’s chief prosecutor (“procurador-geral da República”) Roberto Gurgel, expressed his opinion that the case should not be divided into parts (“desmembramento”). After that, a heated discussion took place between associate justices Joaquim Barbosa (“redator”) and Ricardo Lewandowski (“revisor”) on the subject with Barbosa closing by saying: “There is no reason [to go through this again], I think it is actually irresponsible to return to a discussion of this matter.”

Even so, Lewandowski then presented a long argument in favor of dividing the case. The next associate justice to vote was Rosa Weber who declared that the STF simply could not return to endless discussion of a matter that had been decided in the past. Justices Cesar Peluso, Gilmar Mendes, Luiz Fux, Antonio Dias Toffoli, Carmen Lucia Celso de Mello and the Chief Justice, Carlos Ayres Britto, all voted with Barbosa and Weber against dismembering.

The only justice to join Lewandowski in voting for sending part of the case to a lower court was Marco Aurélio Mello, who did so calling the right to due process (“direito de defesa do réu”) the backbone (“medulla espinhal”) of the legal system.