Brazil’s chief justice strikes down ruling that could have set Lula free

Dias Toffoli struck down a ruling by his colleague Marco Aurélio Mello ordering the release all prisoners jailed before exhausting all remedies. Mello responded that only a full court could overturn his decision

December 20, 2018 by Brasil de Fato
in response to a petition Dias Toffoli 's decision was in response to a petition filed by the country’s federal attorney general, Raquel Dodge.

Five hours after Brazil’s Supreme Court justice Marco Aurélio Mello issued a ruling to release all prisoners jailed before exhausting all remedies – a decision that could free former president Luiz Inácio Lula da Silva –, the top court’s chief justice and duty judge Dias Toffoli struck down the decision, in response to a petition filed by the country’s Federal Attorney General, Raquel Dodge.

During recess duty on Wednesday afternoon, Toffoli argued the preliminary injunction issued by Mello would hurt legal certainty and threaten public order and security. He added that an en banc session to review the case should be held after the Supreme Court gets back from recess, on Apr. 10, 2019.

Justice Marco Aurélio Mello told BuzzFeed News that only the full court could overturn his original ruling. “Only the panel is above individual justices. Otherwise, there would be undesired instability for the justice system,” Mello said. “Only the panel [could strike down his ruling]. May good Law prevail,” he added.

Before Toffoli’s decision to overturn his colleague’s injunction, justice Mello had told news channel Globonews that, if the Supreme Court duty judge knocked down his ruling, that would mean “an attack on the rule of law.”


After Mello’s ruling, Lula’s defense team filed a petition to release the former president, who has been serving a 12-year prison sentence since April. The deputy judge overseeing the case, Carolina Lebbos, denied the petition, arguing she would wait for the Federal Public Prosecutor’s Office (MPF) to issue an opinion on the case. Lebbos also argued there are previous en banc decisions of the Supreme Court denying Lula’s appeals to be released.

The Workers’ Party chair and senator Gleisi Hoffmann challenged Lebbos’ decision, arguing it is not up to the prosecutor’s office to issue opinions on decisions, but rather appeal them. “It’s a clear attempt to stall,” she said.

Moments later, following Dias Toffoli’s move, ex-president Lula’s lawyers filed a petition for the trial court to execute the release order anyway. The defense argued, like justice Mello, that Dias Toffoli could not have overturned his colleague’s ruling, claiming it is “outright unreasonable to suspend rulings issued by other Supreme Court justices.”