The Superior Courts Newsletter presents the most important decisions to the business community of the Brazilian Superior Courts which occurred in the last month.

Supreme Court of Brazil - STF

Minister Gilmar Mendes suspends arrest of the head of former governor’s office in second instance

Minister Gilmar Mendes, Justice of the Supreme Court, granted a preliminary injunction in habeas corpus submitted by the defense of attorney Rodrigo Stefenoni, former chief of staff of the Governor’s Office of Espírito Santo, who was sentenced by the Federal Court of Appeals to a semi-open detention regime for embezzlement.

As a result of the confirmation of the aforementioned conviction, the MM. Judge of the 1st Federal Criminal Court of Espírito Santo, in response to the request made by the federal attorney’s office, determined that the sentence imposed last April could be put into effect

According to Mendes, the case gives rise to an overturning of stare decisis precedent No. 691 of the Supreme Court, on the grounds of exceptionality, since only the granting of a preliminary injunction will be able to avert the embarrassment of blatant illegality.

For the rapporteur, the execution of the sentence maintained by the Federal Court of Appeals should await judgment of appeal to the Federal Superior Court of Justice. In this case, there is still pending judgment on the appeal review submitted by the Stefenoni defense.

Mendes considered that a preliminary injunction should be granted, in accordance with the principle of reasonable length of procedure and the plausibility of accepting the allegations sustained by the defense in the special appeal.

As a result, Mendes partially granted the application for a preliminary injunction to suspend the commencement of the provisional execution of the sentence until the judgment of merit has been made. 

Lawsuit HC 146.818

Minister Dias Toffoli suspends Federal Audit Court’s decision against settlement between Federal Government and Cemig

Minister Dias Toffoli granted an injunction to suspend judgment of the Federal Audit Court(“TCU”) against a settlement between the federal government and Companhia Energética de Minas Gerais (“Cemig”) regarding renewal of concessions for the Jaguara, São Simão and Miranda hydroelectric plants. The decision was taken in the writ of mandamus No. 35.192 filed by Cemig against the TCU’s decision.

The TCU based its decision on the understanding that the ongoing negotiation between the federal government and the energy company would jeopardize the bidding process of the plants launched by the National Electric Energy Agency (Aneel), with a date scheduled for September 27 . The TCU further alleged that it was unaware of the terms of the ongoing settlement.

For Minister Toffoli, the TCU extrapolated its competence by suspending the progress of the administrative settlement attempt of two judicial litigants, even though it had the authority to follow up the negotiation and to honor the terms of its clauses. The negotiation could be stalled only by the parties themselves, who had the consent of Minister Toffoli to begin the negotiation.

Writ of mandamus No. 35.192

Federal Superior Court of Justice - STJ

Federal Superior Court of Justice publishes six new judicial precedents

The sections of criminal law and public law of the Federal Superior Court of Justice (STJ) each approved three new precedents, which comprise a summary of understandings consolidated in the court's judgments and serve as guidance to the entire legal community regarding the jurisprudence of the STJ.

Criminal Law

In the Section 3 of the STJ’s treatment of criminal law, statements 587, 588 and 589 were approved, dealing with crimes of interstate trafficking and violence against women. The precedents will be published in the Diário da Justiça Eletrônico in the near future for each of the three statements, in terms of Article 123 of the Internal Regulations of the STJ.

Precedent 587: For the incidence of aggravating circumstances provided for in Article 40, V, of Law 11.343 from 2006, it is unnecessary to effectively cross borders between states of the federation, as an unequivocal demonstration of intent to carry out interstate traffic is sufficient.

Precedent 588: The committing of crime or misdemeanor against women with violence or serious threat in the domestic environment makes it impossible to substitute deprivation of freedom with restriction of rights.

Precedent 589: The precept of insignificance in the crimes or misdemeanors committed against women in domestic affairs is inapplicable.

Public Law

The Section 1 of the STJ’s treatment of public law, approved statements 590, 591 and 592. One deals with the incidence of income tax in cases of liquidation of private pension entities and two are related to procedures applied in the scope of administrative disciplinary process.

Precedent 590: Designates an asset increase intended to attract income tax, in the event of liquidation of a private pension entity. The amount that will be payable to each party, by apportionment of the equity, will be higher than the amount of the respective contributions to the entity in liquidation, duly updated and corrected. 

Precedent 591: "Borrowed evidence" is allowed in the disciplinary administrative proceeding, provided that it is duly authorized by the competent court and that respect for adverse parties and due process is followed.

Precedent 592: Exceeding the deadline for conclusion of the disciplinary administrative proceeding will only result in nullity if there is evidence of damage to the defense.

For the Third Class of the STJ, a clause that allows for delayed delivery of property purchased pre-construction is valid

In the market for the purchase and sale of preconstruction real estate, unpredictable factors that can disrupt construction – such as natural events, labor shortages and supply shortages – necessitate the contract clause that establishes a grace period for work delays. However, delivery of the property cannot exceed 180 days from the estimated date of completion and, as a result, the consumer must be notified regarding the use of the clause and the justification for the extension of the deadline.

Based on this understanding, the STJ’s Third Class denied a special appeal by a certain number of buyers who alleged that the grace period clause in real estate purchase and sale contracts was abusive.

Lawsuit REsp 1.582.318

Superior Labor Court – TST

Superior Labor Court votes in “triple list”

In an ordinary session held on September 18, the plenary of the Superior Label Court (TST) determined the names of the judges to fill the vacancy of minister of the Court, allocated to the judiciary, by means of a so-called “triple-list” vote – a three-name list of candidates proposed for further voting. The judges elected included: Samuel Hugo Lima, Labor Court of Appeals of the 15th Region, Campinas / SP, with 19 votes in the first poll; Breno Medeiros, 18th Region, GO, with 14 votes in the second poll; and Francisco Rossal Araújo, Labor Court of Appeals of the 4th Region, RS, with 14 votes in the third poll.

The vacancy comes as a result of the retirement in August of Minister Barros Levenhagen. The choice, according to the Internal Regulations of the TST, is by secret ballot. 

The “triple-list” will be sent to the President of the Republic, who will select one of the names. The chosen candidate will have to pass questioning and approval by the Commission of Constitution, Justice and Citizenship of the Senate, and later by the absolute majority of the plenary of the Senate.

Agreement with Federal Audit Court will speed up labor enforcement procedures

The Supreme Council of Labor Justice and the Federal Audit Court (TCU) signed a technical cooperation agreement for the exchange of information and databases of the Technology Laboratory for Asset Recovery and Combating Corruption and Money Laundering (Lab-CSJT). This laboratory is part of the National Network of Technology Laboratories (REDELAB), coordinated by the Ministry of Justice.

The president of the CSJT and the Superior Labor Court, Minister Ives Gandra da Silva Martins Filho, explained that the agreement allows access to TCU databases in the same way as it has been done with the Ministry of Justice, the Navy and other entities. "With all these tools, we will be able to ensure that the worker not only wins the case, but also receives what is rightfully his within a short time," he said.

LAB-CSJT and the laboratory of the TCU (LabContas) operate in order to share experience, techniques and solutions for the analysis of financial data, as well as for the detection of crimes related to corruption. The Council is the first institution of the judiciary to have this type of laboratory, instituted and regulated by Resolution No. 179/2017 of the CSJT.

In 2014, the CSJT instituted, through Resolution 138, the legal enforcement of the Regional Labor Court (TRTs) to create “Patrimonial Research Centers” (NPPs), which are financial intelligence units with the purpose of acting in difficult operations - those that involve large masses of data to be analyzed, debtors involved in scams, sophisticated techniques and strategies difficult to identify by the court. These acts can be framed as crimes of money laundering, concealment and tax evasion. Consequently, the CSJT has partnered with REDE-LABin order to solve difficult cases, and assist NPPs when requested. 

Federal Audit Court – TCU

Administrative fines from regulatory agencies are not widely disclosed

The low rate of issuance and collection of administrative fines by regulatory or supervisory agencies is information not widely divulged to the general public. The finding was the subject of a monitoring lawsuit judged by the Federal Audit Court (TCU), which verified the disclosure of revenue from fines in the annual management reports of regulatory agencies, auditing agencies and other supervisory entities.

The latest monitoring operation evaluated whether the resolutions were met and produced new determinations for the agencies, including the National Water Agency, the National Civil Aviation Agency, the Central Bank of Brazil, the Securities Commission and the Administrative Council for Economic Defense. It was determined that these agencies should include in their Annual Management Reports information such as the number of fines canceled or suspended in administrative instances and percentages of fines collected during the year, among others.

The revenue from fines by agencies or inspection entities increased from R$ 185,4 million in 2011 to R$ 939,6 million in 2014, a 406% increase in the period.

Lawsuit: 029.688/2016-7 – Judgment 1970/2017 – Plenary

TCU sentences former Petrobras managers to pay debts and fines for the purchase of Pasadena

The Federal Audit Court (TCU) held former Petrobras president José Sérgio Gabrielli and former company director Nestor Cerveró accountable for the purchase of the Pasadena Refinery – an oil refinery in Pasadena, Texas with ties to the “Operation Carwash” scandal in Brazil. Both were jointly sentenced to return more than U$ 79 million to the treasury. The decision also disqualified the ex-managers from exercising a committee position for a period of eight years, and applied an individual fine of R$ 10 million.

In order to ensure compensation for damages, the TCU requested the Attorney General's Office (AGU) and the Chair of Petrobras, through the Public Prosecutor's Office, to adopt measures for the seizure of assets of Gabrielli and Cerveró. This is the first merit decision of the four Special Acccounts Proceedings (TCE) instituted to determine possible losses related to the purchase of the Pasadena refinery by Petrobras America Inc. (PAI), a subsidiary of Petróleo Brasileiro, against the Belgian group Astra Transcor. This process specifically analyzed the signing of the Letter of Intent.

The rapporteur of the case, Minister Vital do Rêgo, upheld that Gabrielli and Cerveró signed the letter of intent for the purchase of the second half of Pasadena without the authorization of the executive board and the board of directors of Petrobras.

In the same judgment, the Federal Audit Court ordered that members of the executive board be called upon for a hearing to explain the approval of an uneconomical offer contained in the Letter of Intent, proposing the acquisition of the remaining 50% of the Pasadena Refinery.

Lawsuit: TC: 005.261/2015-5 – Judgment No. 1881/2017– TCU – Plenary