In 2016, in the judgment of habeas corpus nº 126292/SP whose reporter was the Minister Teori Zavascki, the Supreme Federal Court changed the position it had been maintained since 2009[1] and began to allow the provisional execution of the sentence. Although it is not a binding precedent, since the decision was handed down in a habeas corpus, it has been widely adopted by judges and courts.

After, in May 2016, the National Ecological Party and the Federal Council of the Brazilian Bar Association proposed the Declaratory Actions of Constitutionality nº 43 and 44, whose reporter is the Minister Marco Aurélio, requesting the declaration of constitutionality of article 283 of the Code of Criminal Procedure and the granting of the provisional measures to determine the suspension of the provisional execution of the sentence.

Occurs that the provisional measures, judged jointly, were rejected in October 2016, maintaining the understanding of the habeas corpus nº 126292/SP. However, the decision of the provisional measures, as well as the decision of HC 126292/SP, are not binding precedents, which will only exist when the merit of the ADCs will judged.

Still in 2016, more precisely in November, the Federal Supreme Court reviewed the matter again, and in the judgment of the Extraordinary Appeal with Appeal nº 964246/SP[2], the Court reaffirmed the understanding that it is possible the provisional execution of the sentence.

In 2018 the defense of ex-President Lula filed for a preventive habeas corpus in the Federal Supreme Court to avoid the provisional execution of the sentence, however, once again, the Court confirmed the understanding that after confirmation of the conviction in the second instance it is possible the execution of the sentence.

Afterwards, the National Ecological Party requested a new provisional measure in ADC 43, claiming as a new fact the change of position of Minister Gilmar Mendes in the aforementioned habeas corpus, that there should be no provisional execution of the sentence, and the position of Minister Rosa Weber, who voted in favor of the provisional execution of the sentence, but mentioned that if she were judging the ADC, the positioning would be different.

Also in April 2018, the Communist Party of Brazil filed the ADC nº 54, whose the reporter is the Minister Marco Aurelio, requesting a preliminary injunction to prevent the provisional execution of the sentence without res judicata.

On December 19, 2018, at 2:00 p.m., the reporter, Minister Marco Aurélio, voted to grant the preliminary injunction recognizing the constitutionality of Article 283 of the Code of Criminal Procedure and ordering the suspension of the provisional execution of the sentence before the final judgment of the conviction.

However, in the same day 19.12.18 at 19:39 p.m., the Chief Justice of the Federal Supreme Court, Minister Dias Toffoli, overturned the decision of Minister Marco Aurélio, because according to the Minister, the Plenary is that it should evaluate the request to revoke the early execution.

However, in the same day 19.12.18 at 19:39 p.m., the Chief Justice of the Federal Supreme Court, Minister Dias Toffoli, overturned the decision of Minister Marco Aurélio, because according to the Minister, the Plenary is that it should evaluate the request to revoke the provisional execution of the sentence.

The judgment of the merit of the Declaratory Actions of Constitutionality is scheduled for April 10, 2019, and the decision to be delivered by the Plenary of the Federal Supreme Court will be a mandatory precedent, producing effectiveness against all and binding effect, under the terms of Article 102, §2 of the Federal Constitution and article 927, I of the Code of Civil Procedure.