The 90-day period for reviewing the preventive prison maintenance, if not followed, does not imply its automatic revocation. The understanding was signed by the Federal Supreme Court on trial this Thursday (10/15).
The central theme of the debate was the suspension of an injunction granted by Minister Luiz Fux, which determined that drug dealer André Oliveira Macedo, André do Rap, should be arrested again.
The analysis of the ministers could be divided into two parts: the interpretation to be given of article 316 of the Code of Criminal Procedure and the possibility for the President of the Court to suspend the decision of one of his peers.
Regarding the interpretation of article 316 of the CPP, the wording of which was changed by the “anti-crime” law (Law 13.964 / 2019), the ministers fixed a thesis. “Failure to observe the nonagesimal term of Article 316, of the CPP, does not imply automatic revocation of pre-trial detention, and the competent judge must be urged to reassess the legality and timeliness of its grounds.”
Minister Marco Aurélio was defeated, who understands that the Supreme Court would be invading the competence of the Legislative Power to deal with the matter.
Regarding the vote on the referendum, the court already had a majority formed to maintain Fux’s decision – provided it was extremely exceptional. On Thursday, ministers Cármen Lúcia, Ricardo Lewandowski and Gilmar Mendes joined the choir. Provisions were made regarding the scope and the need to standardize the understanding of the competence of the President of the Court to suspend another minister’s decision in criminal matters.
Marco Aurélio was also beaten on this topic. He reported to Habeas Corpus that he ordered the defendant to be released, applying the literal understanding of the law and pointing out that there was unlawful constraint in maintaining pre-trial detention, since the accused had been in custody for more than 90 days without guilt and without renewing the grounds from prison.
In his vote, Minister Gilmar Mendes pointed out that Rosa Weber was the rapporteur of the operation that arrested the trafficker, so that she would be preventa to judge the HC, which was randomly distributed to Marco Aurélio.
For Gilmar, it would be necessary to reform the court’s rules to avoid fraud in the distribution of the case. The minister said that, in the specific case, neither the Attorney General’s Office “is immune from criticism”, since it presented the challenge only on Saturday.
“It was only on Saturday, October 10, 2020, when the release order had already been fulfilled, that the parquet filed the injunction request under examination, on Saturday, at 19:46. This only arrived on Saturday! HC was given at Tuesday. It is a festival of errors, mistakes and omissions! “, said Gilmar.
Fux understood that there is a mistake in the distributions and in the prevention system. To resolve the conflict, he announced that he will publish today an act of the presidency to pacify the issue.
Ministers Lewandowski, Gilmar and Marco Aurélio were defeated in the preliminary analysis of the SL.
Lewandowski cited precedent of suspension of injunction reported by Minister Cármen Lúcia, who, when in the presidency of the court, denied following up the appeal (SL 1,117) claiming that any other understanding “would make the performance of the president of this Supreme Court feasible as a kind of reviewer of the preliminary measures handed down by the other ministers, which is inadequate, since they are part of the same jurisdiction, and there is no question of internal hierarchy “.
Carmen also recalled the precedent in SL, but considered that Fux’s decision was legitimate based on three criteria: “1) demonstrated exceptionality; 2) qualified urgency; and 3) the motivation formalized in the decision”.
For Lewandowski, however, the appropriate instrument to question Marco Aurélio’s HC would be “the regulatory appeal, whose natural judge, in this case, would be the 1st Panel and not the Plenary”. “The danger of granting such discretion to the leaders of the Court, allowing them to act in situations that they themselves consider exceptional, consists of the risk that they will overturn decisions of colleagues based on mere personal idiosyncrasies or perhaps driven by some political bias. “, he argued.
Gilmar recalled that he himself participated in the drafting of Law 8,437, invoked by Fux to accept the appeal, and pointed out that the interpretation of Article 4 presented is not sustainable. “It had nothing to do with the object we are discussing. It had to do with the lack of a counter-caution regime for situations in which there was no way to ask for the suspension, because it was a precautionary sentence and not a preliminary injunction. , and this is in the explanatory memorandum of the MP that was converted into law. “
Mendes also highlighted the risks of adopting interpretation systematically in the Supreme Court. “We are in a court whose primary activity is the custody of the Constitution. And the quantitative and qualitative increase in State intervention in social matters means that even the routine exercise of our jurisdictional activity results in incursion into matters of high social and political impact. Logo , it does not demand much imagination effort to consider that, in the light of the interpretation tested in these records of article 4 of Law 8,437, any and all interested parties who have suffered succumbing due to a monocratic decision will certainly knock on the doors of the presidency “, warned the minister.
“For all these reasons, it must be noted that, taken by an absolutely incompetent court, the preliminary injunction does not fail to violate the public order it promises to protect”, concluded the minister.
Marco Aurélio, rapporteur of the original HC, also voted for not knowing about the injunction suspension, making harsh criticisms of President Luiz Fux for having, as President of the Court, revoked a decision of a couple. He stated that he will take the original Habeas Corpus request to the correct collegiate body for consideration of the decision, which is the 1st Panel, and not the Plenary.
“I believe that the President is a coordinator of equals, being responsible even for a greater interaction between the members of the court, and for that very reason it must be cotton between crystals. It cannot act in a shaky way, it cannot be, in relation to his peers, a censor, leading the Judiciary to discredit “, affirmed the new dean of STF.
On the last day 2, Marco Aurélio determined the release of André do Rap. In August, the minister had already accepted another request from Habeas Corpus for his defense, for the same reasons. He just wasn’t released because there was another conviction against him, which was the target of HC’s new request.
André was released this Saturday morning (10/10). At night, Fux answered the request of the Attorney General’s Office and the request for Suspension of Injunction for the accused to be arrested again. According to the minister, there was a risk to public order if André were released.
The decisions brought about an imbroglio of understandings. For Marco Aurélio, the suspension of the injunction could not have been done as it was because it “discredited” the Court. According to the minister, Fux tried to respond to popular concerns in an “unbridled search for justice”.
“It is the practice of autophagy, which only discredits the Supreme,” he said. “Obviously, he doesn’t have that power, but, as times are strange, anything is possible,” added the minister. “Minister Gilmar said it well, in the last session, repeating my speech in office: he is the coordinator of equals and not a superior.”
Click here to read the vote of the rapporteur
Click here to read Lewandowski’s vote
Click here to read Gilmar Mendes’ vote