The majority of the ministers vote in the Supreme Court to keep the prison of drug trafficker André do Rap | Politics

Out of ten ministers, six expressed this understanding. After the vote of Dias Toffoli (the sixth), the session closed and will continue this Thursday (15), with the votes of the other four ministers.

The understanding maintains the decision of the President of the Court, Luiz Fux. On Saturday (10), Fux annulled a court order (provisional decision) from colleague Marco Aurélio Mello, which had granted the criminal’s release.

On Wednesday the ministers Luiz Fux (speaker), Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Rosa Weber and Dias Toffoli voted.

The six considered that the failure to review a preventive prison every 90 days – provided for in the anti-crime package approved by Congress, which modified the Criminal Procedure Code and motivated Marco Aurélio Mello’s decision – does not imply the automatic release of the prisoner .

The trial does not include the participation of Celso de Mello, a minister who retired on Tuesday (13) and has not yet been replaced.

André do Rap, one of the heads of a criminal faction that works inside and outside São Paulo prisons, has been in prison since September 2019. He was convicted in the second instance for international drug trafficking with penalties totaling more than 25 years of prison.

André do Rap was released after a precautionary measure (temporary decision) granted by Minister Marco Aurélio on the last day 2. The minister relied on article 316 of the Code of Criminal Procedure, according to which a preventive (provisional) detention it becomes illegal if it is not reviewed every 90 days by the responsible court.

When voting, the minister Luiz fux He claimed that he overruled the colleague’s decision in an “extremely exceptional” manner. According to him, the decision violated several STF precedents, benefiting a faction leader who “remained on the run for five years and was convicted of trafficking four tons of cocaine.”

Fux also said that André do Rap “mocked the Justice” for having taken advantage of the decision to “evade immediately” and “committed procedural fraud by indicating a false address.” The drug dealer is now considered a fugitive and is on the wanted list of Interpol, the international police.

Regarding the anti-crime package approved by Congress, which introduced in Article 316 of the Penal Code the device on the basis of which Marco Aurélio Mello made the decision, Fux affirmed that this “does not lead to the automatic revocation of preventive detention” and that legality must be analyzed. and the opportunity of preventive grounds before granting habeas corpus.

“[A soltura] it is only possible through a reasoned decision of the judging body, in the sense of the absence of the reasons that justify caution, and not the mere passage of time ”, he stated.

As the G1, Minister Marco Aurélio Mello has strictly applied the new legislation. There were at least 79 releases due to lack of revaluation of the prisons by the competent courts, including serious crimes, such as homicide, and less serious, robbery.

The minister Alexandre de Moraes He affirmed that André do Rap is a criminal “of maximum danger” and, in a “total disregard for the police and Justice, he was a fugitive for five years.

“After these five years, he was detained in a Nababesque life, in a house facing the sea, and with him a helicopter was found, at a cost of approximately R $ 8 million, two boats, of R $ 5 million, innumerable others goods. . In other words, it has continued during these five years carrying out drug trafficking, ”argued the minister.

For Moraes, “it is not a mere preventive detention. He has a double sentence in high school for a total of 25 years. Furthermore, he continues to be investigated for other crimes ”.

According to the minister, the anti-crime package does not authorize the automatic release of prisoners for lack of review of prisons. According to him, the prison can become illegal, but “through mandatory analysis.

“There is no automaticity, no fatal deadline has been set. The law does not say: preventive detention has 90 days. If you want to extend it, decree again. Do not say that. She says an analysis is needed. And the analysis presupposes the peculiarities of each case ”, he declared.

Accompanying the rapporteur Fux, Alexandre de Moraes also suggested that the prison review should not be applied when it comes to convicted in the second instance.

The minister Edson fachin He accompanied the rapporteur and stated that the judge must investigate the delay in each case, since provisional detention requires “constant inspection”.

For Fachin, the review is the responsibility of the prison issuing body and, in the case of André do Rap, this prison was maintained with the sentence.

“The legislative innovation, in the face of the finding of the inadmissibility of the prisons and the total failure of the penitentiary system, seeks to create the conditions for the execution of precautionary measures to restrict freedom due to the deficiencies of the criminal justice system,” said Fachin.

Then the minister Luis Roberto BarrosoAlso after Fux’s vote, he affirmed that “the task of trying to make Brazil a country in which crime bears its fruits, bandits persecute the good, and often the bad wins in the end” has not been easy.

“This case confirms my belief that the decision preventing execution after a second-degree conviction was a mistake that the Legislature needs to remedy. We only judge this case because a defendant convicted in two cases 25 years ago is still, by decision of the STF, considered innocent. Otherwise, the case would be closed as it should. But there is this culture of procrastination and impunity that will not allow the process to end. So this man, the subject of our discussion, is still presumed innocent, absurd as it may seem, “he said.

For Barroso, the constitutional interpretation of article 316 does not authorize the granting of freedom to André do Rap.

“The fact that the judge does not re-evaluate the preventive detention does not result in the automatic release of the prisoner, because that could mean putting the most dangerous criminals on the street,” he said. According to the minister, the judge must be provoked to reevaluate, but in this case, as there is a sentence, even that. “Article 316 applies to cases where there is no conviction,” he said.

To the minister Rosa Weber He accompanied the rapporteur for the maintenance of the trafficker’s prison, but stressed that the president of the Supreme Court cannot revoke the decision of a colleague in criminal matters.

According to the minister, Fux did not innovate by suspending Marco Aurélio’s precautionary measure, but this decision “lacks legal and regime support.”

Even so, in the case of André do Rap, Rosa Weber decided to vote in favor of upholding the Fux decision.

The minister Toffoli days he also accompanied the rapporteur, forming a majority for the maintenance of the prison.

Toffoli said he knows the responsibilities of being president of the Supreme Court and argued that the law does not allow the automatic release of prisoners.

“Just as the law cannot arrest, the law does not release, it does not order release. Hence the need for the judge. So, here I understand that, having exceeded the term established in the Criminal Procedure Code, I have already made decisions to determine the judge to talk about it. In other words, there is no automaticity loose, ”said the minister.