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The Federal Supreme Court (STF) postponed on Thursday (29) the conclusion of the trial that should define whether the conducting of intimate searches of visitors at the entrance of prisons does not respect the constitutional principles of human dignity and the preservation of the privacy.
After the votes of four ministers, the analysis was postponed due to a request for a hearing (more time to analyze the case) from Dias Toffoli. The votes of seven other ministers are missing. There is no date for the resumption of the trial.
The trial will also decide whether the evidence obtained through an intimate search is legal or illegal. If they are illegal, they cannot be used in criminal proceedings.
So far, two ministers have followed the vote of the rapporteur of the appeal, Minister Edson Fachin, and one diverged.
The speaker considered “the irritating practice of the intimate magazine in social visits in establishments of compulsory segregation, inadmissible, prohibited in any way the nudity of the visitors and the abominable inspection of their body cavities”.
For Edson fachin, the evidence obtained from the intimate magazine “is illegal, and the absence of electronic and radioscopic equipment is not excusable.”
The ministers Luís Roberto Barroso and Rosa Weber also voted in this regard.
Minister Alexandre de Moraes disagreed, arguing that the magazine must follow specific criteria.
The decision will have general repercussions, that is, the understanding must be applied to similar cases in other instances.
The res judicata is that of a woman acquitted of the drug trafficking charge. She was seen in the prison magazine with 96 grams of marijuana in her private parts, which would be taken to her inmate brother.
The Public Ministry of Rio Grande do Sul appealed alleging that the situation generates “criminal immunity”, providing safe conduct for those who intend to enter drugs into the prison system.
The law that prohibits the intimate search in the prisons of SP has not yet applied
In the resumption of the trial, which began on Wednesday, the first to vote was the minister Alexandre de Moraes.
He did not agree with the rapporteur, establishing conditions for conducting intimate searches. He cited as an example the case of the “invasive” magazine of Senator Chico Rodrigues, which culminated in the apprehension of R $ 33 thousand in underwear of the parliamentarian.
“Intimate magazines should not always be considered annoying, as long as the application is restricted to cases where there is a real need,” he said.
Even so, according to Moraes, the magazine cannot be produced indiscriminately and must be carried out only in the latter case and by a person of the same sex, obligatorily doctors and with the consent of the visitor.
“If she doesn’t agree, she won’t visit,” he said. “Any excess and abuse is prohibited by law. Now, it is necessary to make this differentiation because we are facing the issue of access to the penitentiary ”.
For the minister, the illegality of the evidence obtained from the magazines should not be automatic either, and the magistrate should analyze whether there was abuse.
The minister Luis Roberto Barroso decided to accompany the speaker. For him, the amount of drug seized in the magazines is insignificant and there are “less serious ways of producing the same result, which are scanners.”
Barroso affirmed that 24 states already prohibit the intimate magazine, but they continue practicing it, “widely, as we know.” Therefore, limiting the possibilities of journaling in the country today is inapplicable in real life.
To the minister Rosa Weber the vote of Fachin also followed. “Tolerance cannot be found in a democratic rule of law with the use of such irritating practices,” he said.
Intimate searching is already prohibited by law in several states, but the rule is not always followed. In São Paulo, the law has existed since 2014, considering annoying “any procedure that forces the visitor to undress; do squats or jump; undergo invasive clinical examinations ”.
According to the law, the magazines can be made differently, using scanners, metal detectors, X-rays and other technologies “that preserve the physical, psychological and moral integrity of the wanted visitor.”
At the time of the approval of the law, the State Public Defender released a survey that showed that only one out of every thousand visits resulted in an apprehension. In the STF, only 14 cases with the issue tried throughout the country await a position from the STF on the issue.
In 2016, the first law of national scope was approved that prohibits intimate searches of women in public and private companies. An excerpt related to the magazine in prisons was vetoed by then-president Dilma Rousseff.
