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On Monday (12/21), Minister Alexandre de Moraes asked the president of the court, Luiz Fux, information on his precautionary measure that, in January 2020, prevented the implementation of guarantees by the judge and suspended the mandatory custody hearings around the clock.
Carlos Moura / SCO / STF
Alexandre is the rapporteur for Habeas Corpus filed in the Federal Supreme Court by the Institute of Criminal Guarantees (IGP) requesting the suspension of the Fux decision.
Later, the Office of the Attorney General, for an opinion.
The central discussion is a precautionary measure by Minister Luiz Fux, who, almost a year ago, suspended the validity of parts of the Law Against Crime (Law 13.964 / 2019). With the decision, Fux prevented the implementation of the guarantee judge and suspended the obligation of custody hearings within 24 hours.
The HC, with a request for a precautionary measure, was filed by the Institute of Criminal Guarantees (IGP) to suspend this precautionary measure. As reported by the spellsBoth the HC immediately before the IGP and the one immediately after, both presented on the same day, were distributed normally. The last of the three to be presented has already been denied by the rapporteur, Minister Rosa Weber, but the IGP remained impassive until this second.
The lawyers affirm that the approval of the provisions sought to “make the Brazilian criminal process compatible with the constitutional system of the prosecution system.”
Worried from the start
The implantation of the guarantee judge had been suspended for the first time in January, during the judicial recess, by the then president of the court, Minister Dias Toffoli, but only for six months, so that the courts could organize.
A week later, when he took office and acting as president, Luiz Fux made a new decision. In September this year, on the eve of assuming the presidency of the court, Fux released the three direct actions of unconstitutionality on the issue for the plenary trial. Later, as president, he stopped talking about it.
According to CNNFux’s intention was to target ADIs for the first half of 2021, but as he was irritated by the IGP’s HC request, he changed his mind. ADIs are not included in the calendar published by the Supreme Court.
The IGP application cites Minister Luiz Fux as the coordinating authority, which means that it cannot analyze the demand. Normally, during the recess, which began this Sunday (12/20) and will last until January 6, it would be up to the president (in rotation with the vice president) to analyze urgent requests.
But this year, in an unprecedented scenario, four ministers announced that they intend to continue working: Gilmar Mendes, Marco Aurélio, Alexandre de Moraes and Ricardo Lewandowski, considered part of the guarantor wing.
HC vs. STF act
When finally deciding the request for the IGP, the Supreme Court must discuss the knowledge of Habeas Corpus against the act of a court minister, an issue that for years has been a source of disagreement in the courts. The peaceful jurisprudence in court is that HC cannot act against the minister’s act, and the Plenary did not have the opportunity to deepen the discussion in person. Still, some ministers have already signaled the intention for this to be overcome.
In the HC collective this Wednesday, the lawyers defend that the instrument must “serve to protect the rights of liberty, whatever happens, data came, the way in which the State or the person threatens or violates the freedom of movement of the person (s) “.
“You cannot create a ‘tops’, that is, a common place in which there is an argumentative scheme ready and that can be reproduced in any situation: jurisprudence can undergo modifications due to the complex reality of the facts and the law”, points out the criminalist Antônio Carlos de Almeida Castro, Kakay, who worked with the IGP.
For him, Alexandre’s request is already an encouragement. “Minister Alexandre, with greatness, determined the follow-up of the HC. This is an important step. We are sure that the Plenary will accept the merit theses,” he said.
The court even had turning points, as a report from the spells. In August 2015, he claimed that HC is a “noble action without any limitation in the Federal Constitution” in a lawsuit that ended in a tie of five to five. Consequently, it benefited the defendant. The case concerned the winning allegation of the money changer Alberto Youssef.
Less than six months later, from six to five, he returned to his previous position on the issue, and again refused to admit HC against the monocratic decision of the court minister.
In 2018, the STF once again had the opportunity to speak in plenary on the issue, in a case that dealt with the house arrest of politician Paulo Maluf. However, the analysis was hampered when Fachin preferred to give HC the position to maintain the home for humanitarian reasons.
On the occasion, Toffoli and Minister Gilmar Mendes were in favor of the suitability of HC in the face of the acts of the court ministers. Gilmar Mendes stated, at the time, that the court needed to discuss this matter soon. He said that he has always been in favor of the appropriateness of the HC in these cases, mainly because of what he described as “exorbitant and excessive use” of monocratic powers.
In May of this year, with a virtual plenary session, the ministers admitted a Habeas Corpus against the monocratic decision of Minister Cármen Lúcia. The habeas corpus request was denied, but the lawyers praised the position.
Since then, the court has reaffirmed the jurisprudence. Also in a virtual Plenary, the ministers denied a set of requested HCs whose co-author authority was Minister Alexandre de Moraes, rapporteur of the so-called fake news investigation.
For specialists, the comings and goings affect legal certainty and set a bad example for the magistrates at lower levels. Recently, the OAB decided that it will present to Congress a legislative amendment proposal to guarantee the adequacy of the HC against a coercive act of a court minister or its factional organs.
Click here to read the initial
HC 195,807
IDA 6,298, 6,299 and 6,300
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