Marco Aurélio released about 80 prisoners with the same criteria as in the ‘André do Rap’ case | Politics

The exclusive survey of the G1 it only takes into account the decisions published by the STF, which excludes secret judicial proceedings. The number of people benefited can be even higher, since the same habeas corpus can benefit more than one inmate.

In all these decisions, Marco Aurélio Mello relied on article 316 of the Criminal Procedure Code, which was modified in January from the law on the anti-crime package. The text states that, when pretrial detention (defined as a precaution) is not reviewed every 90 days by the responsible court, it becomes illegal.

André do Rap is one of the chiefs of the First Command of the Capital (PCC), a criminal faction that works inside and outside the prisons of São Paulo, and has been in prison since September 2019.

Convicted in the second instance for international drug trafficking, and sentenced to sentences totaling more than 25 years in prison, he was released on Saturday (12) after the precautionary measure issued by Marco Aurélio Mello.

• André do Rap: see questions and answers about STF decisions

The minister affirmed that there was no reevaluation of the preventive measure, demonstrating the “illegal coercion” of the prison, which, according to the anti-crime package, authorizes the release.

On Saturday night, hours after André do Rap’s release, the president of the STF, Luiz Fux, suspended Marco Aurélio Mello’s decision and ordered a new arrest for the drug trafficker. The Public Ministry and the Federal Police believe, however, that he fled in a private jet to Paraguay or Bolivia.

Among the other habeas corpus granted by Marco Aurélio, are the requests of prisoners and those convicted of various crimes, most of them for drug trafficking and criminal organization.

There’s also accused of first-degree murder, attempted femicide, active corruption, and other lower potential crimes, such as robbery and reception.

The minister follows the understanding of declaring the detention illegal and determining the release of the detainee to the letter, regardless of the seriousness of the crime. Always, based on article 316 of the Criminal Procedure Code, which says:

Art. 316. The judge may, ex officio or at the request of the parties, revoke the preventive detention if in the course of the investigation or the process he finds the lack of reason for it to exist, as well as decree it again, if the reasons concur. that justify it.

Sole paragraph. Preventive detention was decreed, the body that issues the decision must review the need for its maintenance every 90 (ninety) days, by means of a motivated official resolution, under penalty of making detention illegal.

Marco Aurélio Mello also received, in the office, applications for habeas corpus for preventive prisons that had been duly re-analyzed. In At least 68 situations like this, the minister supported the arrest and denied the release of those involved..

The prediction of the periodic review of these arrests was not in the original text of the anti-crime package, organized by the then Minister of Justice Sergio Moro; the passage was added by Congress. Moro, at that time, even requested the veto of this section, stating that judges could not review all preventive measures in the country.

• Moro defends reviewing part of the anti-crime package that led to the release of André do Rap

According to the habeas corpus requests that reach the STF, this has indeed happened. In some of the cases tried by Marco Aurélio Mello, the schedule of periodic reviews was even partially met, but the irregularity in the deadlines led the minister to decide to release.

The ministers do not agree with the decision

When re-evaluating André do Rap’s case at the request of the Attorney General’s Office (PGR), the president of the STF, Luiz Fux, disagreed with Marco Aurélio Mello.

The president of the STF understood that the release compromises public order and security, since he is a patient of proven extreme danger and with a double second-degree sentence for transnational drug trafficking.

In an interview with TV Globo, Minister Marco Aurélio affirmed that he acted as “Supreme and not as a citizen Marco Aurélio” and that he would not change his decision. “It is not up to the interpreter to distinguish and there enhance what is not in the rule in terms of exception, that is, the dangerousness of the agent,” he said.

In Saturday’s decision, Fux did not even analyze in depth the article of the Code of Criminal Procedure.

So far, only two other ministers have explicitly distanced themselves from Marco Aurélio Mello’s understanding in the cases tried: Edson Fachin and Gilmar Mendes. Both denied the release of the prisoners, even in cases where the review was not respected.

Minister Edson Fachin argued that the absence of the reevaluation “does not eliminate the power-duty to determine the presence of the requirements of the preventive detention of the singular judge” and does not automatically revoke the preventive detention of the prisoner.

For the minister, it would make no sense to release the pretrial detainee if the trial judge can still renew custody. So Fachin denied the request and ordered that the prison be searched immediately.

Minister Gilmar Mendes processed a request in which the defense alleged that “the absence of the review automatically leads to the revocation of the prison”, but decided to deny the release.

The minister said that “prisoners have the right to review the need for preventive detention every 90 days and, in their absence, it is up to the Judiciary to determine their prompt satisfaction.”

According to Gilmar Mendes, the Legislature intended to “guarantee the inmate the right to have his prison periodically analyzed, in order to avoid unnecessary prolonged procedural detentions, imposed on all the accused / suspects / accused, but especially those who do not have assistance technique”.