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In this afternoon’s session, the ministers of the STF (Supreme Federal Court) decided to change the court’s regulations so that investigations and prosecutions are again analyzed by the full court and no longer by its trial groups.
With the decision, the Second Panel of the Supreme Court will no longer be responsible for analyzing the Car Wash Operation processes. The Second Panel has imposed repeated defeats to the investigation of the operation.
The measure means that all investigations and criminal proceedings are analyzed by the plenary session of the STF, made up of the 11 ministers, who will discuss from the receipt of the complaint to the decision to convict or acquit the accused.
The measure represents a victory for Lava Jato and also a triumph for the president of the STF, Luix Fux, defender of the operation, in front of the wing of ministers critical of the investigations. Fux took office in the Supreme Presidency about a month ago.
When putting the change in the regiment for analysis of the plenary this afternoon, the president of the court said that he had previously referred the proposal to the offices of his colleagues – Gilmar Mendes, one of Lava Jato’s opponents in court, however, He said it took him by surprise.
How it was and how it will look
In addition to the plenary, the Supreme Court is divided into two trial groups, the First Panel and the Second Panel, each made up of five ministers. The president does not participate in any of them.
In 2014, after judging the monthly allocation process, the ministers decided to change the court statutes so that criminal actions and investigations could be reviewed by the two classes of courts. The intention, at that time, was to publicize the order of business for the sentences of the plenary session, which had dedicated six months to the trial of the monthly allocation.
Now the court will resume criminal trials by the highest court.
The criminal proceedings of the authorities that have privileged jurisdiction in the Supreme Court, such as federal deputies and senators, will be judged by the Plenary.
Criminal actions of another type, such as habeas corpus related to trials that originally proceed in other instances, will continue to be judged by the Supreme Court.
This is the case of the cases in which the defense of former president Luiz Inácio Lula da Silva (PT) accuses former judge Sergio Moro and the Lava Jato prosecutors of having acted without impartiality and calls for the nullity of the PT’s convictions.
Lula’s appeals against Lava Jato will continue to be judged by the Second Panel. The same is true of criminal appeals from trials in lower courts, whose appeals to the Supreme Court will continue to be heard by both kinds of courts.
Second class change
The decision to change the statutes of the court was approved unanimously today by the ministers.
The measure will be implemented at a time when Minister Celso de Mello leaves the court when he retires for reaching the age limit of 75 years.
The departure of the dean, the minister with the longest service, will lose the Second Panel and may change the composition of the collegiate.
In addition to Celso, the referee is made up of Gilmar Mendes, Ricardo Lewandowski, Cármen Lúcia and Edson Fachin, rapporteur of the Lava Jato processes.
Celso had frequently been absent from the sessions for health reasons. With four judges, it was common for trials to end in a draw, which benefits the defendants.
The natural replacement for the minister in the Second Panel would be the nominee to fill his vacancy on the Supreme Court. But the STF letter establishes that the ministers of the 1st Panel could request the change of collegiate.
The First Panel is made up of the ministers Marco Aurélio Mello, Dias Toffoli, Rosa Weber, Luís Roberto Barroso and Alexandre de Moraes.
President Jair Bolsonaro appointed TRF-1 (Federal Regional Court) Judge Kassio Nunes Marques to fill the vacancy in the STF, but he still needs his name to be approved by the Senate. The Senate hearing is scheduled for the 21st.
Harder plenary with researchers
The lawyer Antônio Carlos de Almeida Castro, who works in the Supreme Court as a defender of those investigated in Lava Jato, says that the transfer to the Plenary session tends to reduce the guarantee bias in the trial of the operation’s processes.
Kakay, as the defender is known, points out that the change occurs at a time when the change in the composition of the Second Panel could ensure a majority of ministers with a guarantor profile, a look at the law that assesses the legal guarantees of the investigated.
“Actually, what is most striking is that it is a clear opportunity for Fachin to keep Lava Jato under a punitive bias. While he, the Lava Jato reporter, had the punitive majority in the Class, he did not propose this change. Now that he can lose most, he proposes. The Supreme Court and the Judiciary are lost with this proposal in this way, at this time, ”says Kakay.
In the Second Panel, Minister Cármen Lúcia and Minister Edson Fachin used to cast unfavorable votes to those investigated, while Ministers Gilmar Mendes and Ricardo Lewandowski presented positions considered more favorable.
Minister Celso de Mello used to be the tiebreaker and his positions were always considered difficult to predict because, despite the profile of guarantor, the minister maintained a tough discourse against corruption and often voted alongside Fachin and Cármen Lúcia.
