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The discomfort of the STF (Supreme Federal Court) ministers with the power to revoke the decisions of colleagues marked the trial on the arrest warrant against André de Oliveira Macedo, André do Rap, convicted of drug trafficking and designated as one of the bosses. of the PCC (First Command of the Capital).
“The individual ministers preferred to cede a little power to the president, although trying to restrict it as much as possible, in favor of an image of the Court. In this more specific case, the defendant generated much repercussion for the position he occupies and the crimes that are committed. He compromised, “explains Juliana Cesário, professor of law at the Federal University of Minas Gerais. According to her, the ministers had to overcome this malaise in favor of exceptionality.
The court confirmed the decision of the president of the STF, Luiz Fux, who reversed the decision of Minister Marco Aurélio Mello for the release of André do Rap and ordered the convicted drug trafficker to return to prison in the second instance. André, however, is on the run. Marco Aurélio was the only one who voted for the release.
Although they voted with the president, the ministers expressed reservations about the attitude of reversing decisions. Rosa Weber, Ricardo Lewandowski and Gilmar Mendes argued that this should be an exceptional situation. Marco Aurélio accused the president of going against the law. In response, Fux launched a thesis guaranteeing the exceptionality of the case.
Obviously, this, in the opinion of all ministers, must be of an extremely exceptional character. Even after the trial, Minister Fux calls for a formal solution to this. This extreme case brought this problem, which is an issue that afflicts the Court. it causes discomfort, ”says criminal lawyer André Damiani.
However, for the professor of Criminal Procedure Law at USP, Gustavo Badaró, the action sets precedents for the president to revoke other decisions, although it guaranteed exceptionality, since the interpretation of the exceptional or not is subjective for the President of the Cut. .
“He will continue to have that power. If he wants, he will grant [suspensão da liminar] and in case he does not want it, he will not grant it. I think this is very dangerous. I think this is not in the nature of habeas corpus ”, he explains.
Outcome of the trial
Most of the lawyers and jurists heard in the report agree that the Court did well to maintain the imprisonment of André do Rap, considered one of the largest international traffickers in the country. He is on the run and did not turn himself in to authorities after Fux revoked the release order.
The ministers Luiz Fux voted in favor of the prison, who said that André do Rap mocked the Justice, Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Rosa Weber, Dias Toffoli, Carmen Lúcia, Ricardo Lewandowski and Gilmar Mendes.
For the constitutional lawyer Vera Chemim, today’s decision of the Supreme Court makes the interpretation of the law more efficient by not making the release of a remand prisoner automatic. This new interpretation is the one that will give greater effectiveness, efficiency and efficiency to this device of the Criminal Procedure, that is, after the ninety days, if the judge did not review the situation of the accused, it does not mean that the accused must necessarily be released. as the Minister Marco Aurélio proceeded “.
Juliana Cesário explains that today’s decision was specific to the case of André do Rap, a trafficker at risk of flight, and should not lead to other preventive detention decisions. “Some ministers, mainly Gilmar Mendes and Ricardo Lewandowski, pointed out that the law is not wrong in establishing this periodic review of preventive detention.”
Marco Aurélio vote
Disagreeing with President Luiz Fux, Minister Marco Aurélio criticized his colleague. For lawyers, there is a tendency for the minister to make literal interpretations of the law, and that would be the root of the disagreement.
“He is a very conscientious and very serious minister,” says lawyer André Damiani. “He does not mind having divergent opinions and has a much more confident reading of Article 316.”
Juliana Cesário, for her part, sees a tendency for the minister to disagree with his colleagues, instead of coldly interpreting the law. “I believe that the characteristic of Minister Marco Aurélio that stands out the most and was present in this case is also the fact that he likes to confront, to be against.
“The almighty and authoritarian president, authoritarian because he annulled the decision of a colleague,” said Marco Aurélio in his vote, who claimed to have given a clear conscience, although isolated. He also criticized what he called an attitude to “legislate” the Court.
Gustavo Badaró, a professor at USP, agrees with this opinion and believes that the minister was correct in his vote. “What seemed most serious about the decision is again the Supreme Legislator. The Supreme Court has already done it and now again. The sole paragraph of Article 316 does not make reservations. It says: the judge who issued the measure will have to review it. 90 days, under penalty of illegal imprisonment, and the Constitution says that any illegal imprisonment will be relaxed immediately. “
For him, it is not the initial decision of Minister Marco Aurélio to release André do Rap that should be questioned, but rather the reason why the Public Ministry and the judge in the case did not re-evaluate the sentence.
“Why didn’t Fux direct his outrage to the Public Ministry? Because, if he had all those reasons, it was obvious that he had to be arrested. But who should have acted? The Public Ministry should have spoken with the judge.” reasons why he had to be arrested. “
