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MP-RJ
At the suggestion of the president of the STF, Minister Luiz Fux, the criminal actions filed against the accused with prerogative of the forum will be tried again by the Plenary of the Supreme Court. The decision was accepted with reservations, but unanimously, in the administrative session this Wednesday (7/10).
The change is seen by many as a victory for the “lavajatista” and media wing of the Supreme Court. THE spells They consulted experts on the subject and, despite reinforcing the punitive nature of the STF in criminal matters, the change will also standardize understandings.
Guilherme Batochio he is one of the critics of change. “The stability of the rites is a determining factor in the security and legality of the procedures prescribed for criminal proceedings. They cannot and should not fluctuate according to personal convictions or conveniences of the moment ”, he says.
Another critic is the criminalist Aberto Toron. “Valley [a mudança] for all cases that have not yet been tried. The rule of procedure applies immediately. I think that the trials in the Classes were better, since there was the possibility of infringing embargoes to the Plenary. I think it’s a step backwards ”, he argues.
The jurist Streck loosening, in turn, says he believes the change can speed up the processing of cases. “The reform of the Internal Regulations enters into force and affects the processes in progress. Yes it’s good? Haste will be achieved.
Lawyer Christian zanin He said that the change in the rules will only affect acts of criminal prosecution related to people with the prerogative of photo by function. According to him, any change in addition to the ongoing criminal proceedings against persons with prerogative of functions can be questioned.
“Despite the rule set forth in article 2 of the Code of Criminal Procedure, which provides for the immediate impact of the criminal procedural rules (the rules of time act), the change of regime that restores the competence of the Plenary Assembly implies the discussion from the perspective of due legal process in a substantial sense and from the perspective of legal security ”, he explains.
It also argues that the STF collegiate judged ADI 5,175 in June of this year exactly on this issue and reaffirmed the jurisdiction of the Classes to execute these same sentences.
The criminalist Luis Henrique Machado remember that “to change the jurisdiction of a criminal process in progress is to put legal security in the background ”. It considers that the extension of the natural judge of the case, to the Plenary, without any plausible justification, unfortunately sounds like “change of occasion”.
Flow and lottery
The referral of criminal cases to the STF Plenary should create a more uniform jurisprudence. This is one of the possible developments pointed out by the lawyer Luiz Guilherme Vieira. “Now, the most important thing is to know if, with the reform that is sought, the jurisdictional” flow “, which nobody takes advantage of, will find a good end,” he explains.
The defender recalls that the STF was born to be a counter-majority. “The voices of the streets have to be heard by the Legislature and the Executive. This is neither good nor bad. It is stated in the Constitution. To comply,” he defends.
Daniel gerber, criminal lawyer specialized in crisis management and accordance political and business, sees change as a positive movement. “The change will unify the understanding of the relevant issues and eliminate the now famous ‘lottery factor’, which accompanied the distribution of cases,” he argues.
Who also highlights the end of the “lottery factor” in the sentences is Guilherme Amorim Campos da Silva, partner of Rubens Naves Santos Jr. Advogados and professor of the master’s degree in law at Uninove, the reading that the change should be seen as a victory for “lava jato” in the STF is fallacious. “The amendment to the Regulation in 2014 was absolutely random and only brought losses to the functionality of the sentences and to the legal certainty of the STF’s understandings ”, he maintains.
Antônio Carlos de Almeida Castro, The Kakay, has a different reading. “The Supreme Court is mostly punitive, and faces a serious problem: justice by lottery. If it falls in the first class it will be a very harsh, punitive trial and if the case goes to the second group, the trial will be judged with a glance more guarantee “, he explains.
The criminologist also draws attention to the fact that plenary sessions are transmitted by the TV Justice. Something that, in his opinion, favors “the spectacularization of the Law” and a punitive nature on the line. There is a clear possibility that Fachin is keeping the ‘car wash’ under a punitive bias. While he, the ‘car wash’ rapporteur, had the punitive majority in the class, he did not propose this change. The Supreme Court and the Judiciary lose with this proposal like this, at this moment ”, he says.
Finally, the lawyer Bruno salles, partner of Cavalcanti Sion Salles Advogados, recalls that the change, however, does not affect the process of former president Lula, for example. The same will not happen in the processes involving Senator Flávio Bolsonaro. “In this way, Minister Fux draws to himself the power of the agendas that involve the Bolsonaros,” he sums up.
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