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BRASÍLIA – The president of the Federal Supreme Court (STF), Luiz Fux, reversed, just eight hours later, a decision by Minister Marco Aurélio and ordered the arrest of drug trafficker André do Rap, one of the leaders of the largest criminal faction in São Paulo . André do Rap was incarcerated at the Presidente Venceslau penitentiary in São Paulo and was released from prison on Saturday, the same day as Marco Aurélio’s decision. Now, according to the São Paulo Civil Police, the drug trafficker is on the run. Understand the case:
Why did Marco Aurélio determine the release of André do Rap?
The minister relied on an article in the anti-crime package, sanctioned late last year, on the provision that pretrial detention must be justified every 90 days. The justification is the exceptional nature of the prison, since the prisoner still has resources.
“Preventive detention has been decreed, the body that dictates the decision must review the need for its maintenance every 90 (ninety) days, by means of an official reasoned decision, under penalty of making detention illegal,” says the Criminal Procedure Code after an anti-war package. crime.
What was Fux’s justification for arresting the drug dealer?
For Fux, Minister Marco Aurélio’s decision could cause serious damage to order and security. He pointed out that he is a highly dangerous person, with a double sentence in the second instance for international drug trafficking, who was on the run for more than five years.
Regarding the 90-day period to review the preventive detention, Fux maintains that this point was not discussed by the lower courts. It is as if Marco Aurélio, according to Fux, had “run over” the first and second instance, which is not allowed. Fux maintains that this is a “suppression of instances”.
Minister Marco Aurélio, for his part, refutes Fux’s arguments, noting that, last year, the Supreme Court decided that the arrest should occur only after the final decision (when the appeal period ends), and not second instance.
Who should have asked for the renewal of pretrial detention?
Minister Marco Aurélio said that, according to the new law, it would be up to the São Paulo Civil Police and the São Paulo Public Ministry to have requested the renewal of the traffickers’ prison. GLOBO asked the two bodies why they didn’t do this. The Civil Police said they would not comment on the matter.
Has there ever been a divergent decision on the same article of the Code of Criminal Procedure?
Yes. In another case that was tried this year, to free another drug trafficker, Minister Edson Fachin did not understand that imprisonment for more than 90 days would entitle the prisoner to freedom. In this case, the minister maintained that “the absence of a reassessment, in due time and form, of the preventive detention, does not deprive the individual judge of the power-duty to verify the presence of the pretrial detention requirements.
Who is the drug trafficker freed by Marco Aurélio?
André Oliveira Macedo is accused of leading, in Santos, the largest criminal organization in Sao Paulo. He was serving preventive detention in a Presidente Venceslau prison, in the interior of São Paulo, but had already been sentenced in the first instance to 14 years in prison. The penalty was reduced in the second instance to 10 years in prison.
Can Fux revoke a decision of Marco Aurélio?
As president of the STF, Fux has the power to suspend the judicial mandates (temporary decisions) of the other ministers. Marco Aurélio said, however, that the decision in conflict with his is “regrettable” because it exposes an “autophagy” that leads to the discredit of the Court.
What is the practical effect of the divergence between magistrates?
Luiz Fux recently assumed the presidency of the Supreme Court. In court, he is seen as an ally of Operation Car Wash and used to pass harsher sentences on those convicted. Minister Marco Aurélio, for his part, belongs to the wing of the STF considered more “guarantor”, legal jargon to define who considers that compliance with due legal process is more important than the seriousness of the complaints.
Why are there different interpretations of the same article?
The STF is a collegiate body (made up of several ministers) and there are differences. Furthermore, the application of different interpretations is not prohibited, in analogous cases, precisely because of the alternation of classes or ministers in decisions.
