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BRASILIA – Three ministers of the Federal Supreme Court (STF) heard by GLOBO in a reserved manner said they disagreed with the decision of the Dean of the Court, Celso de Mello, who vetoed that President Jair Bolsonaro could testify in writing to the Federal Police ( PF) in the investigation into the accusations by former Justice Minister Sergio Moro that Bolsonaro unduly meddled in the FP.
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A minister considered Celso de Mello’s decision “unnecessary”. Two other members, from different wings of the court, agreed. For them, the episode only served to add fuel to the fire of the friction between the Supreme Court and the Planalto Palace.
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The Office of the Attorney General of the Nation (AGU) has not yet decided whether or not to appeal Celso de Mello’s decision. The Dean granted the Federal Police the prerogative to schedule the date and place of the deposition, which has not yet occurred.
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This group of ministers believes that the majority of the STF agrees with the decision made by Minister Luís Roberto Barroso in 2018, when he granted then-President Michel Temer the right to give written testimony in the open investigation based on the complaint from executives by JBS.
The Criminal Procedure Code provides for the possibility of giving written testimony to the heads of the Three Powers of the Republic who are witnesses or victims. Barroso applied the rule to Temer by analogy, while Celso de Mello understood that the fact that he was investigated would take away that prerogative.
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In front of the presidency
For the ministers of the Court, heard in private, the decision is an affront to the institute of the Presidency of the Republic, regardless of who holds the position. This is because it would be disrespectful to subject the officer to questioning by a police chief.
To show that he does not intend to facilitate Bolsonaro, Celso de Mello also authorized Moro to be present at the testimony, and for his lawyers to ask Bolsonaro questions. A supreme minister considered this element as one more ingredient to fuel the disagreements between the Plateau and the court.
The ministers who do not agree with Celso de Mello’s decision are from different branches of the STF, among them guarantors, who prioritize the rights of the accused, and “punitive”, who have a more rigid vision of Criminal Law.
In the decision, Celso de Mello contradicted the opinion of the Attorney General, Augusto Aras, who recommended the deposition in writing.
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“The President of the Republic, having the condition to be investigated, does not have any of the prerogatives (proper and exclusive of those who only appear as witnesses or victims) referred to in art. 221, “caput” and § 1, of the CPP, which means that the investigation of the Head of State, in the case under examination, must follow the normal interrogation procedure ”, wrote Celso de Mello.
The dean is scheduled to retire in November, when he will turn 75. As the rapporteur for Bolsonaro’s investigation, he has indicated that he will conduct the investigations with a firm hand until the last moments he is in the Supreme Court.
Postponement
As columnist Bela Megale has already revealed, a strategy suggested by Bolsonaro’s allies is to postpone testimony, especially so that the date of Celso de Mello’s retirement arrives. The appeal on the format of the deposition could be made within this attempt. If the AGU appeals to the plenary, it would be up to the new president of the Court, Luiz Fux, to set the date for the issue to be analyzed.
After Celso’s retirement, the investigation may pass to his successor in court, who will be appointed by Bolsonaro. But there can also be redistribution by lottery, if required by one of the parties, such as Moro. The case can also change hands if the new minister is deemed a suspect.
