The role of minister Alexandre de Moraes, of the Federal Supreme Court (STF), as rapporteur of the inquiry into an alleged coup d’état plan that would involve his own murder, is the culmination of the tendency to confuse institutional roles and affront the accusatory system that is consolidated since 2019 in the Court.
That year, when opening the fake news inquiry, the Supreme Court made a creative interpretation of its internal regulations that allowed it to take on the role of investigating internet content critical of ministers.
Article 43 of the rules provides that investigations can be conducted by the STF itself in cases of attacks on the court’s physical premises; With the launch of the inquiry, any type of digital content perceived by ministers as fake news or a threat to their work could now fall under this article.
In 2020, when the then Attorney General of the Republic, Augusto Aras, requested the suspension of the investigation, the Supreme Court itself judged whether or not it could maintain control over the investigations. The court ruled in its own favor.
In the following years, other investigations were launched with the STF appearing as victim, accuser and judge at the same time, such as the one regarding undemocratic acts, in which ministers began to treat criticism of the court as threats to democracy.
In 2023, the litigation at Rome airport added a new element to the growing confusion of papers in the STF, with a case of alleged physical aggression and offense against Alexandre de Moraes being treated as an attack on the Democratic Rule of Law. Ministers, individually, came to personify democracy.
In the case of Rome airport, the rapporteur is Minister Dias Toffoli. In the recent investigation into the alleged coup attempt, the STF takes a further step in the tendency towards role conflict: it gives the alleged target of a murder plan the report of a trial in which he is the victim.
As case rapporteur, Moraes is directly responsible for authorizing measures such as arrests and searches, such as those that occurred in Operation Contragolpe. Furthermore, when writing the reports, he puts himself in the strange situation of describing, as a magistrate, his situation in the role of victim.
In the decision that authorized Operation Contragolpe, Moraes cited himself 44 times, according to a survey by the Folha de S.Paulo.
Moraes was also responsible, on Thursday (21), for leading the interrogation of former lieutenant colonel Mauro Cid, one of the participants in the plan of which the minister would be targeted.
Jurists and parliamentarians criticize the accumulation of incompatible functions; STF shields Moraes
Since the release of the decision that authorized Operation Countercoup, on Tuesday (19), opposition parliamentarians and jurists have repeated something evident to common sense: no one can be considered a judge exempt from their own tormentors, especially when the trial involves a alleged murder plan. The separation of the roles of victim and judge is a pillar of any legal system that values impartiality.
“If the hypothesis of a suspected crime involves murder, the alleged victim can never appear as a judge in the case”, said jurist Fabrício Rebelo via X.
Common sense should be defeated once again in the STF: Moraes has already started to be shielded again by his colleagues, with Gilmar Mendes classifying as “absurd”, on Thursday (21), the hypothesis of removing Moraes from the case.
“This doesn’t make any sense, because Minister Moraes has always been the rapporteur of this process. And, therefore, he became the victim of these attacks”, stated Gilmar.
Deltan Dallagnol, former federal deputy and master in Law from Harvard Law School, criticized Gilmar’s statement on his account on In a democracy, no one can be a judge of their own case, but in the supreme democracy on its honeymoon with the Lula government, ministers can do anything,” he said.
For jurist André Marsiglia, the entire discussion about the alleged coup attempt becomes secondary to the serious procedural abuse. “If the law is still valid, the effort should first be to explain the victim and judge are the same and the legal competence of the STF. This is wrong, everything resulting from this is wrong”, he said via X.
Gilmar Mendes’ attempt to shield Moraes follows the STF pattern in other cases involving abuses by the minister. In August, for example, when the case of the parallel office that Moraes created at the Superior Electoral Court (TSE) to produce reports against his enemies came to light, the president of the STF, Luís Roberto Barroso, classified the situation as a “fictitious storm”.
