The (Supreme Federal Court) formed a majority this Friday (6) against the former president’s request () to withdraw actions regarding the attempted coup d’état of 2022 and the coup acts of January 8, 2023.
And, despite the deadline of up to a week for the ministers to vote, in just four hours there were already 6 votes in the same direction — another 4 remain to be positioned, and Moraes is prevented from voting in this specific judgment.
The president of the court, , who is the rapporteur of the case, voted to reject Bolsonaro’s request and was followed by ministers , , , and . Ministers Cármen Lúcia, Kassio Nunes Marques, André Mendonça and Luiz Fux will also vote.
The analysis takes place in the court’s virtual plenary session until next Friday (13). In this environment, there is no interaction between ministers, who cast their votes in an electronic system.
Barroso had already denied the request in February this year. The expectation regarding the analysis of the request by the board was that it would be rejected again.
In the new decision, Barroso said that the facts narrated by the former president’s defense do not, in the slightest, characterize the legal situations that would compromise the judge’s bias.
“In the appeal, the requesting party continued without demonstrating in a clear, objective and specific way the existence of a situation of bias on the part of the judge”, he stated.
The president of the court said that the simple allegation that Moraes would be a victim of the crimes under investigation does not automatically prevent the minister from reporting on the case.
He added that the crimes of violent abolition of the democratic rule of law and attempted coup d’état, analyzed in these cases, “have the entire collective as passive subject, and not an individual victim.”
In addition to Bolsonaro’s request, another 191, from defendants in related cases, were denied by the president of the . All requests followed the same line of argument, according to which the judge’s impartiality is compromised because he is also identified as the target of the coup plot.
The internal assessment is to define the progress of the processes under his report.
Although the matter is delicate for all ministers, the rapporteur’s stay is seen as a defense of the court itself.
The former president’s lawyers filed an action called an impeachment argument, used to remove the magistrate who would direct the process, based on the causes of suspicion and impediment.
When presenting the action, Bolsonaro’s defense said there was “a narrative that places the reporting minister in the role of central victim of the alleged actions that were the subject of the investigation.” He further stated that the context “makes his objective and subjective impartiality in deciding in these cases evident and strongly questioned, given his position as a victim“.
A survey by the Supremo em Pauta group, from FGV Direito SP, showed that, of the 111 requests for impeachment and suspicion presented to the court until the end of 2018, practically, with the exception of one that was still in progress. The processes, according to the study, tend to work to remove cases from the analysis of ministers.
Rules are provided for in the Code of Civil Procedure and the Code of Criminal Procedure, applicable to STF ministers.
Impediment occurs in processes in which the magistrate has previously acted, whether as a lawyer, defender or for the Public Prosecutor’s Office, police authority, judicial assistant and expert witness – or as a witness.
The minister also cannot consider actions in which a spouse or relatives are involved or in which they are parties or interested as partners or heirs.
Suspicion arises when the magistrate acts in cases involving close friends or enemies and their lawyers. Suspicion is also expected if he has received gifts from people interested in the process or who have creditors or debtors of his spouse or relatives.
The rule also applies to cases in which the judge has an interest in the trial. In these cases, the magistrate can declare himself a suspect on an intimate basis, without having to give a reason.
Suspicion does not apply when it is provoked: for example, if the defendant offends the magistrate so that he cannot judge him.
