The minister, of the (Supreme Federal Court), adopted as a procedure for the subpoena only of the witnesses of prosecution, obliging the defenses to take the deponents to the hearings in court.
The practice has caused fear among the lawyers of the accused by (Attorney General’s Office) after the election of (PT) in 2022.
On Friday (11), the criminal action of the central nucleus of the coup plot, after the publication of the result (judgment) of the session of the first class that accepted the complaint of PGR. Defendants in this action are the former president (PL) and seven other people. The act begins the progress of criminal proceedings, a phase that includes the hearing of defense and accusation witnesses.
Five lawyers said to Sheet That the lack of subpoena of witnesses may make statements considered crucial to the accused unfeasible.
Moraes’s strategy can still thwart the plans of some accused of discharging the process, with the inclusion of witnesses unrelated to the coup plot.
Three STF ministers heard under reserve stated that the procedure adopted by Moraes, even though it is not the most conventional, is an antidote valid against the defenses trying to drag the process for long periods.
The (Public Defender’s Office) questioned the lack of subpoena of witnesses in the process of a defendant for the attacks of 8 January and requested the change of procedure.
“There is, in fact, an unequal treatment between prosecution and defense, since the requirement to present witnesses has been weighing on defenses in general, even when they indicate public servants to be asked,” defender Gustavo Zortéa da Silva told the Supreme.
The minister denied the request: “The listed witnesses must be submitted by the defense at a hearing, regardless of subpoena.”
The procedure is described by Moraes in the decisions of opening the criminal actions of 8 January. He defines that witnesses must be taken by the defense on the day of the defendant’s testimony, even without subpoena, and should speak before the accused.
“It is rejected, in the early age, the inquiry of merely allowing witnesses, whose testimonials should be replaced by written statements, by the date of the instructional hearing,” adds the minister.
The case was debated at the STF plenary in the last year. The ministers denied a request for nullity of the case for lack of subpoena of the defense witnesses based on precedents of the Supreme itself.
“One cannot consider nullity due to the determination that the party presented the witnesses who listed and the written availability of the testimonials of allowance witnesses,” agreed the ministers, according to the judgment.
In a statement, the Supreme Court stated that “there is legal provision for the party to summon the witness without the need for judicial subpoena (article 455 of the Code of Civil Procedure that applies in the alternative to the Criminal Procedure Code)”.
The first class of the Supreme Court also said the court, “it has unanimously stated that this possibility in criminal proceedings (regimental appeal in criminal action 2437) is valid.”
Responsible for nearly 1,600 criminal actions in the Supreme, Alexandre de Moraes authorized the subpoena of witnesses in a lawsuit with no relationship with the attacks of 8 January.
Moraes is the rapporteur of the criminal action against Federal Deputy João Carlos Bacelar (PL-BA), defendant on charges of embezzlement. The minister said in the process that the defense of the parliamentarian should justify the request for subpoena of witnesses to have the right guaranteed.
Bacelar’s defense presented a list of seven witnesses to subpoena. Moraes authorized: “I determine [que] Urgently be summoned the witnesses nominated below, so that they will attend the hearing for video conferencing on the previously designated day and time. “
The defense of the majority of the accused filed a list of witnesses in the prior defense to the process. The list reveals the strategy of the lawyers of some of the accused of tumulturing the criminal action.
The defender of the former presidential advisor, he listed 29 witnesses and included Alexandre de Moraes himself and his former assistant in the TSE (Superior Electoral Court).
Jeffrey Chiquini, lawyer by Lieutenant Colonel Rodrigo de Azevedo, included President Lula (PT) and STF Minister Flávio Dino on the list of witnesses. Marcelo Camara’s defense listed the Federal Police delegates responsible for the investigation.
The PGR listed six witnesses to all the accused. They are: Marco Antônio (former army chief), (former Air Force Chief), (owner of a company that assisted PL report against ballot boxes), (governor of the Federal District), (former member of the Ministry of Justice) and (former member of the PRF intelligence).
The Code of Criminal Procedure establishes in its article 401 that, in the instruction of the proceedings, up to eight witnesses of the prosecution and eight of the defense may be surveyed. This number, however, may be expanded by the judge’s decision, considering the complexity of the case and the number of defendants and imputed crimes.
