The decision of the minister, the (Supreme Federal Court), in the process of the coup plot ignored the legal provision that ensures this right and broke with the advertising logic observed in previous stages of the process.
Specialists heard by Sheet They see the measure as possibly inadequate or even illegal and unconstitutional. While part of them speaks of breaking the principle of publicity and possible damage to defenses, another portion interprets that the minister’s decision may be justifiable, although very generic and without sufficient argument to pursue it.
On Tuesday (24), the Court made in the process of the attempt to blow two trading-in which the parties involved are face to face for the confrontation of versions, due to divergent information provided by them.
In the first, the whistleblower and lieutenant colonel faced the general for about an hour and a half. They talked about possible transfer of money to kill authorities, information given by Cid, but.
The second caress was between the defendant and Marco Antônio Freire Gomes, former army chief who is a witness in the process.
The impossibility of recording was the target of the defense of Braga Netto. José Luis Oliveira Lima, the general’s lawyer, requested the audiovisual registration of the hearing, but the request was denied by Moraes. The magistrate authorized only one transcription via the Fit of the Foreração.
The negative would be due to the need to “avoid improper pressures, even through past leaks of what would or would not be asked to the defendants, who could compromise the criminal procedural instruction”, according to an excerpt from the minutes of the hearing.
Braga Netto’s lawyer, however, saw in violation of the defenses. He said he would open representation with the (Brazilian Bar Association) questioning the act.
For Ricardo Martins, criminal lawyer and professor of criminal procedural law at the Zumbi dos Palmares College, “the minister’s decision was arbitrary, authoritarian, illegal and unconstitutional.”
He states that the measure violates the prerogatives of the lawyers provided for in the OAB Statute, which could undermine the possibility of defenses to denounce any abuse of authority.
In addition, he says that Moraes’ argument that recordings can generate improper pressures to the parties are not plausible. According to the teacher, the rule of criminal proceedings is the publicity of acts, in line with what the Constitution is based on articles 5 and 93. Both speak of the restriction of advertising only in specific cases, such as defense of intimacy or social interest.
Martins also cites Article 367 of the Code of Civil Procedure, which addresses the possibility of recording in image and audio of hearings. According to the text, recordings can be made “directly by either party, regardless of judicial authorization”.
According to criminal lawyer Mário de Oliveira Filho, the rule provided for in civil proceedings is applied to criminal law by analogy. “There [decisão de Moraes] A right guaranteed to any citizen involved in the process was injured. If you misuse this recording, even being confidential, you will answer. What can not be prohibited from recording because the law allows. Everything that is forbidden has to be expressed by law. What is not forbidden is allowed, “says the criminalist.
For him, Moraes’s measure had the “same level of violence” as the STF’s decision on the Judgment 2 of the coup plot in April. “What are improper pressures? The press publish, the press speak? This has no foundation.”
Professor Flávia Rahal of FGV Law SP says the minister’s measure surprised, as recordings were allowed in previous procedural acts. “It drew more attention to the change of rite,” she says.
Rahal also states that the interrogation is the extent of the act of interrogation and that its qualification as an act of the instruction of the court, as the magistrate did, is no argument to rule out the possibility of recording.
For Maira Scavuzzi, lawyer and professor of constitutional law at PUC-SP, the change in the form of registration generates strangeness.
“There is a certain incongruity between the way the testimonials and testimonies were built and the way they were made,” she says.
Scavuzzi states that the Code of Criminal Procedure gives preference to audiovisual recordings because they can be more reliable, but that the minister has brought a justification that may be plausible, although vague.
Therefore, she says that the magistrate’s decision has, in her words, smell of irregularity, but says she lacks elements to classify the measure as illegal.
According to the lawyer, the ideal would be to avoid what he calls controversies in conducting a sensitive process that involves a serious theme of attack on democracy. “If there really was a very strong reason for not being the recording, it would be necessary to explain it in a close way,” he says.
