The minister, of the (Supreme Federal Court), adopted a different guarantee posture different from the punishment profile employed in other actions as a judge, evaluate experts heard by Sheet.
They also interpret that the minister’s vote asking for the nullity of the may, in the future, rekindle the legal debate on the competence of the Supreme.
This Wednesday (10), the magistrate gave a hard speech about the performance of the Supreme Court in the case and disagreed with points raised by (Attorney General’s Office).
These points were generally validated by the two ministers who already voted in the action, and. If convicted in this trial, the former president can take more than 40 years in prison and increase ineligibility, which currently runs until 2030.
Fux spoke about the nullity of the action because the trial takes place in the Supreme. The magistrate argued that, as Bolsonaro is no longer president, this should occur at a lower instance.
Fux stated that the Constitution is “very clear” in this regard. He also said that if the trial was still in the Supreme, it should occur before the entire plenary, so as not to silence the voices of other ministers.
For Diego Nunes, professor of law at UFSC (Federal University of Santa Catarina), the issue of competence has already been decided by the Supreme, and a reversal is unlikely.
He says that the minister’s argument would make sense if there was no text of the Supreme Court regiment that pulls the competence to the Court because the criminal action originates from inquiries that would target the Supreme itself.
“The doctrine tends to agree with Fux, but so far it has not echoed in court. The STF has changed this issue of competence many times. Making public spread can lead to a new change in the future. Now it doesn’t seem to prosper,” says Nunes.
Another justification about the competence to be from the Court would be that Bolsonaro was president when the crimes would have started.
Welington Arruda, Master in Law and Justice from IDP (Brazilian Institute of Teaching, Development and Research), says that Fux’s vote represents an important divergence in the STF.
He states that if the majority follows Fux in the perception of competence, the process could be annulled and sent to the first instance.
“If the majority rejects the preliminary, the trial will continue on the merits and may culminate in conviction. Even if there is conviction, the defense may submit appeals [como embargos de declaração] and use Fux’s divergent vote to support future contestations. “
Raquel Scalcon, professor at FGV Law SP, states that the Supreme Court’s understanding of competence should not change at the moment, due to the current composition of the Court. Any modification of understanding in the future, however, is possible.
For UENP Law teachers (State University of Northern Paraná) Juliana Izar Segalla and Marcos César Botelho, Fux’s vote by sustaining the referral of the process to the first instance “does not harmonize with the consolidated jurisprudence of the STF itself or with the constitutional function of the Court as guardian of the Constitution.”
They claim that the presence of a mandate, federal deputy Alexandre Ramagem (PL-RJ), attracts competence to the Court. They also say that the facts in calculation are attacks against the Brazilian State and that “the Supreme Court has already stated, in several judgments, that it is responsible for the Court to act firmly in the defense of the constitutional order”.
They also cite the international context as a “layer of gravity”, in reference to external pressures from the United States. “To submit such issues to a first instance judge – in the institutional safeguards that the Supreme Court will – it would only expand the vulnerability of the process to improper interference, to the detriment of judicial independence,” they point out.
In the trial, Fux voted for Bolsonaro’s total acquittal, including crimes against democracy. He also said he did not understand that it is possible to frame the defendants’ conduct as an armed criminal organization and said there is no evidence in the file that the defendants tried ordered the destruction of January 8.
The magistrate also defended the suspension of all crimes against Alexandre Ramagem and spoke about the importance that the acts of the accused are perfectly framed in the crimes provided for by law.
For Raquel Scalcon, the minister resorted to vote for several scholars who defend a guaranteeing criminal law to support his theses. “I think the theses itself are well articulated. What catches the eye, however, is the fact that the positions defended in this vote do not keep clear consistency with the history of their positions [de Fux] on similar themes over the years. “
She highlights a more punitivist stance of the magistrate at other times, as in position in favor of the second instance in Lava Jato and in favor of releasing the sharing of financial intelligence reports to the Public Prosecution Service.
Diego Nunes agrees with the perception of profile change. As an example, he states that Fux is the minister who least grant habeas corpus in the STF. “That is, it has [normalmente] Little guaranteeing profile. Wednesday’s vote seems out of the curve with its history in court. ‘
Nunes explains that guaranteeism would be a strict posture of respect for rights and guarantees, with restrictive performance. Punitivism would be a more flexible posture on rights and guarantees, with an expansive action of criminal law.
“Minister Fux, at other times, was associated with more rigorous positions, with punishment profile in criminal matters. But in this trial, his vote was marked by a clearly guaranteeing stance: he emphasized the proper jurisdiction of the court and the need to ensure full defense in the face of evidence,” says Welington Arruda.
For Juliana Izar Segalla and Marcos César Botelho, Fux’s behavior caused strangeness “because they were incoherent with his own performance so far in court. He never proved to be ‘guarantee’, on the contrary, his posture has always been different from the demonstrated today,” they say.
