The change of the minister to the Second Panel of the (Supreme Federal Court), authorized this Wednesday (22) by the president of the court, created a scenario of uncertainty regarding the continuation of processes related to the Operation.
The Supreme Court has precedents both in favor and against Fux remaining in the cases. The solution to the conflicts will be Fachin’s first challenge in command of the court, and he intends to resolve the embarrassment in agreement with the heads of the groups, the minister, who commands the First, and the Second.
Ministers of the Supreme Court and technical servants heard by the Sheet highlight that the court’s internal regulations have loopholes that allow Fux to occupy both classes, temporarily, to close the trial of cases already initiated with his participation.
This would be the case of the coup plot. The First Panel sentenced the defendants for the attempted coup d’état and for analyzing the accusations against the other groups.
Fux wants to maintain the right to vote in trials and in the analysis of the appeals of those convicted — like that of the former president (PL). He argues that the participation of ministers in processes in a group of which he was already part.
“I would like to make it clear to Your Excellency that I have several circulations of cases in the First Panel and I would like to make myself available to participate in all the trials, if it is to your liking”, said Fux to Minister Flávio Dino on Tuesday (21).
Regardless of Fachin’s decision on whether Fux will remain in the case, the trial of the coup plot will follow its natural rhythm. The expectation in the court is that the Supreme Court will judge the appeals of Bolsonaro and the main convicts by the end of December — with definitive arrests beginning later this year.
Fux’s transfer also makes it uncertain which name will inherit the Lava Jato cases that are still pending in the Supreme Court.
Fachin was the rapporteur for the main processes of the operation. When he assumed the presidency of the Supreme Court, on September 29, he gave up the cases and passed them on to the minister.
Barroso’s retirement opened a natural path for the new minister appointed by the president (PT) to take over his collection of cases.
However, Lava Jato processes initiated in the Second Panel, with orders or decisions, cannot leave the collegiate body. Thus, Lula’s nominee must migrate to the First Panel without being able to take with him the majority of shares in the operation.
In this case, a new Lava Jato rapporteur must be chosen from among the ministers of the Second Panel. There are precedents in the Supreme Court for two solutions: either Fux can inherit all the processes or the report can be distributed by lottery.
An emblematic case is that of Fachin. To inherit the Lava Jato processes, he migrated to the Second Panel after , in 2017.
The understanding of the Supreme Court presidency at the time was to redistribute the processes. By coincidence, Fachin ended up being drawn. , the processes under the minister’s report resulted in 172 collaboration agreements and R$2.9 billion.
The procedure was different in 2023, when Ricardo Lewandowski retired from the Supreme Court and requested his transfer to the Second Panel.
Rosa Weber’s management concluded that Toffoli should inherit the collection left by Lewandowski at the collegiate, including Lava Jato, such as habeas corpus and petitions, in which Toffoli decided and.
Article 38 of the Supreme Court’s internal regulations states that the rapporteur is replaced in the event of retirement or death by the minister appointed to his vacancy. The excerpt does not clarify, however, what happens in the case of transferring classes, which leaves room for different interpretations about the correct procedure to be adopted.
Fux’s movement can change the relationship of forces in the . He will go to a collegiate body where the two ministers appointed by Bolsonaro, André Mendonça and Kassio Nunes Marques, are currently present. A trio eventually formed by them would defeat Gilmar Mendes and Dias Toffoli, the two remaining members of the group, in trials.
Fux’s arrival in the Second Panel will also impact the composition of forces in trials related to Coaf (Financial Activities Control Council). Today, the panel headed by Gilmar usually makes decisions that restrict the sending of financial intelligence reports to the police without the approval of the Court. Fux, however, has a consolidated position in favor of Coaf.
Currently, the First Panel has, in addition to Fux, ministers Flávio Dino (president), , and .
