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After a series of decisions this Sunday (8/7), the jurists will comment on the legal and political aspects of the injunction pronounced by Judge Rogério Favreto in favor of the release of Lula and the subsequent demonstrations of Judge Sergio Moro and Reporter of the
Lenio Luiz Streck, Jurist, Professor of Constitutional Law and Postdoctoral Doctorate in Law
"Review of the 4th District Federal District Court, João Pedro Gebran Neto, who detained the Former president imprisoned in Curitiba, which we have until now, we see that there is an order of liberation that must be accomplished.The judicial order is filled in. Neither the police nor Moro can To oppose it, even if the HC's order is ultimately undue or illegal.Other aspect is that Moro is on vacation and can not decide or ship during this period. he received advice from the president of TRF aujo urd "By writing? In cars? On the phone? There are a lot of extra-cars & # 39; right here. Everything was turned into a fall of arms. It's become politics. If there was any doubt that Moro was suspicious or prevented from judging Lula, now it was very clear. The right has been set aside. It's become a fight. Whether or not a decision is made? There is a judge in São Paulo who responds to an administrative procedure for being sent on vacation. In a democracy, a judge gives the order and a judge of the first instance does it. On pain of responding to the trial for disobedience and other penalties. "
Eugenio Pacelli, General Rapporteur of the Draft Commission for the New Code of Criminal Procedure, instituted by the Senate of the Republic
" C & # 39; was a sequence of errors , such as "never seen before in the history of this country", in the honor of the main stakeholders. An HC to file in the TRF should emphasize the existence of a new fact. And more than that, a new fact practiced by the judge of the 1st degree.
Moreover, Judge Moro's statement seems to me to be absolutely wrong, even if some of his arguments are valid, and I do not know the process to say if there were any. does not have jurisdiction to challenge the jurisdiction of the author of the preliminary injunction, which is functional and hierarchically superior to him. It is not he who can point out the mistakes of the judge's decision. Only TRF Collegiate or STJ could do it. 59006] Even more bizarre was the decision of the original reporter, who, in the middle of Sunday, called for the defense of his jurisdiction, which seems to me to disagree with the law. Tomorrow, on the second, he could review the decision when the case will finally be distributed to him as rapporteur.
With an aggravating factor: a judicial decision is made, and it is not up to the first degree authority to challenge the accuracy of that of the second degree, let alone consult d & # 39; Other authorities of the same level, to find out if it was correct the decision. The judiciary has done wrong from above! "
Luiz Magno, Professor and Lawyer
" Favreto would not be a competent judge. The change serves to address urgent issues and could even be used to deal with Lula's case. But, strictly speaking, the HC could not be filed with the court judge Sergio Moro because he is not even the execution judge. There are two arguments that have not yet been appreciated and that could possibly grant HC to Lula, but not to TRF-4, not to Cope Judge Moro. There is a question of personal position of Judge Favreto who understands that the arrest of Lula is illegal, and that there should be a judgment of the case in the STJ. But the tool used is extremely heterodox and has a political element that completely destabilizes the institutional order.
And there are two other manifestations that are also false. Moro is on vacation and can not judge. He did not have to show up. Any authority could have said what he said. He does not exercise this skill when he is on vacation, he does not have competence. The rapporteur, Mr. Gebran, does not work either, he intervenes and advances the case on the grounds that he is the natural judge, trying to clean the house, but also in an exceptional situation. Everything is false. It's even hard to explain. There are irregularities on the irregularities and the bottom is political
The treatment given is irresponsible. And, fundamentally, what is at stake is the political repercussion. All this reinforces the demonstrations around the "free Lula". This is another step, a political fact that defeats this issue that involves Lula's candidacy and if this prison has the character of executing the policy. It has much more political impact than legal. If he ended up leaving, even if he came back two days later, it would have been a general hustle and bustle. It's a terrible situation that puts institutions in check. "
João Paulo Boaventura, Criminal Attorney
" The magistrate considered the collegial decision of the clbad, in person, despite the fact that he was personally aware of it. unlike arrest in the second instance, because the Federal Constitution is very clear, this succession of decisions between judge and judge of first instance – technically on vacation – serves only the leading role of public officials, ignores the science of law, generates legal uncertainty and aggravates the discredit of the judiciary. It is an urgent measure that the Federal Supreme Court rules the merits of ADCs 43 and 44, already released for judgment by Minister Marco Aurelio. "
Daniel Bialski, lawyer
" The decision of the TRF of the 4th Region is unprecedented, there is no new fact to motivate the reception of the request. first year who could be reformed in 2nd degree. More than that, the conviction was supported by a clbad of this court itself. And the requests for suspension of the provisional execution were examined and rejected in the STJ and the STF. Dr. Moro has brilliantly brought this exhibition and his decision is irremediable. In addition, one can not give freedom because a person "in thesis" can be a candidate. Similarly, the TSE and the STF had to immediately declare the absolute impossibility of the former president to be a candidate. "
Larissa Pinho de Alencar Lima, Vice President of the National Forum of Criminal Judges (Fonajuc)
" The decision of Judge Sergio Moro has been accepted and is irretrievable. No judge must comply with a manifestly unlawful order, as in the present case, since Sergio Moro himself understood that the preacher of the decision was incompetent for such deliberation. Article 1, paragraph 1, of Resolution 71/2009 of the CNJ specifies that the judicial order is not intended to reiterate a request already examined in the judicial body of the Court. origin or in previous employment, as in this case. "
José Roberto Batochio, criminal lawyer
" We could answer with the cliché old and always recalled: "Decisions must be met" .
Alberto Zacharias Toron, Criminal Attorney
I have not read the decision of Judge Rogério Favreto, but I know that it is a serious and appropriate person. On the other hand, it is unacceptable that a first level judge does not comply with the decision of a higher court. Worse, as far as we know, when this judge is on vacation. This is a total reversal of values.
Miguel Pereira Neto, lawyer
"The politicization of the judicial process is very expensive for the rule of law and democracy.The criminal law of the author, by his name on the cover , sacrificed the rights of the accused and all other thousands of defendants by extension Conflicting decisions, from one side to the other, destabilize, disrespect and forbid. Ordinance and reflect in other cases, by multiplying the unconstitutionality.Basically, for the sake of clarity of the constitutional text, there would be no such instability (vacation judge in the absence of a judicial decision, judge appealing) and dismissal of the decision Sunday, service clerk retaining his own decision and determination of release), nor need for measures and more measures, with an obvious lack of weapons parity, since the greater d & # 39; 39, among them, the Constituti When the STF fulfills its role and judges CDAs on the presumption of innocence, the situation will be resolved. Meanwhile, in the midst of chaos, we will see the technically elevated, procedurally motivated legal battles, a legitimate, laudable and indefatigable defense of the right of defense, in the face of continuing violations of fundamental guarantees. "
Celso Vilardi, Criminologist and Professor
" A dark day, sad for the judiciary, is a succession of errors. "The judge obviously had no jurisdiction to rule in this way Because the case is before the Federal Supreme Court, the decision should be completed and a judge of first instance could not fail to do so.The delegate should also comply with the decision, obeying the judge, who is the judge. maximum authority in the matter.The correct measure would be a complaint to the Supreme on the part of the deputy, if he understands that the decision of the judge is wrong, so that the President Carmen Lúcia could decide whether or not to decide the Gebran then resumes his work in an exceptional way, and now another decision by Favreto that wants to face the decision.
Nothing will happen because Lula will remain in prison. But there is a feeling of "no". weakening of the judiciary, a feeling of legal uncertainty for the population. Right from the judiciary, which should give that sense of security. It is a succession of errors that could be avoided with a decision by Carmen Lúcia, who has the competence to do so. All remaining decisions are exceptional or irregular. As a dispute begins among the judges of the same court, it has become this mess. "
Conrado Gontijo, lawyer and professor of the IDP-SP
" In the custody regime, the person in charge of decisions of an urgent nature is the callonist, by the provision of the Internal Rules of the Courts. Therefore, once Justice Favreto understood that the former President Lula is illegally coerced and should be released, I believe that the first degree judge could only comply with the order of the Court, although it could be reviewed later by the case reporter, who is Dr. Gebran. That is, today, Sunday, who decides habeas corpus with injunction in the TRF4 is the judge Favreto.
Antonio Carlos de Almeida Castro, Kakay, Criminal Attorney
"I am the lawyer of Raul Schmidt, a Brazilian who is today born Portuguese and who has a request for extradition against He and I won, a while ago, an injunction at the Regional Court of the 1st Region, in Brasilia, with Judge Leão, Judge Sérgio Moro hastily violated the injunction. gave the order to say, as is the case today, that the judgment was not competent. "The President of the Third Clbad, the Minister Judge Ney Bello, made a very hard note against him.This unfortunately becomes a rule in the attitude of this judge.
Unfortunately, the TRF-4 does not seem to have the necessary independence, as did the Judge Ney Bello.This is a typical case of violation of a judicial decision, which is very serious.Something that causes justice to lose its credibility, the s Legal rity and s & # 39; acts d & # 39; establish liability. He is clearly confronted with a court decision, and does not have jurisdiction to do so and must be held responsible for this non-compliance. It's very serious. It's really a citizen who thinks the Judiciary is personal, it's his. This is an affront to the independence of the judiciary. "
Vladimir Pbados, retired federal magistrate of the TRF-4
" In 52 years of medico-legal practice, I have never seen a judge dismissed by a clbad of the same court. "
Leonardo Isaac Yarochewsky, Criminal Lawyer and Professor of Criminal Law
In 30 years of criminal advocacy, the situation for me has never been seen before.I have never seen a judge Refused to comply with and challenge a decision of a judge Service judgments occur regularly throughout the country Which criminal lawyer does not know of a case in which his client was released by a decision d & # 39; A panelist The President of the Federal Supreme Court, Minister Carmen Lúcia, has given a note now, saying the proceedings should be followed, and the procedure is not what we see: Judge on leave to want to cancel a decision legitimately made by a judge.It is necessary to follow the rite.Decided to restrict, to await the judgment of the merits of Habea s Corpus
There is so much legal certainty, but c & rsquo; Is what causes insecurity j The monocratic decisions exist and must be respected and treated legally. Even the STF ministers have already made monocratic decisions, and Rogério Favredo himself quotes Minister Marco Aurelio's decision in this regard. The 2nd clbad has not decided for the release of the former minister José Dirceu recently? Decisions must be completed. If there is appeal, the due process must be followed. For that we have a Constitution of the Republic. Unfortunately, this shows that the former President Luis Inacio Lula da Silva is treated as an enemy by a state of exception. "
Luís Henrique Machado, criminal lawyer
" Good or bad, the decision pronounced by being canceled by a judge of first degree on vacation. Inapplicable too, the debtor reporter who was on vacation ignored the decision of a clbadmate who was on duty. "
Marcelo Ribeiro, lawyer and former minister of the Supreme Electoral Tribunal
" As the eminent minister of the Supreme Court, we are living times of foreigners. At first, a certain perplexity: what would be the urgency to allow a judge to act on weekends, in a case like this? Perplexity, however, continued to increase. The first degree judge does not comply with the decision. He pleads with the President of the Court and consults the appellant. Appeal already tried, including with embargoes already rejected statements and calls to the STJ and Supremo already manifested. Was the rapporteur of the appeal at the time competent to examine the matter? Conflicting decisions have succeeded. Who loses all this? "
Pedro Machado de Almeida Castro, Criminal Attorney
Whether Judge Rogério Favreto's decision is correct or not, there are legal means capable of revising and possibly modifying it.
Marco Aurélio de Carvalho, lawyer
"It's a decision that leaves the legal community absolutely disconcerted. Predictability, legal certainty, violate the Constitution. It is a very serious decision and the Supreme must express himself with absolute urgency. "We all know that on Sunday there is no record in the judicial system, so the only magistrate who can decide urgent cases is the one badigned to the function."
Fernando Hideo Lacerda, Lawyer
The decision of the President of the TRF-4 that revoked the order of the custody judge (the only one who could decide the injunction) is teratological. After Judge Sergio Moro interrupted his vacation and Judge Gebran Neto interrupted his Sunday holiday, the President of the Court intervened in the middle of Sunday night to keep the accused in prison. I do not think we can even call it a "criminal prosecution". But what to expect from the presidency of a court that admitted the exception state to recognize that sinks do not need to follow common rules? "
Juliana Malafaia, lawyer
" That the judiciary has become a producer of insecurity we already knew. But, as today, it is unprecedented. Left in service, you stay stuck on vacation, the report drawer interferes … All this in less than 3 hours! And at 8:00 pm, we still do not know how the day will end. We still do not know who will scream louder and "win" the fight. The judge of the floor? The rapporteur? L & # 39; s calling? Or will the higher instances manifest themselves? I think it's easy to remember: the judges apply the law, the judges do not do it justice. It is not up to the judge to decide with his sense of justice, but to enforce the law. "
Karina Kufa, electoral lawyer and educational coordinator of the electoral district of the faculty of IDPSP
" The decision of the judge of the guard was extremely hasty, especially for not having competence to badyze a issue already decided by the bureau of the TRF-4 to which it belongs, according to the resolution of this court. The fact that former President Lula seeks to be a candidate is not new and this has already been addressed before trial in the first instance. In addition, I do not see sufficient fact to change the decision in this way, the non-compliance should be reserved to the same means.
Despite a possible leverage on the popularity of the candidacy of former President Lula with a possible release from prison, nothing changes with regard to the ineligibility to discuss in the TSE, since the decision n & # 39; 39 – did not deal – and much less than she did – with repealing the decision, but only with imprisonment. "
Michel Saliba, Attorney
" The judge who was the perpetrator of the release decision contemplated elements that allowed the granting of liberty. The service decision is valid and part of the court system. If, subsequently, the reporter decides to reconsider the appellant's decision, he may do so, however, when the call is worth it to sign by the secretary on appeal. After the change, there should be a contrary decision by the rapporteur or the clbad concerned. The decision for freedom, without a doubt, should have been completed immediately. But with the decision of the president, the thing changes, the "conflict" of competence between the rapporteur and the parish does not have any specific discipline, so that the president of the court theoretically found a violation of the law. interpretation to badert the authority and his will, which has already been publicly exposed against the former president Lula, so that the decision of the freedom is revoked. "
Octavio Orzari, lawyer
" The Constitution is clear in saying that to be found guilty after the final decision and without appeal. This principle has been relaxed, based on a purported need for effective sanctions and the speed of the process, in order to order ineligibility and, more recently, arrest, after a decision of the college court. It turns out that, on one side or the other, some trials are taking place faster than others, depending on the performance of the procedural actors, including the judiciary, leading to considerable legal uncertainty on politics and the freedom of the citizen. The problem is that the flexibilization of a constitutional principle has given rise to the politicization of judicial decisions and exacerbated judicial intervention in politics, which weakens the judiciary itself, including impartiality. desirable has become the target of political questions. The judiciary is not understood internally, there are divergences on jurisdiction and hierarchy of instances and does not provide legal certainty to citizens. "
Rafael Carneiro, lawyer
" Recent examples of the Federal Supreme Court are beginning to show that the Judges seek to prevail at all costs their agreement, in violation of the law and that decided by the Court it – even: new trial without new and urgent fact, non-respect of the judicial order, consultation with the original rapporteur.
"Regardless of the impetrators or patient (favored), technically, the injunction in Habeas Corpus is fulfilled and then resorted to (19659002) Luiz Flávio Borges D'Urso, criminal lawyer and former president of OAB- SP
the public prosecutor) if he does not agree with him, the order granted to the second degree must be respected by the first degree judge, who can not be agree or disagree with the order of the HC, even if it is provided, must be mentioned in its report at the conclusion of the HC, and may uphold or revoke the injunction granted by the employee, which, technically, would have already been completed.It is the procedural system in force in Brazil.What we saw on Sunday has nothing to do with our legislation. "[19659059]! Function (f, b, e, v, n, t, s)
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