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Judge on March 12, 2008, Habeas Corpus petition of the naturalized Brazilian Ernesto Plascência San Vicente, imprisoned in Piraquara (PR), who demanded the cancellation of all the acts practiced by Judge Sérgio Moro on vacation, then the Court of the Federal Supreme Court (STF) understood that a judge could work on a lawsuit during his holidays. On the occasion, the Minister Marco Aurelio Mello, rapporteur of HC said: "The magistrate on vacation must really stop the judicial activity, there is no doubt.The rule does not exclude l & # 39; Exception, when faced with the large number of cases, before the court's concern, returns and practices acts in a certain process.While judges do not have the trial – and the organizational structure of the judiciary must be respected – in certain conditions, which are exceptions, not the rule, the magistrates can interrupt their leave.
But this is not the most controversial issue.Every episode that exposes the fracture of the Judiciary, A war of decisions that accentuates the controversy over the institution.The lawyers heard said that a succession of errors had been committed.And the biggest controversy in any case, also divides the specialists and begins by a pro blame: Judge Rogerio Favreto, of the TRF-4 (Federal Court of the 4th Region) would only have the power to decide Habeas Corpus if presented a new fact.
There are experts who understand that the fact that Lula is a pre-candidate for the presidency of the Republic is a relevant and new fact. And there are lawyers who do not judge him. Those in the first group point out that Judge Rogério Favreto, an appellant, has the autonomy to decide. In this sense, the reaction of Sérgio Moro, trial judge of the 13th Federal Court of Curitiba, was unreasonable: even if he was not on vacation, he should comply with the order because he is inferior to Favreto in the structure of the Judiciary. 19659002] Among the experts who consider that Lula's pre-candidacy is not a "new fact", there is an badessment that Habeas Corpus could only be addressed to the Superior Court of Justice or the Court. Federal Supreme Court. Former STF President Carlos Velloso said yesterday that the decision that had the release of former President Lula is "teratological", that is, absurdly legal. "The decision is teratological, so Judge Sérgio Moro did very well to make the weights, it is not possible at any time to make decisions that contradict and clash with the law," said the former Minister, released from the STF in 2006.
Velloso pointed out that it was the TRF-4 that allowed Moro to order the arrest of Lula in April, when the PT began serving his sentence to the Superintendence of the Federal Police of Curitiba. "A habeas corpus has been filed in the Superior Court of Justice (STJ), which has denied, as has the Federal Supreme Court (STF), which has denied," recalls the former minister. "They have chosen a Sunday morning attendant for this, and a Sunday morning attendant has responded.The judge must understand which judge can do a lot but can not do everything.That's what Brazilian judges need to understand ", concluded the former president of the Supreme Court.
Judge João Pedro Gebran Neto, who was the reporter of the case, also had to wait until the end of the year. "He can only enter the area of activity of the appellant," said a judge from Minas Gerais, who could never "do the advocate" of an act deemed "absurd" "by a judge, which does not exist in Brazilian law. "If the magistrates on vacation begin to disavow the appellants, it will be chaos," said the same magistrate, who prefers not to speak publicly in a specific case.In the middle of the war decisions between the two judges, experts TRF-4 President Thompson Flores would have the legal authority to revoke previous decisions, and he would be left to negotiate to find a solution.
Legal war, which is political, the demonstrations were intense. The group defenders and the defenders of democracy have asked the TRF-4 to arrest Judge Sérgio Moro and the delegate of the Federal Police at Parana Roberval Drex. According to the group, Moro, on vacation, could not comment on Lula's arrest. And the delegate for not having completed the release decision determined by the judge Rogério Favreto. The Association of Judges for Democracy (AJD) also issued a statement "in defense of the functional independence of Rogério Favreto and against the violation of the principle of natural judge by the judiciary itself."
: "The decision made by the judge (Rogério Favreto), of the so-called fifth constitutional body, only demonstrates that a profound reformulation of the judiciary is necessary because of the political rigidity that this body has suffered in the past. over the past 15 years, policies. "
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