5 abuses by the STF in the case of the businessman killed in prison by 8/1

The death of Cleriston Pereira da Cunha, aged 46, at the Papuda Penitentiary Complex could have been avoided if legal procedures had been properly followed. Various abuses can be found throughout the process. Cleriston already had a release warrant ordered by the Federal Public Ministry since September. Despite this, the Federal Supreme Court remained for almost three months without accepting the MPF’s understanding, as provided for by law.

Due to more superficial procedural illegalities, PCC drug traffickers were released following decisions by STF ministers. President Lula’s own conviction was annulled by the Court because it considered that there was an error in the competence of those who should lead the process. Even with this jurisprudence, the STF ignored the eight requests for release presented by the Bahian businessman’s defense lawyer.

A People’s Gazette spoke to Eliana Calmon, a Brazilian jurist and judge, who was part of the Superior Court of Justice until 2013. “The STF does not comply with the criteria of following first an investigation that is the responsibility of the Federal Public Ministry”, says Calmon. According to her, the very serious problem is related to the various conducts of the Supreme Court.

1. STF is not the natural judge of the case

The defendants in the acts of January 8 should have been sent to Federal Court, given that the crimes of which they are accused occurred in a federal area. As the facts occurred in the Federal District, the criminal actions should, therefore, be analyzed by the first level of the Federal Regional Court of the 1st Region.

That’s not what happened. The Federal Court, at the time the proceedings began, stated that it would not be its jurisdiction and assigned the cases to the STF. With the argument of possible involvement of parliamentarians, the STF attributed the jurisdiction to itself. But, to date, the Federal Public Ministry has not even denounced the participation of any parliamentarian in the events of January 8th. This indicates that, without at least one criminal action involving parliamentarians, the Cleriston process should not be conducted by the Supreme Court.

2. There was no individualization of conduct

According to the Federal Constitution, people must respond individually for their conduct. However, this was not the line adopted by the Court. The STF used the thesis of “multitudinous crimes” in all criminal actions relating to January 8th that have already been judged. The multitudinous crime considers that there was an influence among the people who were present, inciting everyone present to commit the crimes.

According to the Penal Code, crimes arising from crowds in riots should mitigate the penalty. The law considers that infractions may have been committed due to the reaction of those involved to the behavior of others. Normally, the pressure generated by environments can cause rapid and disorderly movements.

As already shown by People’s Gazette, defense lawyers criticized the thesis adopted by the STF. One of the arguments is that there were different behaviors of the people present. The images from security cameras in public buildings clearly show that while protesters vandalized public property, others sought to preserve the items.

3. There was no justification for preventive detention

“Preventive detention only exists in those cases that are established by law”, comments Eliana Calmon. She explains that preventive detention occurs when the defendant is disrupting the process or when he is at risk of fleeing. Other factors that may indicate preventive detention are when the crime has caused social commotion or the accused generates a feeling of threat in society, which tends to happen in crimes of a very serious nature.

“Even in crimes where there is some seriousness, but none of these four hypotheses occur, these people should not be imprisoned”, he adds. The court also establishes some conditions for defendants who are free to face criminal charges, such as not leaving their place of residence or presenting themselves whenever called.

Although the legislation does not indicate preventive detention in Cleriston’s case, he was kept in Papuda for almost a year. The businessman was a first-time offender and his lack of a criminal record should have already favored him. Furthermore, he posed no risk to society, had a fixed address and was cooperating with the criminal proceedings.

4. There was no analysis of the eight requests for release due to health reasons

The Code of Criminal Procedure determines that the preventive detention of inmates with more than 90 days is reevaluated. Given this, Bruno Azevedo de Sousa, the defendant’s lawyer, presented eight requests for release. In all of them, Azevedo de Souza presented Cleriston’s delicate health condition.

In 2022, Cleriston was hospitalized for 33 days due to heart problems resulting from Covid-19. A medical report attached to one of the release requests requested that the defendant undergo necessary examinations so that his health could be assured. The lawyer made it clear that the lack of medical examinations and staying in an unsanitary location could “lead to fatal complications for the patient”. The requests were not analyzed by the Court.

In 2018, the Supreme Court itself determined that the treatment of a serious illness is grounds for humanitarian house arrest. The decision was made after analyzing the case of former state deputy Jorge Picciani, who served preventive detention at home after being diagnosed with prostate cancer.

“If, by chance, eight requests were made by the defense and the judge did not make an assessment, within a maximum of 30 days it would immediately be possible to appeal to a higher court”, explains Eliana Calmon. She adds that “after the Supreme Court there is no one else to turn to”.

5. Since September, MPF had decided to release

The Federal Public Ministry gave a favorable opinion on Cleriston’s provisional release on September 1st. Carlos Frederico Santos, Deputy Attorney General of the Republic, made it clear that the defendant no longer posed a risk to public order or the possibility of interfering in the collection of evidence. Despite this, the STF did not comment.

“If he [MPF] determined that that person should be released and that person was not released, great illegality is effectively taking place. If it were in any other court, a habeas corpus would be decided immediately in favor of releasing this prisoner”, says the judge.

Eliana Calmon explains that the Public Ministry is, within the law, the “owner of the criminal action”. Therefore, the MP is responsible for requesting the services of the judiciary, when he deems it necessary. “As the STF is the last body and has no one to turn to in relation to habeas corpus, then, [Cleriston] he was imprisoned until he died”, he adds.

“The only legal force written in the Constitution that can put a limit on the illegalities and irregularities committed by the Federal Supreme Court is the National Congress. This is not happening”, concludes Eliana Calmon.