Chamber approves project to favor defendant in case of tie – 03/22/2023 – Power

The Chamber of Deputies approved this Wednesday (22) a proposal that establishes that all judgments of criminal matters in the STF (Federal Supreme Court) and STJ (Superior Court of Justice) that end in a tie must favor the defendant. The matter will go to vote in the Senate.

The proposal generated criticism from parliamentary supporters of Lava Jato. Coordinator of the task force for the operation until 2020, now deputy Deltan Dallagnol (Podemos-PR) said in plenary that the measure favors bandits and criminals and dubbed the project Cristiano Zanin —in reference to the president’s lawyer Luiz Inácio Lula da Silva ( PT) and the main one quoted to take over the next vacancy in the STF.

The project was approved symbolically, without identifying how each deputy voted, in a quick vote in plenary. The text was not even analyzed by the CCJ (Commission of Constitution and Justice), with the urgency approved the night before.

According to parliamentarians and constitutionalists interviewed by the Sheetthe discussion of the project gained strength from the judgment in the STF of former deputy André Moura (União Brasil), who was government leader Michel Temer (MDB).

In one of his lawsuits, in September 2021, the trial ended in a 5-5 tie.

At the time, Justice Luiz Fux determined that, in the face of a tie, the trial would be interrupted – since the STF was lacking, with only ten justices, after the retirement of Marco Aurélio Mello.

Gilmar Mendes was against the proposed solution and argued that, in the case of a tie, the defendant should be favored. The purpose of the bill is to prevent Fux’s understanding from prevailing in other cases and establish that acquittal will be automatic in the event of a tie.

At the time, André Mendonça, nominated by former President Jair Bolsonaro (PL) for a vacancy in the STF, was still waiting for Senator Davi Alcolumbre (União Brasil-AP) to guide his sabbatine at the Senate Constitution and Justice Commission.

He became a minister in December and, since then, André Moura’s case has been referred twice to the plenary of the Supreme Court, but has not been judged.

The judgment in which there was a tie took place on September 29, 2021. Seven days later, deputy Rubens Pereira Júnior (then PC do B-MA, today in the PT) filed the bill to establish that “in all judgments in matters criminal or criminal procedure in collegiate bodies, in the event of a tie, the decision most favorable to the individual charged will prevail”.

In December 2021, Moura’s lawyer at the time, Antônio Carlos de Almeida Castro, known as Kakay, filed an appeal with the Supreme Court asking for the ex-deputy’s acquittal, under the thesis that the tie favored him.

According to him, the suspension of the trial pending the appointment of a new minister went “against the fundamental postulate of the presumption of innocence” and contravened “the most recent precedents of this Supreme Court”.

Currently, Kakay is no longer Moura’s lawyer, but he claims that the Chamber’s project is a “tremendous obviousness” and that, if the tie favors the defendant in habeas corpus, it should also favor the judgment of criminal actions. A Sheet failed to locate the former deputy’s current defenders.

The designated rapporteur for the project voted on this Wednesday, in the Chamber, was the leader of União Brasil, Elmar Nascimento (BA). He made only one change in the proposal, to provide that the defendant would benefit from the tie immediately, even if any minister misses the trial.

“[Será proclamado] Immediately this result, even if, in the event of an open vacancy to be filled, impediment, suspicion or absence, the judgment was taken without all the members of the collegiate”, added Nascimento.

André Moura was convicted by majority in two other cases in the Supreme Court.

During the discussion, Deltan Dellagnol said that the proposal harms Lava Jato.

“This rule will favor President Lula and whoever he wants to nominate, Cristiano Zanin, to the Federal Supreme Court, because when he gets there he will consider himself impeded and suspect in several Lava Jato cases,” he said.

According to the former prosecutor, whenever there are two against two, because Zanin declared himself a suspect, “the resolution of the judgment will be in favor of the criminals”.

The two classes of the STF are composed of five ministers each, hence Dallagnol’s calculation.

In response, Elmar Nascimento stated that the deputy is a representative of the Public Prosecutor’s Office and highlighted that the body has “punitive intent, which considers everyone guilty, which wants to put everyone under the same rule”.

“Voting 2 to 2, given this constitutional principle of the presumption of innocence, it must always be good to release the defendant”, said Elmar.

“We cannot arrest or keep in prison anyone who the State is unable to demonstrate, without a shadow of a doubt, that he has a claim to guilt. what they do when there is, for example, a vacancy in one of the court’s classes”, stated the project’s rapporteur.