Mendonça denied Cleriston HC in February for procedural reasons

The minister of the Federal Supreme Court (STF), André Mendonça, denied a request for Habeas Corpus (HC) presented by the defense of businessman Cleriston Pereira da Cunha at the beginning of the year.

Mendonça’s decision was based on a STF summary that prevents a Court minister from granting HC against an act by another minister. Cleriston’s arrest was ordered by Minister Alexandre de Moraes.

Cleriston suffered sudden death this Monday (20) while sunbathing in Papuda, where he had been held in preventive custody for ten months for his alleged involvement in the acts of January 8.

Due to comorbidities, Cleriston even received a favorable opinion from the Federal Public Ministry (MPF) for Papuda’s departure.

The request for provisional release was forwarded to Moraes at the end of August and was awaiting analysis by the minister. Cleriston was 46 years old, lived in Brasília and leaves behind a wife and two daughters.

“The petition is inadmissible, as it is directed against the act of a Minister of the Federal Supreme Court. According to statement No. 606 of the STF Summary: ‘The original habeas corpus is not applicable to the Full Court for the decision of the Class, or Plenary, rendered in habeas corpus or in the respective appeal’. In effect, this Supreme Court established the understanding that habeas corpus is not applicable against an act of a Minister or a collegiate body of the STF, due to the incidence, by analogy, of the aforementioned entry”, says an excerpt from Mendonça’s justification given in the decision of the February 27, 2023, when the HC was denied.

In another part of the decision, when reporting the defense’s request, Mendonça says that the lawyer was denied the HC request by the Federal Regional Court of the 1st Region (TRF1), which claimed incompetence to respond to the request since the inquiry rapporteur, Minister Alexandre de Moraes, did not grant this power to the judges of TRF1 and the Court of Justice of the Federal District and Territories (TJDFT).

“The Reporting Judge declared the Court’s incompetence, since, within the scope of Inquiry No. 4,879, ‘the Reporting Minister, Alexandre de Moraes, delegated to the judges of the TJDFT and the TRF of the 1st Region the competence to carry out the necessary hearings of custody of individuals arrested in the act as a result of those facts, expressly reserving, however, the power of the Supreme Court over deliberation on possible requests for relaxation of imprisonment, conversion into preventive detention or granting of provisional release'”, highlighted Mendonça.

Minister André Mendonça’s decision did not take into account the defendant’s health problems and the difficulties faced by Cleriston inside the prison.

The defense report also mentions abuses committed during the arrest and in the accusatory process against the businessman. In the petition, lawyer Bruno Azevedo attached a medical report informing about the delicate condition of the businessman’s health and warning about the risk of sudden death if medical treatments were not resumed properly.

“According to the attached Medical Report, the person caught has been under follow-up at HRT’s rheumatology department for around 8 (eight) months, due to multiple vessel vasculitis and myositis secondary to Covid-19, having even remained hospitalized for 33 (thirty-eight) months. three) days and subjected to a series of procedures, using daily medication every 12 hours, as he runs the risk of death if he does not use the drugs, and since he is in prison, he has not taken medication, running an imminent risk of suffer a sudden illness and die in the provisional detention center, where he is located”, says an excerpt from the petition dated January 12th.

Cleriston was a first-time offender, with no criminal record, had a fixed address and was the sole provider for his family.

Wanted by People’s Gazettelawyer Bruno Azevedo said that at the time of the request, all lawyers for the January 8th defendants found themselves faced with new situations and followed the natural path of appealing to the higher court, however, their requests for prison relaxation were denied based on in the STF summary that supported minister André Mendonça’s decision.

“All colleagues who filed Habeas Corpus requests at the same time had their requests denied for the same reason […] From then on, we made other requests to relax the prison by other means”, said Azevedo.

For the lawyer, given all the “newness” of the investigation, André Mendonça’s decision cannot be considered authoritarian.

Official reports point to human rights violations of the 8/1 defendants

At least three reports from different entities point to human rights violations of those arrested by 8/1. At the time that minister André Mendonça denied the release of Cleriston Pereira, only one of the three reports had been published.

On January 23, 2023, the Federal Public Defender’s Office (DPU), the National Mechanism for the Prevention and Combat of Torture (MNPCT), of the Ministry of Human Rights, and the Public Defender’s Office of the Federal District (DPU-DF) issued a joint document in which they report several problems due to the sudden increase in the prison population in the Federal District (DF).

In addition to reporting the detention of pregnant women, children and the elderly, the document warns of the lack of basic hygiene conditions, overcrowding of cells and other problems linked to the lack of structure in the prison.

In March, after inspection of the detention centers, the National Mechanism for the Prevention and Combat of Torture (MNPCT) concluded that the January 8 arrests caused overcrowding in the prison system, which led to several problems, such as “lack of privacy to carry out the basic needs”, “lack of ventilation and lighting” and “lack of basic hygiene items such as soap, toilet paper and sanitary pads”.

Another report published in October by the Association of Families and Victims of 8 January (Asfav) highlights “human rights violations” of 8/1 prisoners and “abuses committed by the Federal Police (PF)” during the arrests of “people elderly, those responsible for minors and people with comorbidities”.