Entities such as the OAB (Brazilian Bar Association) and the Public Defender’s Office have disagreed in recent months with Alexandre de Moraes, from the STF (Supreme Federal Court), due to the minister’s refusal to respond to requests that they consider fundamental for the broad defense of their represented.
This type of situation is mainly related to the extensive use of the virtual plenary instead of face-to-face demonstrations by lawyers in trials and led the Order to release two public demonstrations, signed by the entity’s president, Beto Simonetti.
Added to this, lawyers and defenders have been complaining about the minister’s denials of class requests.
One of the recent complaints is that of lawyers for targets of Federal Police action investigating suspected illegal use of Abin (Brazilian Intelligence Agency), under the Jair Bolsonaro (PL) government, to monitor cell phones of journalists and opponents of the former president.
The operation is under the supervision of Moraes, and the lawyers say they did not even have access to the decision in the case or the request for due diligence made by the PF.
Despite the friction, the OAB shows no intention of entering into direct conflict with the minister and has been trying over the last year to show that it sympathizes with the STF’s actions against those accused of participating in undemocratic acts since Bolsonaro’s administration.
Since that time, however, he has been expecting reciprocity from the minister with the lawyers’ requests.
When contacted, the minister said through the advice of the STF that “broad defense is fully guaranteed in the virtual plenary, with no harm to the oral arguments held there”.
One of the recent reactions to the minister took place in a trial by the First Panel of the Supreme Court, presided over by Moraes, on the 7th, and mobilized both the OAB and the Public Defender’s Office.
The group would judge a case that was in a virtual plenary session and was taken to an in-person trial at the request of Minister Cristiano Zanin. In the action, the Public Defender’s Office asked a defendant for cigarette smuggling to sign an agreement not to face criminal action.
One defender wanted to speak out before the ministers’ vote for the so-called “oral argument”, when the party’s representations present their arguments. Moraes denied the request on the grounds that the regulations did not allow it.
“The First Panel has already agreed that oral arguments cannot be heard in internal appeals. The Supreme Court’s Internal Regulations have the force of law. A specific law, prevailing over the general rule”, said the minister to the defender.
The denial did not please the OAB, which prepared a note in which it expressed “concern about the relaxation or suppression of the constitutional right to adversarial proceedings and broad defense by the Federal Supreme Court.”
According to the Order, there was no “recognition of the prerogative of lawyers to give oral arguments in person, during sessions, in the cases provided for by law”.
The note signed by Simonetti says that oral arguments are part of the right to defense, a constitutional guarantee that “is not subject to internal regulations, even those of the STF.”
“Such regulations regulate the functioning of the courts and cannot correct or suppress constitutional rights regulated by federal laws. The refusal to deliver oral arguments provided for by law represents a violation of procedural law and the Constitution”, says the statement.
Within the Federal Public Defender’s Office, Moraes’ decision also had repercussions, as the defendant was represented by a defender.
In the report, the public defender of the Union Gustavo de Almeida Ribeiro, who works before the Supreme Court, says that oral arguments have gained importance because “increasingly, the cases being processed in the STF are judged in the virtual system and decided in a monocratic manner, mainly habeas corpus”.
Therefore, he adds, when there are actions that discuss topics in which there are controversies and are taken to the face-to-face system, it is essential “that oral arguments be allowed, because it allows the defense to bring to the attention of the judges important issues, which many times must be observed to analyze those cases”.
The Defender’s Office, as well as the OAB, has understood that oral arguments were necessary in the case in question.
In September, the OAB had already expressed its opinion in a request to the Supreme Court regarding Moraes’ intention to judge the majority of the actions of the defendants in the January 8th coup attacks in a virtual plenary session.
The request was made to the president of the Supreme Court at the time, Rosa Weber, currently retired. The Order asked to reconsider sending the trials to a virtual plenary.
“It is the Order’s historical position that the virtual definition of any judicial act, including trials, is the responsibility of the parties to the process”, states the document, signed by Simonetti and other members of the institution.
Rosa opened the request for a statement from Moraes, who stated in an official letter that “the trial in a virtual environment fully guarantees full defense and contradictory proceedings, in absolute respect for due legal process, and there is, therefore, no reason for any reconsideration.”
Virtual plenary brought efficiency and is transparent, says minister
Wanted by SheetMinister Alexandre de Moraes responded through the Supreme Court’s advisors.
“The Virtual Plenary, in operation since 2016, brought more efficiency and collegiality to the decisions of the Federal Supreme Court”, says the statement.
“It is important to remember that in-person collegial sessions are limited to Wednesdays and Thursdays and, on average, two cases are judged per session. With the Virtual Plenary, the STF increased the number of collegial decisions and reduced the total number of individual decisions.”
It also states that the virtual plenary is “absolutely transparent and democratic” for a number of reasons.
Among them, because the agenda is available on the website a week in advance, lawyers can send a video of the oral argument up to 48 hours before the session and, during the trial, they can point out questions of fact or memorials, in addition to requesting the sending in person.
“Even with a transparent system that allows greater access to Justice, the Supreme Court has listened to suggestions and is open to contributions from society to improve itself. The Virtual Plenary itself has undergone constant improvement and there are studies underway to implement improvements”, he says .
Regarding the refusal for oral argument, Moraes states that he only applied a unanimous decision of the First Panel, taken in 2022 in original action 2,666, which cannot be sustained in a regulatory appeal.
Regarding Abin, it says that “everyone who requested a view had authorized access, except in relation to ongoing investigations. According to the current binding summary, in these cases it is necessary to wait for the end of the investigations.”