STJ decides that secret PMAP council session needs to take place with the presence of the accused and his representative – News of Brazil
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The Second Panel of the Superior Court of Justice (STJ), under the terms of the vote of the rapporteur minister Herman Benjamin, in line with the divergence stamped by the vote of the judge Gilberto Pinheiro, reformed the understanding established by the Court of Justice of Amapá (TJAP) in the IRDR Theme and determined that the secret session of the Disciplinary Council of the Military Police of Amapá (PMAP) must take place with the presence of the accused and his legal representative.
The case has to do with a lawsuit filed by PM José Edmundo Barbosa Cascaes against the state of Amapá for an administrative act, a secret session in the disciplinary council of the Military Police, combined with reintegration into public office and compensation for moral damages.
According to Cascaes’ defense, the Court of Justice of Amapá, in 2017, 2018 and mid-2019, judged five cases that dealt with the same right, “nullity of the secret session of trial of military police officers in the disciplinary council military, that is, with the same legal discourses, as can be seen in the judgments of the cases.
However, in mid-2019, all the processes that deal with the same “secret session” and have the state as a defendant, fell under the rapporteurship of the then judge Sueli Pini, who changed her understanding and respect for the nullity of the secret session, going against the precedents of the STF and STJ.
“Such a change of position, inaugurated the divergence of understanding in the TJAP, causing legal uncertainty, since the processes that were distributed to the rapporteur of Sueli Pini, now retired, were doomed to failure in this court”, says the defense of Cascaes.
It so happens that in judgments published in February and March 2020, under the rapporteurship of the judge Gilberto Pinheiro, the thesis of nullity of the secret session was the winner, most likely because the judgment was initiated in September 2019, that is, before the change of position on the part of the Court.
The Court of Justice of Amapá, by majority, had edited Theme 16, establishing the following thesis: “The failure to subpoena the defendant or his lawyer for the act of preparing a report by the Disciplinary Council of the Military Police of Amapá, Law 6804/1980, as this report is informative in nature, does not result in any type of violation of the principles of the contradictory and ample defense, not constituting a reason for the nullity of the exclusion of the military from the ranks of the corporation”.
In February of this year, the process was unarchived and forwarded to the Superior Court of Justice, where it has now been decided that the secret session of the Disciplinary Council of the Military Police of Amapá must take place with the presence of the accused and his legal representative.
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