STJ minister keeps free PCC member arrested in Bolivia who killed prison guard

The minister of the Superior Court of Justice (STJ) Daniela Teixeira kept free the former director of the Gaviões da Fiel samba school, Elvis Riola de Andrade, known as Cantor, suspected of being linked to the criminal faction Primeiro Comando da Capital (PCC) . In 2021, he was sentenced to 15 years in prison for the murder of a prison guard. The crime occurred in 2009 and was allegedly ordered by PCC leaders in Presidente Bernardes (SP).

Singer was detained preventively between 2010 and 2021, which is why he was able to appeal for freedom. The Public Prosecutor’s Office took legal action against the decision and the former leader’s sentence was increased to 16 years in a closed regime. A fugitive, he appealed to the STJ through a habeas corpus. The minister then decided to maintain the freedom of Elvis Riola de Andrade on December 18th, reported the column Guilherme Amadoon the portal Metropolises.

On the 10th, Cantor was arrested in Bolivia for using false documents, but was released upon arriving in Brazil following Daniela Teixeira’s decision. “In the specific case, when considering reasonableness and proportionality, which must be done when analyzing the need to apply a precautionary segregation measure, I verify that it is not necessary to decree preventive detention, as the patient, when convicted by the Court of Jury, his preventive detention was revoked ‘in view of the period of precautionary detention to which the accused was subjected and the possibility of establishing an open regime by the execution court’”, decided the minister.

In the decision, the minister also cited the right to the presumption of innocence of the accused. “By preserving the presumption of innocence and allowing individuals to await the outcome of their cases in freedom, we promote a fairer and more equitable approach, thus strengthening confidence in justice and respect for human rights,” she said.

The MP appealed Daniela Teixeira’s decision to the STJ itself, but the request was denied. The President of the Court, Minister Maria Thereza de Assis Moura, endorsed Teixeira’s decision during the judicial shift and denied the request for Cantor to return to the closed regime. The Public Ministry of São Paulo should again request the arrest of the former director of the Gaviões da Fiel samba school.

In a note sent to the portal MetropolisesMinister Daniela Teixeira highlighted that “the defendant was no longer in a closed regime for two years and five months” and that if he failed to comply with any rule after the decision, the facts must be investigated by the competent authorities and have no repercussions on the decision given by the STJ.

See Minister Daniela Teixeira’s note on the case:

“Regarding the reports today, which deal with a defendant arrested in Bolivia, the facts are strictly the following: The case being processed in this office has no relation whatsoever to drug trafficking or criminal organization. This is a murder charge. After serving preventive detention for 11 years, the defendant was tried by jury and sentenced to 15 years.

The jury judge, on 8/19/2021 (two years and 5 months ago), determined that the defendant be released, on the following grounds: “since the accused has been in pre-trial detention for more than 11 years, having already completed the lapse to progression. He will be able to appeal freely. Release permit is issued.” Therefore, it is important to emphasize that the defendant had no longer been in a closed regime for two years and five months.

On August 2, 2023, the TJ/SP appealed, re-decreeing preventive detention, which had been revoked by the jury judge, and determining the return to the closed regime. Following this decision, the defendant’s HC was distributed to the STJ, requesting the reform of the TJ/SP’s decision, in order to maintain what had been decided by the jury judge: answer the case in freedom. And that is what Minister Daniela Teixeira granted in the habeas corpus of her report. Only that.

If the defendant failed to comply with any rules after the decision, if he committed other crimes, or carried false documents, this must be analyzed by the ordinary courts and has no repercussions on the decision already given, which was limited to analyzing the crime of homicide, and constitutional law to appeal freely, even because, as the first-degree magistrate observed, the defendant had already completed the period of time necessary for the progression of the regime.”

Daniela Teixeira was nominated by Lula for the STJ

In August last year, President Luiz Inácio Lula da Silva (PT) appointed the then lawyer Daniela Teixeira to occupy the position of minister of the STJ. The nomination was approved by the Senate in October, along with judges Teodoro Silva Santos and José Afrânio Vilela, who also became ministers at the court.

Daniela was the PT’s preferred name to fill the position. She had the support of the Prerogativas group, lawyers who fought against Lava Jato and who support Lula. In addition, she served as a federal advisor to the Brazilian Bar Association (OAB) twice and was also vice-president of the entity in the Federal District.

The appointments of new ministers in the Official Gazette of the Union (DOU) occurred after an impasse in the Senate. The president of the House, Rodrigo Pacheco (PSD-MG), ordered an investigation into suspicions of favoritism in sending Daniela’s name for official registration on the Planalto. The Senate Advocacy investigated the reasons that led the Board of Directors of the House to send only Teixeira’s name to the Presidency of the Republic for publication, even with the approval of the three names in the same session on October 25th.

As a result, the lawyer’s appointment could have been published in the DOU before the other two approved ones, and this would have placed her ahead of them in the criteria of seniority in the court, used to define a series of functions within the Court. Pacheco sent the names to the Presidency of the Republic in early November. Teixeira denied any irregularities in his appointment. The nominations were published in an extra edition of the DOU on November 10th last year.