Without evidence, TRF-1 terminates investigation against former president of Funai

In response to a request for Habeas Corpus (HC), the Third Panel of the Federal Regional Court of the 1st Region (TRF1) decided, unanimously, to extinguish investigations against the former president of the National Foundation of Indigenous Peoples (Funai), Marcelo Xavier, in relation to the murders of indigenous worker Bruno Pereira and the journalist Dom Phillips. The decision was made due to a lack of evidence.

“In view of the irrefutable absence of just cause, it is not only possible, but even necessary, to suspend IPL no. 2022.0037654-DPF/TBA/AM, with regard to the patient, as the illegal constraint is unequivocally characterized […] It cannot be accepted that social outcry is a basis for justifying criminal prosecution to the detriment of the norms and principles that support Criminal Law (noun and adjective), under penalty of returning to the phase of private revenge, which would seriously confront the Constitutional State of Law”, says an excerpt from the decision issued this Thursday (1).

According to the understanding of the Federal Supreme Court (STF), the decision to block or suspend an investigation through HC only occurs in exceptional situations, seen as “the manifest atypicality of the conduct, the presence of cause for extinction of the patient’s punishment or the absence of minimal evidence of criminal authorship and materiality”.

At the opening of the investigation, in May last year, the Federal Police (PF) alleged that Xavier had consented to the crimes that resulted in the two deaths by “dismantling the Funai structure” and ignoring “protection measures that he should have adopted in protection of civil servants who had the duty to monitor environmental crimes in Indigenous Lands”.

In a previous decision, last month, judge Ney Bello, of the Federal Regional Court of the 1st Region (TRF1), had already suspended investigations against Xavier.

At the time, the judge understood that the PF had imposed on Xavier the role of “universal guarantor”, as if he were criminally responsible for protecting Funai employees. The judge recalled that not even the State is allowed such civil liability, much less it would be criminally attributable to a public agent.

In the decision that suspended the PF investigations, judge Ney Bello classified the accusation made by the PF against Xavier as an “illegal constraint”.

Wanted by People’s Gazettethe lawyer for the former president of Funai, Bernardo Fenelon, said that the TRF-1 decision “ends an unbelievable injustice that was being committed against Marcelo Xavier”.

“By seeking to attribute to Xavier, without any logic, such a serious crime (which already had confessed perpetrators and masterminds), the responsible police authority committed a true legal atrocity. Fortunately, the nightmare is over,” said the lawyer.