06 Jan Augusto de Arruda Botelho
The proverb “Not everything that glitters is gold” defines well the days that we live in Brazilian criminal law. In a scenario in which legislative changes have brought the country rights-restrictive and extensive rules of duty (often with skewed interpretations of belatedly imported laws, as in the case of award-winning collaboration), the Federal Supreme Court has taken an important step towards guarantees In deciding, at the end of August, that habeas corpus is “noble action without any limitation in the Constitution” and, therefore, can be used to question the act of minister of the Federal Supreme Court (STF).
When it comes to the freedom of others, there can be no owner of the ball, who commands the game and is the only one capable of reviewing whether or not it was necessary. And this is more or less what the STF summary 606 says: if the rapporteur of a case may have erred in his decision, it is not for the rest of the court to analyze, through habeas corpus, this possible error. In other words, against an act of only a minister of the Supreme, nothing can be done. If it’s wrong, then it’s wrong.
It may sound like a “lawyer’s speech,” but every human being errs, even ministers of the highest Court. Proof of this is that Minister Marco Aurélio, in the judgment that dealt with overcoming the problem of overcoming this rule, stated that “if repentance would kill, it would be a dead man.” He was referring to the position he took, years ago, to the detriment of habeas corpus. In order to avoid an accumulation of resources, the STF preferred to adopt criteria to admit it – and Marco Aurélio’s understanding, in face of a concrete case, was the umbrella of this jurisprudence.
But as noble as it is, the habeas corpus was able to convince even those who made it difficult one day. However laborious it may be, the Court has a duty to give every citizen the widest possible defense.
It seems kind of nonsense to say so in a country that forgets poor people incarcerated by starving robberies or carrying less than a gram of marijuana but at the same time applauds stubborn tellers and liars as if they were heroes. But this memory is a trifle of justice: the right to defense is the foundation of democracy.
Hence the importance of the decision, although incidental and without the general repercussion desired. The STF decided that none of its judges could have the last word individually. There is no owner of the ball: the game is collective.
The State still has the important role of investigating and judging, but must do so in a technical way, always respecting and even being the very expression of the defense of the right of defense. The game, in this case, is not between teams of good or bad. There are no idols or antagonists. It is about preserving democracy.
Augusto de Arruda Botelho is president of the Defense Law Defense Institute and Gustavo Mascarenhas is a lawyer
Read more on this subject at http://oglobo.globo.com/opiniao/fundamento-de-democracia-18051036#ixzz4V1PWHb7y
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