Post by account_disabled on Mar 12, 2024 0:37:25 GMT -5
In October of last year, Minister Gilmar Mendes, in a monocratic decision handed down in the files of complaint 43.130, granted a Habeas Corpus ex officio, declaring the incompetence of the Court of the 7th Federal Criminal Court of Rio de Janeiro to judge criminal action against an accused defendant of committing crimes of passive corruption, bidding fraud, embezzlement and criminal organization, determining the sending of the case to the Electoral Court of Goiás [1] .
On that occasion, the rapporteur relied on the Supreme Court's own jurisprudence, which, in the judgment of Inquiry 4,435 (carried out in March 2019), decided that it was up to the Electoral Court to judge electoral and common crimes related to them, highlighting that " according to the fundamental guarantee of Portugal Mobile Number List the natural judge (article 5, items XXXVIII and LIII, of the Federal Constitution), trials must be carried out by the competent jurisdictional authority, with the designation of exceptional courts or tribunals being prohibited " .
Against this monocratic decision at the end of last year, a regulatory appeal was filed by the Public Prosecutor's Office, on the grounds that there were no grounds capable of authorizing the granting of Habeas Corpus ex officio, since the violation of the principle of natural justice would not have been proven by the defense.
Now, in the session on May 25th, the appeal was rejected by the 2nd Panel, deciding , by three votes to two, that the case should not be processed in the 7th Federal Criminal Court of Rio de Janeiro, as it is the responsibility of the Justice Electoral Court to judge electoral and common crimes related to them, in accordance with, let me repeat, jurisprudence already consolidated by the Plenary of the Supreme Court.
In this most recent judgment, ministers Nunes Marques and Ricardo Lewandowski followed the same position as the rapporteur, as they understood " that the conduct has an unequivocal electoral connotation precisely regarding the alleged receipt of illicit amounts through unofficial electoral donations, a crime that falls under the article 350 of the Electoral Code" , Minister Edson Fachin, who opened the divergence, was defeated, as he understood that there was no evidence in the file that the alleged facts derive from the practice of electoral crimes or at least a connection between their conduct and electoral crimes " , in addition to Minister Cármen Lúcia, because there was no "illegality or abnormality that could determine the judge's official action ".
This last decision of the 2nd Panel, in addition to being correct, follows, as said, the understanding of the Plenary of the Supreme Court, embodied in the judgment of the aforementioned Inquiry 4,435 when, by six votes to five, the majority of the eleven ministers maintained with the Electoral Court the competence to judge crimes related to electoral crimes, prevailing then the vote of the rapporteur, minister Marco Aurélio, according to which " the competence of the specialized Justice overrides that of the common one, with the Electoral Justice itself having to decide whether the investigations and processes should be dismembered or no ".
In that paradigmatic judgment (true leading case ), the rapporteur noted that there was "no room for doubt regarding the competence of the Electoral Court to judge common crimes related to electoral crimes ", being accompanied by ministers Alexandre de Moraes, Ricardo Lewandowski, Gilmar Mendes, Celso de Mello and Dias Toffoli, under the understanding that article 109, IV, of the Constitution establishes that the Federal Court judges causes of interest to the Union, except for the competence of the Electoral Court and the Military Court. Furthermore, the Electoral Code, in section II of article 35, stipulates that the electoral judge must judge electoral crimes and common crimes related to them.