16/10/2023 – 15:01
The Federal Supreme Court resumed the judgment on the possibility of classifying judges and prosecutors for the crime of malfeasance with a provisional scenario unfavorable to members of the Judiciary and the Public Ministry.
Dean Gilmar Mendes accompanied his colleague Edson Fachin and defended the overturn of a decision that prevented judges and members of the MP from being accused of malfeasance when, in the exercise of their functions, they ‘defend a point of view in disagreement with other members or social actors and politicians’.
The discussion was resumed in the virtual plenary of the STF, after a request for a view from the dean. Ministers who have not yet voted have until the 23rd to comment on the issue.
The collegiate decides whether or not to approve an injunction in which Minister Dias Toffoli partially responded to the request of the National Association of Members of the Public Ministry (Conamp).
The entity not only questions the definition of the crime of malfeasance – ‘delaying or failing to perform, unduly, an official act, or carrying it out against the express provision of law, to satisfy personal interest or feeling’ – but also the possibility of judges authorize measures in investigations without a prior request or statement from the Public Prosecutor’s Office.
Toffoli accepted this request under the argument that the Constitution ‘guarantees the autonomy and functional independence of the Judiciary and the Public Prosecutor’s Office’ as ‘an indeterminable prerogative, which guarantees its members the chance to express legal-procedural positions and render decisions without risk of suffering interference or external political pressure’.
In the dissenting vote, Fachin considered that maintaining the injunction granted by Toffoli could ‘violate the fundamental right to equality and the state’s duty to treat everyone with equal respect and consideration, applicable to all public agents who may carry out the acts’ we frame as malfeasance.
“The type of art. 319 of the Penal Code is aimed at public agents who carry out commissive and omissive acts with specific intent, that is, the special purpose of acting”, he noted. “In principle, art. 319 of the Penal Code is compatible with the Constitution and was accepted by it”, he added.
In Fachin’s assessment, the National Association of Members of the Public Ministry, author of the action, did not present evidence that ‘justified the urgency and imminence of the practice of injuries or threats of violations of the prerogatives of members of the Public Ministry through the criminalization of institutional performance of its members’.
“Nor do I identify in the case records that the crime of malfeasance was or has been used to criminalize Parquet members, especially in the exercise of the interpretation of facts and rights that, in theory, may differ from majority opinions or displease them”, highlighted.
The minister noted that the section of the Penal Code that deals with the crime of malfeasance has been in force for more than 80 years, since 1940, and considered that there is no proof of the ‘concrete danger’ of the criminalization of prosecutors that justifies the granting of the urgent, provisional decision .
According to Conamp, prosecutors would be criminalized ‘when acting in the regular exercise and, based on the interpretation of the law and the law, defending a point of view, even if minority, in disagreement with other members or social and political actors’.
For Fachin, ‘it is implausible’ that members of the MP and the Judiciary, ‘in the legitimate exercise of their core activities’ could commit acts of malfeasance. The minister highlighted how the framework depends on a case-by-case analysis.
“It does not seem plausible to me, nor likely, that the criminal response will be the first, violating the principle of minimum intervention, and to the detriment of the internal control mechanisms of each Power or the National Councils of Justice and the Public Ministry”, he indicated.
“It does not seem equally reasonable to me that the lack of control on the part of the Judiciary when filing the complaint if there is an accusation of a “crime of hermeneutics” in clear violation of the Constitution”, he added.
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