the minister André Mendonçaof STF (Federal Supreme Court), decided this Friday (23.Sep.2022) that the two reports from the news portal should be re-aired UOL that report on the president’s family’s real estate operations Jair Bolsonaro (PL). The texts were removed by order of the Justice of Brasilia.
Mendonça’s decision was quick, given a few hours after the case be distributed to the minister on the night of this 6th (September 23). O Power 360 anticipated that the UOL would go to the Supreme Court and that the Court’s tendency was to overturn the order to remove the reports from the air. He also published the magistrate’s decision in 1st hand.
Mendonça said that all Brazilians are guaranteed the “broad exercise of freedom of expression” and that the Judiciary must act as protector of fundamental rights and guarantees. Here’s the intact of the decision (127 KB).
“In the Democratic State of Law, Brazilians from all political-ideological spectrums must be guaranteed the broad exercise of freedom of expression. Thus, the restriction of this free exercise, under the modality of censorship, on any pretext or however good the intentions, especially if such restriction comes from the Judiciary, the ultimate protector of fundamental rights and guarantees, does not find shelter in the Republican Charter of 1988”said the minister.
Full decision
Read the full text of Minister André Mendonça’s order below:
“The claim, initially conceived as a jurisprudential construction, is of a constitutional nature, with the purpose of preserving the competence of the Federal Supreme Court, guaranteeing the authority of its decisions, as well as the observance of the statement of the Binding Precedent of the STF.
“In the present case, it is alleged that the defendant court did not comply with what was decided by this Supreme Court at the time of the judgment of ADPF No. the entire set of precepts of Law No. 5,250, of 1967, known as the Press Law.
“In the aforementioned judgment, the full freedom of the press was reiterated as a legal category prohibiting any type of censorship, as well as the imposition, on the Judiciary, of the duty to endow the fundamental rights of the press and information with effectiveness. Taken in a relationship of mutual causality with democracy, freedom of the press was considered ‘intangible heritage that corresponds to the most eloquent attestation of the political-cultural evolution of an entire people’.
“In the nature of the case file, the contested decision granted active suspensive effect to the appeal filed within the scope of criminal action No. 0734741-84.2022.8.07.0001, pending before the 4th Criminal Court of Brasília/DF, ‘to determine the immediate withdrawal of the news articles residing at the following URLs: (…), as well as to determine the immediate removal of these posts on the social networks Twitter and Instagram, in the profiles (…)’
“In this perfunctory judgment of appreciation of the factual conjuncture of evidence, the allegations of the complainant regarding the possible failure to comply with the understanding of this Supreme Court, regarding the prohibition of censorship and the protection of the right-duty to inform, are plausible.
“In similar cases, the Federal Supreme Court has systematically ruled in the sense that, after considering the amounts involved, it envisages the existence of the requirements that authorize the granting of an injunction.
“In this regard, it is worth mentioning an excerpt from the decision rendered by e. Minister Cármen Lúcia when the preliminary injunction was granted in Complaint No. 35.039/DF, which had the merits upheld and confirmed by the Second Panel.
“I also note, in the same sense and circumstance of appreciation of the case, the following decisions: Rcl 51.153-MC, Rel. min. Gilmar Mendes, DJe 01/10/2022; Rcl 50,255-MC, Rel. min. Edson Fachin, DJe 11/10/2021; Rcl 39,089-MC, Rel. min. Luiz Fux, DJe 03/13/2020; Rcl 41,850-MC, Rel. min. Alexandre de Moraes, DJe 07/01/2020; Rcl 22.328-MC, Rel. min. Roberto Barroso, DJe 11.26.2015; and Rcl 52,089-MC, Min.Rel. André Mendonça, DJe 02/25/2022.
“Therefore, I recognize, in the context of summary cognition, the occurrence of an apparent violation of what was decided by the Federal Supreme Court in ADPF nº 130/DF, as well as the presence of damages resulting from the effects of the claimed act within the scope of the fundamental right of freedom of the press and the right-duty to inform.
“Weighing the disputed values, I understand that, at the present procedural moment, public freedoms must prevail, both to inform and to express in its broadest sense (art. 5, IV and IX, c/c art. 220, of the Constitution of the Republic), which are independent of censorship or license.
“In the Democratic State of Law, Brazilians from all political-ideological spectrums must be guaranteed the broad exercise of freedom of expression. Thus, the restriction of this free exercise, under the modality of censorship, on any pretext or however good the intentions, especially if such restriction comes from the Judiciary, the ultimate protector of fundamental rights and guarantees, does not find shelter in the Republican Charter of 1988.
“In effect, the national legal system ensures other instruments and measures to facilitate the composition between the individual rights involved and the constitutional guarantees, without having to resort, prima facie, to the suppression of freedom of expression and of the press.
“In view of the foregoing, I grant the preliminary injunction to determine the immediate suspension of the effects of the contested decision, in case No. , as well as the dissemination of these materials on social networks, until the final judgment of this complaint.
“The beneficiary of the contested decision must be mentioned so that, if it wishes, to file a defense within the legal period (art. 989, III, CPC). If necessary, the complaining party is summoned to provide the address of the beneficiary of the contested act, under penalty of extinction of the deed and revocation of the preliminary injunction (arts. 319, II and 321, of the CPC).
“Information is requested from the defendant court (art. 989, I, CPC). Afterwards, the Public Prosecutor’s Office must be consulted on the case for its manifestation within the legal period (art. 991, of the CPC).
“Publish yourself.
“Brasilia, September 23, 2022.
“Minister ANDRÉ MENDONÇA”
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