The Supreme Court's constitutional oddities

Criminal Action 470 continues to challenge constitutional rights. During the trial, all passages from documents and testimonies proving the innocence of the three PT political prisoners in the crimes for which they were convicted were improperly excluded from the record. Furthermore, the right to a second instance of judgment was revoked, under the pretext that the evaluation phase of appeals, especially those seeking to overturn the decision, would fulfill the right guaranteed by the relevant codes. And then, when the opportunity arose, the fiercely biased Joaquim Barbosa, Gilmar Mendes, and Luiz Fux, accompanied by their usual wavering counterparts, almost prevented the appeals from being judged. This is not surprising in a panel that validates the thesis that prosecutors are not obligated to prove that the accused are accomplices through knowledge of, and possibly the instigators of, alleged crimes committed.

Under the presidency of another fiercely retiring judge, Carlos Ayres de Brito, the accused were required to prove that they had no knowledge of the crime, especially since they did not acknowledge that such an offense had occurred. As is obvious, this argument is logically unfounded, but it was cheerfully accepted, despite protests to the contrary, by the overwhelming majority of the Supreme Court. For this reason alone, and for those recorded sessions, they will be the object of scorn for eternity in the eyes of universal law.

It's always good to remember the extraordinary syllogism discovered in partnership by Ayres de Brito and Rosa Weber. Here is its statement: Masterminds of a crime hide all the evidence; there is no evidence against José Dirceu; therefore, José Dirceu was the mastermind of the crime. This gem, among many others, is also engraved for future centuries, along with the claim that it is a legitimate deduction from the theory of command responsibility.

Now we enter the chapter of serving the sentences. It was not a decision that ennobles jurisprudence to have the convicts brought to Brasília. Legal or not, it expressed a desire to savor the sentence of additional punishment. The date of November 15th will be remembered for this undeserved bravery, in combat against sick and previously lynched adversaries. As far as we know, Minister Joaquim Barbosa's biography records other episodes of similar bravery.

As happened during the trial sessions, it is even remarkable, if viewed from a malicious angle, the dexterity with which judges of undeniable and high legal competence apply surprisingly agile blows to the articles, paragraphs, and clauses of current legislation. Casuistic and extremely subtle distinctions are extracted from the definition of open, semi-open, and closed regimes, including considerations about the linearity or not of the benefits attributed to each regime, the nature of Newtonian time, and the paradox of rotating majorities.

The last two topics are as much about the rights of convicts as they are about the interpretive Pilates of judges. It is simply a matter of demonstrating the independence of judges in the face of, so to speak, powerful defendants. For, in general, I truly believe in the independence of the Supreme Federal Court, and precisely for that reason nothing will convince me that Criminal Action 470 does not constitute a tragic exceptional trial. Tragic for many of the convicted, tragic for the history of the Brazilian Judiciary.

But it didn't end there. Now the right to free expression is suffering what is certainly immoral harassment from judges and former judges. Where is the law that removes the right to expression, and even more so, the right to printed expression, from prisoners of any kind? This is a serious problem presented by the contemporary world, exceeding the limits of obsolete legislation. How can one prevent a prisoner from maintaining a website? There is no constitutional mention of this specific way of expressing an opinion. The right to free expression (and printing) of thought does not allow for qualifications.

Experts know that the idea of ​​entirely democratic countries is nonsense. England censors newspapers and books, France bans films, and the United States, with the so-called Patriot Act, allows the imprisonment of people without notification to the courts and the violation of correspondence. But these have a legal basis, an archaic or obtuse right, but they exist. Not in Brazil. The cases in which the expression of opinion is subject to penalties are constitutionally enshrined, and all of them are applied after the fact, never beforehand. Another uniquely Brazilian phenomenon might emerge: semi-open imprisonment served incommunicado.

Article published on the website Major Card