Supreme Court confirms the prerogative of Public Defenders' Offices to request documents from authorities.

Conjur - The Public Defender's Office's prerogative to request documents from authorities is upheld. The Supreme Federal Court formed a majority in the Court's Virtual Plenary Session to confirm the defense attorneys' power to request documents. Several lawsuits filed by the Attorney General's Office are currently under consideration, arguing that the prerogative creates an imbalance, since private attorneys generally do not have the same power, a claim that was rejected in the trial.

In the main action, ADI 6.852, which combined all those presented by the Attorney General's Office, the rapporteur, Minister Edson Fachin, defended the prerogatives of the public defenders' offices. "Recognizing the role of the Public Defender's Office as a right that corroborates the exercise of rights is to recognize its importance for a democratic constitutional system in which all people, especially those who are marginalized in society, can enjoy the catalog of rights and freedoms provided for in the Federal Constitution," he said.

The minister also dismissed the argument put forward by the Attorney General's Office. "Having outlined the role assigned to the Public Defender's Office by the Constitution, it is evident that it is not a category equivalent to the legal profession, whether public or private, and is, in reality, closer to the institutional design attributed to the Public Prosecutor's Office itself. Constitutional Amendment 80/2014 itself highlighted the distinction between the Public Defender's Office and the legal profession by establishing different sections of the constitutional text for each of these essential functions of justice," he wrote.

And he went on to say, "The functions performed by the public defender and the lawyer are not the same, even though in certain situations they may overlap. The public defender is not the same as the court-appointed lawyer, is not remunerated like the latter, and is not registered with the Brazilian Bar Association. Furthermore, their actions are subject to the dictates of Article 134 of the Federal Constitution and to the institution they belong to, not being guided exclusively by the personal interest of the client, as the lawyer does," he emphasized.

The president of the National Association of Public Defenders (Anadep), Rivana Ricarte, He commented on the decision. "The possible removal of this instrument would be a setback for the constitutional role of the Public Defender's Office and the proper provision of the fundamental right to comprehensive legal assistance to the underprivileged and vulnerable. Furthermore, this would increase the number of preparatory actions, causing a greater burden on the Judiciary," he explained.

Source
The Virtual Plenary's ruling stems from a series of lawsuits filed by Attorney General Augusto Aras. Last year, 22 direct unconstitutionality lawsuits were filed with the Supreme Federal Court (STF) against provisions of state laws that regulate the Public Defender's Office.

In ADI 6.852, filed on May 20 and reported by Minister Edson Fachin, Aras questions Federal Complementary Law 80/1994, which organizes the Public Defender's Offices of the Union, the Federal District and the Territories and grants public defenders the power to request certificates, examinations, expert reports, inspections, diligences, processes, documents, information, clarifications and other measures necessary for their activities from authorities and public agents.

According to the attorney general, several state laws have reproduced this provision. However, in doing so, they have granted public defenders a power that private attorneys generally do not possess: the power to order authorities and agents of any public agency to issue documents, processes, expert reports, and inspections.

Aras argues that this prerogative removes certain acts from judicial review, which contradicts the principle of the inalienability of jurisdiction. "Furthermore, the rules unbalance the procedural relationship, particularly in the production of evidence, by granting excessive powers to only one of the parties, which offends the principle of equality, from which the precept of parity of arms derives," he argues.

Subscribe to 247, Support via Pix, Subscribe to TV 247, in the channel Cuts 247 and watch: