Brazil’s Supreme Court Confirms Top Crime Boss’ Arrest Order by Nine Votes to One

RIO DE JANEIRO, BRAZIL – By nine votes to one, the Federal Supreme Court (STF) yesterday upheld the decision by Chief Justice Luiz Fux that reinstated the arrest order for drug trafficker André Oliveira Macedo, a.k.a. André do Rap.

He is indicted for international drug trafficking and for being one of the leaders of a criminal faction that operates inside and outside Brazilian prisons. André do Rap has been on the run since last week.

The Court ratified Fux’s decision, taken on Saturday, October 10th, that overturned a writ of habeas corpus granted by Justice Marco Aurélio, the rapporteur of the case, granting release to the trafficker. The subsequent decision by Fux was triggered by an appeal filed by the Prosecutor General’s Office (PGR).

In Wednesday’s session, the first day of the hearing, six Justices formed a majority of votes to uphold the arrest. Justices Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Rosa Weber, and Dias Toffoli supported the Presiding Justice’s decision overruling Justice Marco Aurélio.

In yesterday’s sitting, these votes were supplemented by the those of Justices Cármen Lúcia, Ricardo Lewandowski, and Gilmar Mendes.

The only opposing vote was cast by Marco Aurélio, who upheld his opinion favoring the trafficker’s release. In justifying the release, the Justice again argued that pre-trial detention should be reviewed every 90 days, according to the Code of Criminal Procedure (CPP).

Thus, if the deadline is not met by the courts, the Prosecutor’s Office, and the police, the maintenance of detention becomes illegal because it exceeds the time established by law.

“I remain confident of the preliminary injunction I have enforced. If anyone failed, it was not me. I can not be made a scapegoat, considering a failed proceeding by the original judge, a failed proceeding by the Prosecutor’s Office, or a failed proceeding by the police itself. Unless I were to establish a duty criterion,” he said.

Last Saturday, when Fux reinstated the arrest, André do Rap, who had been imprisoned since September last year, had already left the Presidente Venceslau penitentiary (São Paulo).

The São Paulo Civil Police conducted an operation last weekend in an attempt to recapture the trafficker, but had no success. According to investigators, André do Rap may have fled to Paraguay. His name has now b een included in Interpol’s most-wanted list.

“Festival of mistakes, misconceptions, and omissions”

Justice Gilmar Mendes strongly criticized the Federal Prosecutor’s Office, the lower court charged with reviewing André do Rap’s pre-trial detention, and the STF itself, when on Thursday he voted to return the PCC leader to prison.

“It is a festival of mistakes, misconceptions, and omissions,” noted Gilmar Mendes in his opinion justifying his vote. “The escape of a highly dangerous individual was only possible thanks to a convergence of shortcomings in the inertia of the Federal Prosecutor’s Office coupled with judicial mistakes and a patent lack of public spirit in the actions of some participants in this process,” he added.

In his vote, the justice argued that it was the lower court judges’ duty to ensure the supervision of the contemporaneity of pre-trial detentions they determined. In the case of André do Rap, the lower court magistrate missed the 90-day deadline provided for in Article 316 of the Code of Criminal Procedure to reassess the need for continued detention. The ‘expiration’ of the arrest order was used by Justice Marco Aurélio Mello to authorize the drug trafficker’s release.

Gilmar Mendes then openly criticized the Prosecutor General’s Office (PGR) for ‘inertia’ faced with his decision. “With all due respect to the actions of the Prosecutor General’s Office, it is very embarrassing that the PGR has been inert in submitting any imputation in the HC [habeas corpus] records between Tuesday and late Friday. Only on Saturday, October 10th, 2020, when the release order had already been complied with, did the PGR evaluate the suspension of the injunction under review,” he observed.

The justice also spared no criticism of the Supreme Court itself and drew attention to an alleged mistake in the distribution of the habeas corpus petition filed by the trafficker’s attorney. The appeal was sent to Marco Aurélio, although Justice Rosa Weber had been appointed rapporteur for the cases related to Operation Oversea, which arrested André do Rap.

While still criticizing, Gilmar Mendes reprimanded those trying to blame the recently amended Article 316 of the CPP for the trafficker’s release and spoke out against the need to redesign criminal law.

Along the same lines as his peers, Ricardo Lewandowski and Cármen Lucia, who preceded him in the vote, Gilmar Mendes also expressed concern over the possibility that the Supreme Court Chief Justice might overturn monocratic (individual) decisions of other Court justices.

Despite the caveat, Gilmar Mendes said he understood the ‘situation of extreme urgency’ that led Fux to overrule his colleague’s decision. “There is no doubt that this is one of the biggest criminals in our country, who heads one of the most powerful criminal organizations in Latin America. Past events have clearly demonstrated the very high risk of his escape. No constitutional interpretation, in my opinion, would authorize the granting of an injunction under the terms pronounced in the habeas corpus,” the Justice pointed out when concluding his vote.

Source: Agência Brasil, Estadão Conteúdo