The crusade of the Court of Justice of São Paulo against criminal guaranteeism

Joachim Beuckelaer (1533–1575), Fish Market (Detail of salmon steaks), oil on Baltic oak, 1568.
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By ANDRÉ PIRES DE ANDRADE KEHDI*

At TJ-SP punitivism is exalted and guaranteeism censored

On April 26 of this year, Minister Rogério Schietti, of the Superior Court of Justice, wrote a brilliant article entitled “ADPF 635 and the transmutation of authoritarian practices” on the decision of the Federal Supreme Court in the so-called ADPF das Favelas, which dealt with the issue of police violence and established requirements for operations in order to reduce their lethality. In the text, he rightly called the decision of “the most important in the history of the Federal Supreme Court for the preservation of human rights” and stated that “The Judiciary has a decisive role in changing the culture of the state agencies that make up the criminal justice system”. It also wove considerations on the daily abuses of the police forces in the peripheries, especially with the murders and the infamous violations of home without a warrant, without the consent of the resident and without just cause, which selectively affect certain places (periphery), social groups (class D) and (black) people.

It is impossible to disagree with his opinion: we would not need international treaties, nor the Federal Constitution, nor ordinary legislation to conclude that the atrocities committed there by the public security forces would deserve another type of response from all actors in the justice system.

There is no way to require the Judiciary, however, to exercise this fundamental role of controlling police activity. whether the few judges who dare to do so are punished for it by their disciplinary bodies, in clear affront to its functional independence, mainly in the Court of Justice of São Paulo, which has been prodigal in examples of this type of censorship in recent years.

The first of them, which took place in 2016, was the punishment of judge Kenarik Boujikian, then second-degree substitute judge at the 7th Criminal Chamber of the TJ-SP, on the grounds that she would have violated the principle of collegiality and acted with a lack of caution by monocratically granting freedom to people who were provisionally imprisoned for beyond the time of sentence fixed in the sentence of first degree.[1]. At the CNJ judgment, which forcefully reversed the punishment, councilor João Otávio Noronha, minister of the STJ, stated that “TJ-SP acted badly. He didn't act well. And why didn't he act well? Because he finds a preposterous excuse to censure the judge’s meritorious decision in the end”. Counselor Gustavo Alkmin, in turn, asserted: “To punish the magistrate for his legal understanding is greater violence to his freedom and independence” (Disciplinary Review 0002474-75.2017.2.00.0000, j. 29/8/2017).

The second of them occurred in 2018, when the TJ-SP, even shortly after the aforementioned CNJ decision, applied censorship to judge Roberto Luiz Corcioli Filho on the ground that he thought “moved by ideological reasons, curiously linked to the idea of guarantee” — conviction that in February of this year 2021 was also reversed in the CNJ. In the vote, it was even stated that the TJ-SP is a court that refuses to apply the law and the precedents of the higher courts, so that, if that punishment were maintained, for consistency, disciplinary proceedings should also be instituted against all the court judges (RD 0004729-35.2019.2.00.0000, j. 23/2/2021).

It is also worth remembering that, even before the effective disciplinary punishment, since mid-2013 Judge Roberto Corcioli had been prohibited, without any support by law, from acting in criminal courts by the then TJ-SP Inspector, José Renato Nalini, request from prosecutors who complained that the magistrate “it let go a lot and hold little”.

Recently, less than two months after the decision of the CNJ acquitting Roberto Corcioli, once again the TJ-SP instituted disciplinary proceedings against the magistrate due to the jurisdictional content of his decision, considered “ideological” by the special body of that court, which accused him of “having prejudice against the police” (Disciplinary Administrative Procedure 107.362/2020). The target of the time was a judge who, at the end of 2020, relaxed the flagrant drug trafficking because he understood that the well-founded suspicion for personal search was absent, as required by article 244 of the CPP, the jurisprudencesuperior court ruling[2] and the Inter-American Court of Human Rights (case Fernandez Prieto vs Argentina). It is symbolic and also draws attention to the fact that the disciplinary representation was made by three parliamentarians from the Military Police.

In addition, one of the judges who, when voting for the opening of the disciplinary process, called the magistrate's decision teratological has been a professor of Criminal Procedural Law at the Barro Branco Military Police Academy for over 30 years and gained notoriety for order the pre-trial detention of an individual released on bail with first-degree bail and filed a Habeas Corpus requesting the revocation of the guarantee due to lack of financial conditions. When analyzing the write, the judge revoked the bail, but decreed the pre-trial detention (!), in decision (this one, yes, teratological) without absolutely any support in the legal system. In that case, however, not there were any disciplinary consequences, indicating that respect for functional independence and the concept of teratology appear to be selective in the flag court.

Although at first glance these may seem exceptional and isolated cases in a universe of more than two thousand judges, it is not difficult to imagine that they are more than enough to serve as an example and intimidate not only the judges being tried — who, even after being correctly acquitted by the CNJ, they will probably not be interested in running the risk of facing the hardships of a long disciplinary process —, but also all others who consider following a similar path, which ends up shaping, through fear, their way of making decisions (known as chill effect).

But it is not only through disciplinary means that punitivism is exalted and guaranteeism censored in the TJ-SP. There are several other practices that, in a less ostensible way, (de)form São Paulo judges. One of them is the commonplace aggressiveness with which absolutionary or liberty-granting decisions are reformed by the Court's Criminal Chambers, a way of indirectly coercing first-degree judges.[3]

In other cases of relaxation of imprisonment considered illegal, the decisions are not even subjected to the double degree of jurisdiction, as determined by the Federal Constitution and the Pact of San José de Costa Rica, as other judges of the first degree feel comfortable reforming decisions of colleagues who acted on duty, without new facts and invariably to impose preventive arrests.[4].

Another way to exalt punitivism and, obliquely, to discourage guaranteeism, is at least TJ-SP website news portal. A brief query shows that daily first or second degree criminal convictions are publicized. Acquittals, on the other hand, are quite rare.

O site search engine Returns 1.494 conviction results (term “condemns”), whereas only 70 of absolution (term “absolve”). It is obvious that, for every hundred convictions, only five acquittals are reported.

Since the beginning of 2016, there have been only nine reports of acquittals (terms “acquit”, “acquitted”, “acquittal”), as opposed to 168 convictions reported in the same period (term “convicts”). Of those nine dismissals of criminal actions, curiously, seven dealt with military police accused of homicides and massacres.[5]

A manual search was carried out for each of the 517 news published by the TJ-SP in 2021 (until 8/5), it appears that they were disclosed 57 criminal convictions.

On the other hand, it was published on the portal only a single piece of news regarding the acquittal. Guess what? They got it right! Ex-military policeman and civil guard acquitted the allegation of participation in slaughter.

If anything could be more explicit, it is the situation at the Dipo (Department of Police Inquiries), where all custody hearings in the capital are held and positions are filled by appointment, not by contest. The magistrate judge of this department is personally appointed by the magistrate general of Justice and has the power to choose all the other magistrates of the body, which, in addition to violating the principle of the natural judgeAllows select the finger who will define freedom or prison in all the flagrants of biggest city in the country. These choices, since the last change in management, have resulted in the increase from 52% to 73% in the rate of conversions to pre-trial detention.

The judges of the State Departments of Criminal Execution (Deecrims), responsible for all executions of sentences in a closed and semi-open regime in the state of São Paulo, are also chosen by the top of the TJ-SP, and not by competition.[6]. This functioning, absolutely contrary to the principle of the natural judge, was taken to the STF by the Attorney General's Office in ADI nº 5070, proposed in the distant year of 2013. Although the decision to be taken there has very important consequences for the hundreds of thousands of people deprived of liberty in the state that incarcerates the most in the country, the request for inclusion in the judgment agenda, made by the rapporteur in September 2018, continues to be unanswered by the successive presidents of the court so far.

The result of São Paulo's institutional policy speaks for itself: the acquittal for nullity of evidence produced by the police and the relaxation of arrests in flagrante delicto for the illegality of their actions these are almost leap-year events at TJ-SP, and the very rare and honorable exceptions that appear only confirm the rule.[7]

A quick search on Electronic Justice Gazette in the month of March 2021, only 11 decisions were published with the term “relaxo”, despite the official statistics of the São Paulo Public Security Secretariat registering the arrest of 9.550 people in the same period. These data are repeated with little variation in any month that is researched (January: four releases x 9.050 arrests; February: Dec x 9.108…).

The context presented above shows, paraphrasing Darcy Ribeiro, that the lack of control of police activity, disrespect for fundamental guarantees and mass incarceration, at least in São Paulo, do not seem to be a crisis, but rather a project. It is a project that will continue to be “successful” as long as the effective functional independence of the judiciary is not ensured, particularly vis-à-vis the very top of the courts. After all, there is no way to demand that the judiciary control police abuses if its own disciplinary bodies continue to intimidate judges who try to do so.

As well alerted by Zaffaroni, “it matters little what the constitutions and international human rights law provide, if the judges cannot apply their provisions, under penalty of being denounced and persecuted by the pressure of the media, by the collegiate bodies of the judicial structures themselves, by the politicians who take advantage of this to eliminate troublesome magistrates, to publicize or, simply, by their own colleagues committed to discrediting a possible competitor in a promotion or palace intrigues” (“The enemy in criminal law”. 2nd ed. Rio de Janeiro: ICC/Revan, 2007, p 80-81).

Minister Schietti is absolutely right in his article. But international treaties, the Federal Constitution, the law, the avant-garde doctrine, the precedents of the Inter-American Court of Human Rights or superior courts are of no use if judges are afraid to follow them. And in São Paulo they have serious reasons to fear. Unfortunately.

* André Pires de Andrade Kehdi is a criminal lawyer, former president of the Brazilian Institute of Criminal Sciences.

Originally published on the website of Legal Consultant Magazine [https://www.conjur.com.br/2021-mai-13/andre-kehdi-cruzada-tj-sp-garantismo-penal]

Notes


[1] A few days before the judgment of the case by the Special Body, I wrote an article on the subject. The title already says a lot: Court of Justice of SP has a history of persecution of magistrates who differ from the majority.

[2] In the STJ, among others: AgRg in the HC 530.167/SP, Report LAURITA VAZ, 6th T., dj and 11/03/2021 and HC 625.819/SC, Report NEFI CORDEIRO, 6th T., dj and 26 / 02 / 2021.

[3] See if here, for example, the case of the magistrate who relaxed arrest in flagrante delicto for violating a home without a warrant, without valid consent from the resident and without just cause and had his decision described as “outlandish and squinty” by the judge who reformed it, which he also accused the judge of first instance of interpreting the Federal Constitution in a “bewildered” way in order to transform the house into a “valhacouto” of crimes. The intimidating and dissuasive nature of the second instance decision is evident, especially considering that the decision of the first degree magistrate finds broad support in the jurisprudence of the STJ (in the 6th Panel, the leading case brilliantly reported by minº Schietti – HC 598.051/SP, dj and 15/03/2021; in the 5th Class, the HC 616.584/RS, Report RIBEIRO DANTAS, dj and 06/04/2021, among others).

[4] Example of this reprehensible practice here.

[5] Read about PM's acquittal from 2021, that of 2019, the four of 2018 (1, 2, 3 e 4) and that of 2016.

[6] I criticized this aberration in an article written at the time, also in Conjure.

[7] Search for key terms such as “nullity”, “police”, “illicit evidence”, “preliminary nullity”, “preliminary”, “personal search”, “house search”, “null”, “null”, “home invasion” , “violation of domicile” etc. and see the result

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