The Federal Supreme Court (STF) created this Friday (2) new rules for the distribution of requests presented in processes that are already underway at the Court.
The change creates a control step to prevent new demands from being automatically linked to a process and, therefore, falling into the hands of a specific rapporteur.
The rule was published by the Presidency of the STF.
According to the Court, the objective is to reinforce the distribution of cases by lottery among ministers and the so-called natural judge principle, according to which the magistrate responsible for judging a case cannot be chosen in advance.
In practice, certain requests that are presented within existing processes will undergo analysis before reaching the rapporteur.
It will be necessary to check whether the new request is, in fact, sufficiently related to the original action to remain linked to it.
If this relationship is not recognized, the petition will be transformed into an independent process.
In this case, it will be distributed among the ministers by lottery or by prevention, when the court rules determine that a magistrate who is already analyzing a related issue should receive the case.
Which orders pass through the new filter
The new rule covers, among other cases, petitions presented by third parties, that is, people or entities that are not parties to that process, lawyers for the parties or members of the Public Prosecutor's Office who act in the action.
Petitions that:
question the act of an authority or judicial body that is not part of the process;
try to extend a decision to people, acts or facts that are not the subject of the original action;
present requests against anyone who is not a party to the process.
Who decides whether the request remains with the same rapporteur
Until now, one of the most technical points of distribution was defining when two requests are sufficiently linked to be analyzed together.
With the resolution, the link by connection or continence will depend on formal validation. The analysis will be carried out by the Initial Processing coordinator and the Judiciary Secretary and will also have to go through the Presidency of the STF.
In simple terms, there is connection when processes share the same request or basis. Continence occurs when an action has a broader object and encompasses that of another.
If the court concludes that the new request is not directly related to the indicated process, it will open an independent action. As a result, the case may go to another minister.
What doesn't change
The resolution does not change the normal manifestations of those who are already parties to the process nor the presentation of new documents.
Also left out, as a rule, are statements from the Attorney General's Office (PGR), internal appeals and requests to join as amicus curiae, the so-called “friend of the Court”.
In the latter case, however, the new procedure may be applied if the amicus curiae request fits into the situations foreseen by the resolution.
Processes that are processed at levels 3 and 4 of secrecy, which follow specific regulations, are also excluded.
The new rules came into force this Friday and are only valid for petitions filed after the publication of the resolution.
'War of injunctions'
The change comes after the STF faced, throughout September, a sequence of conflicting individual decisions between members of the Court itself, an episode that came to be called the “war of injunctions”.
In one of the cases, André Mendonça ordered the removal of the director general of the Federal Police, Andrei Rodrigues, and the corporation's director of Intelligence, Leandro Almada.
The following day, Flávio Dino, when analyzing a request presented in another case under his supervision, ordered the reinstatement of both.
The president of the STF, Edson Fachin, ended up suspending the decisions of the two ministers and pointed out the existence of conflicts and procedural overlaps.
Weeks later, there was a new sequence of conflicting decisions: Dino suspended a decision by Mendonça, made at the TSE, to remove publications related to the discussion about Our Lady of Aparecida.
The following day, Luiz Fux suspended Dino's decision and reestablished Mendonça's previous order until a plenary decision.
