The resolution deals with requests made within processes already underway and attempts to close a door that has been increasingly used in the Supreme Court. Instead of presenting a new, separate action, which would be distributed by lottery or prevention among the ministers, lawyers or interested parties who were not even part of the original action began to make requests within processes that already exist and that already have a rapporteur. This way, they are able to direct cases to ministers who are more sympathetic to their arguments.
According to the Supreme Court's rules, rapporteurs must be chosen in two ways: a draw among ministers or by prevention, when the Court understands that new requests are related to a case that is already being processed in court. And it is prevention distribution that Minister Edson Fachin wants to improve with the new resolution.
According to the president of the STF, the measure seeks to avoid "possible distortions in the distribution of cases". It will work like this: requests submitted by third parties who do not act as a party to the original process will be screened by the Judiciary Secretariat and the presidency of the STF. If the analysis concludes that the request is sufficiently related to the original process, the rapporteur will be the same for both cases. If this relationship is not recognized, the petition will be transformed into a new, independent process and distributed to a new rapporteur by lottery.
The resolution published this Friday (2) is only valid for new petitions, presented from now on. In practice, the new rule takes away from the rapporteur himself the first word on a request that tries to reach him through another process.
"When a case enters the Supreme Court, no one chooses who will judge. It is distributed by lottery to each of the ministers. What has happened a lot over the last few weeks, especially this week? Lawyers have been creating devices to take the cases they want, which have an impact on the elections, directly to ministers who they would consider more sympathetic to their cause, circumventing this system of randomness and harming a very important process that upholds impartiality in the Supreme Court."
The change comes after a series of episodes that provoked conflicting decisions within the Supreme Court itself. In September, Minister André Mendonça ordered the removal of the director general of the Federal Police, Andrei Rodrigues. The following day, minister Flávio Dino overturned Mendonça's decision after Andrei's defense appealed in another process that was already under Dino's report, regarding parliamentary amendments. Faced with the impasse, minister Edson Fachin suspended the two injunctions and kept Andrei Rodrigues at the head of the PF.
Another case was related to the recent discussion about the withdrawal of publications associating the PL candidate for President, Flávio Bolsonaro, with an alleged movement to remove Our Lady of Aparecida's title of patron saint of Brazil. At the Superior Electoral Court, André Mendonça ordered the publications to be removed. The case reached the STF in another action, and Flávio Dino overturned Mendonça's decision. Afterwards, Flávio Bolsonaro appealed in a case reported by Luiz Fux. He suspended Dino's decision and resumed the ban determined by Mendonça.
The most recent example took place this Thursday (1st), with the Solidariedade party's request to minister Gilmar Mendes to determine the participation of the Missão candidate, Renan Santos, in the TV Globo debate. The request was made within another unconnected action, which was already with Gilmar. According to the rules published this Friday (2), requests like this would first have to go through the new filter.
FGV law professor Luisa Ferreira states that the war of injunctions brings distrust among the population in the justice system, and that the measure announced this Friday (2) is only necessary because ministers have been failing to comply with the rules for distributing cases:
"Decisions like these make people disbelieve in the Law, in the idea of impartiality, that people no longer trust any decision and, worse, that people feel legitimized to disregard judicial decisions. Because, if you don't like the decision, all you need to do is find another judge, another magistrate, another judge who will probably be sympathetic to your cause for the decision to be taken. And that's why this resolution is very welcome, it's important for the justice system, but it's It is important to say: it would not need to be used if, in fact, the judges, ministers and judges were complying with the process distribution rules".
