ORIGINAL ARTICLE
BARBOSA, André Luciano [1], MATSUSHITA, Thiago Lopes [2]
BARBOSA, André Luciano. MATSUSHITA, Thiago Lopes. Displacement of jurisdiction incident – from dogmatics to the jurisprudence of the superior court of justice: the process at the service of Human Rights. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 05, Vol. 05, pp. 18-35. August 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/jurisprudence
ABSTRACT
More than 15 years have passed since the normative introduction of the Incident of Displacement of Competence (IDC) in the Brazilian legal system, through the approval of the Proposed Constitutional Amendment (PEC) No. 45/04. This article will present what happened in this temporal interregnum with the Institute under this, as well as to respond to what can be improved in the procedural and humanitarian aspect, for the purpose of expanding its effects. The time of validity of the Institute now allows, with the necessary clarity, to visualize the positive and negative impacts of IDC on the practical reality of the Brazilian Judiciary. This article has the scope of working the IDC broadly, that is, from its constitutional and conventional bases, through the national doctrine, which better takes care of the theme, and then by the updated jurisprudence of the Superior Court of Justice (STJ). The fundamental methodology used in the constructions and reflections of this article is the bibliographic and explanatory methodology, with extensive research in books in the specialized legal area, without abandoning the inductive and deductive methods, based on the jurisprudence of concrete cases that will be analyzed. With objectivity and critical analysis, the reader, in the end, will assimilate the most important and updated about the IDC in Brazil, without prejudice to innovative proposals. In this sense, important conclusions are reached, such as the need to expand the legitimized for their purpose, as well as the expansion of their application to civil cases and also the setting of better goals for the conclusions of criminal and civil investigations.
Keywords: Incident of Displacement of Competence, Human Rights, Law, Doctrine, Jurisprudence.
1. INTRODUCTION
Constitutional Amendment (EC) No. 45, published on December 31, 2004, popularly labeled by media vehicles as the amendment of the “reform of the judiciary”, inaugurated in the legal system the so-called Incident of Displacement of Competence (IDC), in this wake, included §5 and item V-A to Art. 109 CF/88. It is important to note that the federalization of human rights violations was already foreseen as a goal of the National Human Rights Program since 1996. (BRAZIL, 1988)
From the outset, it is pointed out that there are direct actions of unconstitutionality pending judgment aiming at the declaration of unconstitutionality of the incident of displacement of jurisdiction (ADI 3493/DF and ADI 3486/DF), both filed in 2005 and conclusions to the Rapporteur Dias Toffoli, since March 2017, with a trial date scheduled for 06/08/21. The main arguments of these actions are the violation of the principle of the natural judge, the breaking of the federative pact and the violation of due process. The demands have a remote possibility of success, even because the STJ, in the first IDC (IDC no. 1 – Dorothy Stang), expressly stated that: “Apparent incompatibility of the IDC, created by EC no. 45/04, with any other constitutional principle or with the procedural system in force to be resolved applying the principles of proportionality and reasonableness”. It is perceived, therefore, that the Superior Court, even if it is the Supreme Court, understood by the constitutionality of the incident (STJ, 2005).
This study seeks to explore what has happened with the IDC since its implementation in the Brazilian legal system, objectively responding to what can be improved in its procedural and humanitarian aspect, for the purpose of expanding its practical effects.
I cede that, in these more than 15 years of validity of the IDC, today it is possible, with the necessary maturity, to make reflections on this relevant procedural instrument at the service of human rights, in the light of its constitutional, conventional bases and what the jurisprudence of the STJ produced on the subject, also bringing critical and evolutionary weightings.
2. CONSTITUTIONAL, CONVENTIONAL AND COMPETENCE FOR THE JUDGMENT OF THE INCIDENT OF DISPLACEMENT OF COMPETENCE (IDC)
The IDC was included by EC No. 45/04 in §5 of Art. 109 of the CF/88[3], this device that serves as a constitutional cradle. The incident is known and tried within the Superior Court of Justice (Art. 109, §5, of CF/88) and, once the claim that led to the incident is upheld, it must be moved to the First Instance of the Federal Court (Art. 109, V-A, CF/88[4]). It’s art. 1st, sole paragraph, of Resolution No. 6, of 16/05/2005 of the STJ, that the jurisdiction to judge the incident is the Third Section of the STJ, which is composed of Ministers of the 5th and 6th classes of the Court. The only person legitimized for this purpose is the Attorney General of Justice, which is therefore an exclusive legitimation. It should also be emphasized that the incident can be carried out both in the investigation phase and during the process, of civil or criminal causes. (BRASIL, 1988; BRASIL, 2005)
The conventional foundation is in Art. 28 of the American Convention on Human Rights (ACHR)[5], which was incorporated by Brazil by Decree No. 678 of November 6, 1992. The article brings in its bulge the so-called federal clause. The Federal Government, together with the States, municipality and the Federal District, is composed of the Federative Republic of Brazil. The Union is a legal entity under domestic public law, but it also represents the Federative Republic of Brazil in the external sphere. The Federal Government represents the Brazilian Federal State in acts of international law, since these acts are the responsibility of the President of the Republic (Art. 21, I, CF/88). The responsibilities agreed at the international level, such as those assumed in the CADH are ultimately the responsibility of the Federative Republic of Brazil, represented by the Union exercised by its president. (BRASIL, 1988)
This time, as much as there are internal divisions of competence in the Federated States (horizontal, vertical, material, legislative, etc.), before the international bodies, the Union is responsible. In this scenario, the federal clause points out that the responsibilities assumed in the treaties will be required from the Union (Federative Republic of Brazil) and not from the other Component Entities of the Federated State, even if they are the competence to safeguard the law provided for in the treaty, since they do not have a personality of international public law.
Piovesan (2013, p. 395), in his book “Direitos Humanos e o Direito Constitucional Internacional”, discusses the responsibility of the Union, in verbis:
According to international law, the responsibility for human rights violations is always the Union,which has international legal personality. In that regard, the federative principles and the separation of powers cannot be invoked to remove the Union’s liability in relation to the breach of obligations contracted at the international level.
There is a relevant weighting here based on competence. Most cases of violation of human rights occur within the federal state, since the jurisdiction of the State Court is much broader, but paradoxically, it is the Union that is responsible internationally. Therefore, there is a paradox between the one who most does not comply (States) and the one who is legally held (Federal).
At this point, the dogmatics of the matter does not give room for further legal interpretations. The constitutional foundation is the basis (Art. 109, V-A and §5, cf/88), conventional (Art. 28 of the ACHR), the jurisdiction of the Supreme Court, and, if well founded, the displacement of the case or investigation to the Federal Court of First Instance.
3. LEGITIMACY FOR THE PURPOSE OF THE INCIDENT OF DISPLACEMENT OF COMPETENCE
The Federal Constitution expressly points out as exclusive legitimized for the purpose of the incident of displacement of jurisdiction the Attorney General of the Republic. There are relevant considerations here that deserve deep discussion, since this exclusive legitimacy is the cause and effect of numerous practical consequences. It is not known that the Attorney General of the Republic is the head of the Federal Public Prosecutor’s Office, which is composed of the Federal Public Prosecutor’s Office, Labor, Military and the Federal District and Territories (Art. 128, I and §1, CF/88), which is why it represents the political and legal interests of this class. It happens that, limiting the possibility of the incident being exclusively filed by the Attorney General is to attack the basic premise of plurality of legitimacy adopted by the Federal Constitution, including, in large procedural demands such as ADI (Direct Action of Unconstitutionality), ADC (Declaratory Action of Constitutionality), ADO (Direct Action of Unconstitutionality by Omission) and ADPF (Charge of Non-compliance with Fundamental Precept) [6] (BRASIL, 1988). Not for any other reason, art has it. 129, §1, of the CF/88 that the legitimation of the Public Prosecutor’s Office for the civil actions provided for in Art. 129 does not prevent that of third parties, in the same cases, in accordance with the provisions of the Constitution and the law.
It is important to emphasize that protecting human rights is the task of all the powers constituted by the Republic and not only of the Public Prosecutor’s Office of the Union (MPU). The Head of the MPU often remains involved in constant political issues that make him not expend the energy necessary for such an important task.
The Public Defender’s Office (DPU), which represents the interests of the vulnerable population and the Federal Attorney General’s Office (AGU), which represents the interests of the Federal Government, should, of course, be included in this list. The presence of the legitimacy of the Ombudsman’s Office stems from the fact that it is the only one expressly in charge of the constituent power derived (EC no. 80/14) from the promotion of Human Rights (Art. 134, caput, CF/88)[7]. The main Institution of the Republic charged with protecting vulnerable people, promoting human rights, is not authorized to promote the IDC. There is no legal, ethical or moral sense to do so. For no other reason, PEC 31/17[8] (BRASIL, 2017) aims to correct a mistake by granting legitimacy to the Federal Public Defender the possibility of managing the IDC.
Obviously, by symmetry, State agencies should be elevated to the condition of legitimized for the purpose of the incident. The reason is very simple. Not only cases of national repercussion and chosen by the mass media should be answered with Cartesian precision by the Judiciary, but also, and no less important, those of regional or local repercussion. In this context, it is advocated that at least the General Public Defenders of the States, plus the Federal District, the Attorneys General of Justice, who represent the interests of the State Public Prosecutors and the Heads of Attorneygeneral’s Office of the States, should be on the list of legitimized.
There are several violations of human rights at the regional and local level that end up being relegated by the state authorities, which cannot be consistent, the rights of women, the elderly, children, indigenous people, among others, are commonly disrespected by regional and local authorities. The increase in the number of legitimized would authorize greater control of the serious violations of human rights that occurred in Brazil, since it would bring greater legal inquiry into these violations. Instead of just a legitimate one, one would have a larger and vigilant quantitative body, resulting in a quantitative increase in IDCs. From this perspective, it would be of paramount importance that organs representing civil society were also legitimized for this project, as a good example, would be the Brazilian Federal and State Bar Association. The incident has an important control function of the investigative and judicial bodies, so the significant increase in legitimized ones would cause an important reflection on the impasses that occurred at the regional and local levels.
Mazzuoli (2015, p. 232), in his book “Curso de Direitos Humanos”, deals with the dual purpose of federalization of serious human rights violations, in litteris:
a) a preventive, to induce the State Judiciary to ensure more effectively compliance with the Human Rights Treaties to which Brazil is a party, taking measures aimed at preventing impunity at the risk of displacement of jurisdiction; and
b) a repressive, to demonstrate the possible ineffectiveness of state bodies in dealing with serious issues of human rights violations. On the other hand, federalization redoubles the responsibility of the Federal Court for the pursuit and effective combat of impunity for such violations of H Rights
There is no objective impasse of a relevant State Agency or even representative of civil society, verifying flagrant attack on human rights at regional and local level, postulating before the STJ, resources and original demands (e.g., special appeal, HCs, MSs etc.). are constantly proposed before the STJ by State Agencies, without this justifying, in a way, any impediment of derived or originating action.
The Piovesan Doctrine (2013, p. 399), in his book “Direitos Humanos e o Direito Constitucional Internacional”, also reveals his dissatisfaction with the limited legitimacy, opportune to the transcription:
Moreover, the amendment could have provided for other legitimized for the incident of displacement (such as the Council for the Defense of the Rights of the Human Person) and not have chosen to focus such legitimacy exclusively on the Attorney General of the Republic. It is rigorous to democratize access to the request for displacement and other relevant social actors.
Emphasizing that the only legitimized expressed in the constitutional text is the Attorney General of the Republic who, to date handled around 12 incidents, now passes to the analysis of aspects of material competence.
4. IDC MATERIAL COMPETENCE: WHAT ARE THE HUMAN RIGHTS TREATIES THAT BRAZIL HAS ADHERED TO?
The material competence informs the basis of material law authorising the purpose of the IDC. In other words, what rights violated would authorize the management of the IDC before the STJ.
Jurisdiction is traditionally regarded as the duty-to-power of saying the right in a given territory. Thus, a judge of the State of São Paulo has jurisdiction throughout Brazil, but, of course, does not have it to judge all cases in Brazil or even São Paulo, which makes the concept of jurisdiction emerge. Jurisdiction, in turn, is the limit, the measure of jurisdiction in the present case. The IDC aims to federalize serious acts against human rights, noting, it is not only crimes, there is the possibility of displacement also in the civil sphere, ensuring the protection of human rights provided for in international treaties, which Brazil is a signatory and, consequently, has committed itself to safeguarding, protecting, protecting and ensuring (PIOVESAN, 2013).
The IDC expressly relaxes the principle of the natural judge enshrined in Art. 5th, LIII, CF/88[9]. It should be emphasized that several procedural institutes in force in Brazil, such as the connection (Art. 55 cpc), continence (Art. 56 of the CPC), deaphore (Art. 427 of the CPP), prerogative of function (summary 704 of the STF), among others, also militate in this sense, with the scope of equalizing procedural impasses, giving greater rationality to the legal system. It is pointed out, only, that the IDC does not essentially bring in its bulge the rationality of the procedural system (procedural economy and instrumentality, avoiding the production of contradictory decisions, etc.), but rather the idea of justice of the system, since it aims to achieve an effective judicial response to those who suffered serious violation of some fundamental human right.
The constitutional provision expressly establishes that the IDC can be established to protect Human Rights Treaties of which Brazil is a part. Therefore, one must answer: which Human Rights Treaties is Brazil a signatory? Below is the list of declarations and treaties, plus those that Brazil ratified with EC status (Art. 5th, §3, CF/88), in verbis:
I- Human Rights Statements approved by Brazil:
a) Global System: Universal Declaration of Human Rights – 1948; Declaration of the Right to Development – 1986; Vienna Declaration and Programme of Action -1993; and Beijing Declaration – 1995.
b) Inter-American Regional System: American Declaration of the Rights and Duties of Man – 1948.
II- International Treaties for the Protection of Human Rights ratified by Brazil:
a) Global System: Precepts of the Charter of the United Nations – 1945; Convention against Genocide – 1949; Convention on the Status of Refugees – 1951; Protocol on the Status of Refugees – 1966; International Covenant on Civil and Political Rights – 1966; International Covenant on Economic, Social and Cultural Rights – 1966; Convention on the Elimination of All Forms of Racial Discrimination – 1968; Convention on the Elimination of All Forms of Discrimination against Women – 1984; Convention against Torture and other Cruel, Ineffective or Degrading Treatment or Punishment 1984; and Convention on the Rights of the Child – 1989
b) Inter-American Regional System: American Convention on Human Rights – 1969; Inter-American Convention to Prevent and Punish Torture – 1985; and Inter-American Convention to Prevent, Punish and Eradicate Violence against Women – 1994
III – Treaties incorporated by Brazil with constitutional amendment status (Art. 5th, §3, CF/88) :
International Convention on the Rights of Persons with Disabilities and its Optional Protocol – 2007; and Marrakesh Treaty to Facilitate Access to Published Works for Blind, Visually Impaired or Other Difficulties in Accessing Printed Text – 2013
The simple listing of the International Human Rights Treaties to which Brazil has adhered leads to the forctive conclusion that it is impossible for the Attorney General, the only constitutional legitimized, to carry out effective protection and control of what occurs throughout the country, from the investigative phase to the satisfactory, with regard to these Material Rights. As already mentioned, the extension of the list of legitimized would bring greater possibility that the human rights injured were, in fact, protected, protected and guaranteed by the Federal System of Justice.
The amount of material rights guaranteed by the International Human Rights Treaties to which Brazil has committed itself (right: of Women, Children, Inmate, etc.). are very far from being concretely protected by the Brazilian legal system. It is important to emphasize, once again, that the treaties take care of various topics, not only criminal, that need real protection of the Brazilian institutions constituted.
Ramos’s lessons (2014, p. 73), in his book “Teoria Geral dos Direitos Humanos na Ordem Internacional”: “International Human Rights Law consists of the set of rights and faculties that guarantees the dignity of the human being and benefits from institutionalized international guarantees”. In sum, international treaties bring in their bulge principles and norms that regulate international cooperation with the scope of promoting human rights and internationally recognized basic freedoms.
5. CLASH BETWEEN FEDERAL COURT AND STATE JUSTICE
It is not possible to make some considerations, although brief, in this article, which has as main scope to take care of the intricacies of the IDC in its completeness, the controversy verified between the Federal and State Courts, during and after the IDC ordeal.
The ADIs (3493 and 3486) filed respectively by the ANAMAGES (National Association of State Magistrates) and association of Brazilian Magistrates – AMB, and in the latter together also with ANAMAGES, to some extent, bring this discomfort among the Justices brought to effect by the constitutionalization of the incident. There is a historical “battle of egos” between the Federal and State Courts in Brazil, not only with regard to procedural and material competence, but also salaries, budgets, structure, etc. Would the State Justice, then, be unable, under certain circumstances, to give an effective response to the human rights harmed? Why would the IDC justify itself? Apparently, in more than one situation, this actually occurred.
As soon as the EC no. 45/04 was promulgated, much debate was debated about the low effectiveness of the State Court to solve major human rights clashes fought in the most distant Regions of Brazil. This study does not aim to discuss existing political or institutional issues between these two Brazilian Courts. There is a historical rivalry between the State and Federal Courts related to salaries, jurisdiction, financial autonomy, administrative, etc. Uncontroversial, in the dynamics of the facts, is that the competence of the State Court is much broader than that of the Federal Court, allied to this, undeniable that the minor Comarcas suffer strong influence of local leaders, whether political, social or economic, which often prevents the regular investigation, judgment and satisfaction of the executive title won. In the end, what you see is a real situation of injustice. The IDC was created precisely to try to minimize this historical dysfunction, to reduce blatant injustices, reasons that overlap with the functional, moral, personal, organizational interests of a certain corporate class.
From a pragmatic approach, the Piovesan Doctrine (2013 p. 397), in its Human Rights and International Constitutional Law, faces the theme:
Through the federalization of human rights violations, a system of healthy institutional competition is created to combat impunity. On the one hand, federalization encourages the firm action of the State, at the risk of the displacement of competences. That is, if local institutions are flawed, ineffective or omitted for the protection of human rights, it will be possible to avail themselves of federal bodies. On the other hand, federalization increases the responsibility of federal agencies to effectively combat impunity for serious human rights violations. The impact will be the strengthening of local and federal institutions. […] The primary responsibility for human rights is the State, while the subsidiary responsibility becomes the Union’s.
The vision is not so optimistic, especially the way the institute was designed and its practice more than 15 years after the term, anyway, is the record of the best Doctrine and the joint and renewed hope of better days.
Faced with the issue, it is now the study of the relevant procedural issues.
6. IDC PROCEDURAL ISSUES
At this point, procedural details of the IDC will be dealt with that are noteworthy. The reflections below are the fruit of the Decisions of the STJ. This research through the IDCs filed in the STJ found requests for early guardianship (or injunction) for the immediate displacement of jurisdiction (IDC No. 5/PE). The request for anticipation of the effects of the guardianship, in the view, is possible, fulfilled the legal requirements for this, in the IDC mentioned the application was not accepted.
As already pointed out, the jurisdiction to judge the incident is the Third Section of the STJ, which is composed of Ministers of the 5th and 6th classes of the Court (Art. 1st, single paragraph, of Resolution No. 6, of 16/05/2005 of the STJ). In total there are ten ministers who participate in the vote, and the president only votes in the event of a tie. There is the possibility of oral support, for fifteen minutes, after the rapporteurship begins the vote in descending order of seniority. In addition, there is the possibility of views, which suspends the trial, being the deadline for return of 60 days, from the availability of the file, extendable for another 30 days, upon application formulated to the collegiate (BRASIL, 2005). The deadlines are suspended during the holidays or recess of the Court (Art. 162 and 163 of the Internal Rules of the STJ).
It should also be noted that the STJ has admitted the figure of the “amicus curiae” (friend of the court or auxiliary of the court) in the incident, which translates greater democratization to the procedural procedure of the institute, conferring the possibility of hearing of individuals or legal entities that can contribute to a better solution of the controversy (IDC no. 9, 24, among others). Just a curiosity, in IDC no. 24, which deals with the case Marielle Franco and Anderson Gomes, the rapporteur gave deadline for family members and accused to speak on the request for incident.
Finally, it should be reported that the Attorney General is not bound by his initial manifestation in the incident. Thus, despite having proposed the IDC, as exclusive legitimized, if during the course of the incident it understands that it is the case of reviewing its positioning, exararando opinion in the opposite direction, as occurred in IDC no. 3, there will be no procedural incongruity or technical autophagy. The statement in an opinion for or by way of withdrawal by the PGR does not bind the judicial decision of the competent body, and there is no talk of lack of interest in acting supervening the propositura, since the demand, is objective in nature.
The achievement has regular procedure before the classes of the STJ, having been admitted the opposition of declaration embargoes (EDcl) (IDC no. 5/PE – EDcl 2014/0101401-7) after the trial. There is no news of the admissibility of other appeals, with the only reason for the possibility of regimental injury (AgRg) of the monocratic decisions of the rapporteur drawn or substitute (IDC No. 5/PE – AgRg 2014/010140-7) and extraordinary disdain for the STF.
O Art. 2nd of Resolution 6, of 16/02/2005, the STJ expressly records that the payment of costs in IDC cases is overbooked, until the court deliberates on the subject. There is no news of any deliberation regarding the costs, which leads to the forcous conclusion that there is no recoil in this title, not least because the demand is managed by the PGR that is exempt from costs (Art. 4, III, of Law No. 9,289/96). There’s no need for power of attorney either. The impasse of costs and power of attorney would take on another apex with the widening of the list of legitimized, which has not occurred so far. (BRASIL, 1996)
There is no rule specifically regulating the incident in question, which is why a systematic interpretation of the procedural institutes that can feed the IDC is very important.
Below, now, incidents in kind, working the requirements developed by the jurisprudence of the STJ.
7. ANALYSIS OF CASES OF IDCS AND ADMISSIBILITY REQUIREMENTS ESTABLISHED BY JURISPRUDENCE
Ramos (2014, p. 34), brings in his book “Teoria Geral dos Direitos Humanos na Ordem Internacional”: “In the need to adopt a concise definition, I understand for human rights a minimum set of rights necessary to ensure a life of the human being based on freedom, equality and dignity”.
Before starting the study of cases in particular, it is important to analyze the main arguments of the jurisprudence of the STJ regarding the judgment of IDCs, thus allowing a better understanding of the matter.
Exceptionality, necessity, imprescindibility, reasonableness and proportionality of the measure, in view of the requirement to meet the following conditions for its approval: (1) the existence of serious violation of human rights; (2) the risk of international accountability arising from non-compliance with legal obligations assumed in international treaties; and (3) the inability of local authorities and authorities to provide effective responses. All requirements must be present cumulatively. It may be before the process (IDC no. 5), as in the exception phase, that is, it is possible after the final transit (IDC no. 10) or even in the recursal phase, and may remove the competence of the special justice, for example, from the military justice to the common federal court (IDC no. 14).
Another recurring argument in the rejected incidents is the possibility of collaboration in the procedural instruction between the Federal Entities and the Union, that is, the possibility of the State Court requesting technical and/or operational assistance, if necessary, from the Federal Police, taking into account, to some extent, the provisions of Art. 3, VIII, of Law No. 12,850/2013. This last argument aims to perfect a true democratic cooperativism finalist, very interesting and certainly successful, but that, in practice, is difficult to achieve, not only in the face of bureaucratic obstacles, but also given the moral resistance (corporate) among those involved in this mutual “help”.
Jurisprudence also deepens interesting distinctions on the requirements, so inability or ineffectiveness differs from inefficiency. The inability or ineffectiveness would be related to the full omission (arising from inertia, omission, negligence, lack of political will, personal and/or material conditions, etc. – an example list provided for in item 2 of IDC 5/PE) in relation to legal accountability activities, while inefficiency translates into the absence of investigative results capable of incarceous ly in the legal sphere. In this sense, the transcription of items 6 and 7 of IDC 3/GO is opportune:
6. Incapacity or ineffectiveness of local authorities and authorities cannot be confused with inefficiency. While inability or ineffectiveness derive from complete ignorance in the exercise of state activities aimed at the accountability of the perpetrators of the crimes pointed out, inefficiency constitutes the absence of obtaining useful results and capable of generating legal consequences, despite the set of measures adopted. 7. Although it is clear that the inefficiency of the bodies responsible for investigating, pursuing and prosething of crimes against human rights, is a serious situation and must trigger within the National Councils and correctional bodies the taking of measures fit for their resolution, it is not substantially the driving force of the need to shift jurisdiction. On the contrary, it is the ineffectiveness of the State, revealed by the total lack of capacity to move and, thus, to fulfill the structuring role of its own organizational existence, the triggering factor of federalization.
Over these more than 15 years, 13 IDCs were evaluated by the STJ, until February 2021, to the analysis of each of them, in what is important for this study, emphasizing, already, that all the notes were taken from the STJ:
a) IDC 1: IDC 1/DF deals with the death of the American missionary Dorothy Stang on 2/12/2005, human rights representative regarding agrarian conflicts at the site, which occurred in the interior of Pará. The STJ understood absent the legal and phreatic assumptions for displacement. The central theme of the IDC is violence due to land dispute (agrarian) in Brazil.
b) IDC 2: IDC 2/DF handles the case of the lawyer and councilman of Pernambuco Manoel Bezerra de Mattos Neto murdered on 01/24/2009, as well as whistleblowers and witnesses of the case, who pointed to the actions of extermination groups on the border with the states of Paraíba and Pernambuco (trial date: 10/27/2010). The STJ understood the legal and phreatic assumptions for displacement. The central theme of IDC is the violence of extermination groups.
c) IDC 3: IDC 3/GO deals with torture and homicides carried out by police authorities in the State of Goiás. The Supreme Court understood the legal and technical assumptions for the displacement of part of the ongoing criminal proceedings, thus partially dismissing the request (date of the trial: 10/12/14). The central theme of the IDC is police violence and the slowness of the judiciary.
d) IDC 4: The IDC 4/PE was run by Sandro Ricardo da Cunha Moraes, Minister of the Court of Auditors of Pernambuco, because the act of the local Court of Auditors, which culminated in his retirement due to permanent disability, violating “secrecy of justice” for the causes of his retirement, putting his family and him at risk in the society they live in. It was denied follow-up to the IDC, given the illegitimacy of the postulant, a natural person not imbued with the quality of Attorney General of the Republic. Judged monocatically by Minister Rogério Schietti Cruz on May 20, 2014.
e) IDC 5: IDC 5/PE deals with the death of state Prosecutor Thiago Faria Soares, resulting from probable action by extermination groups operating in the interior of the State of Pernambuco (region known as “Triângulo da Pistolagem”). The STJ understood the legal and political assumptions for displacement (date of decision: 14/11/2014). The central theme of IDC is the violence of extermination groups.
f) IDC 9: IDC 9/SP deals with the Parque Bristol Massacre (South Zone of SP) or “Bloody May (or May crimes)”, which culminated in the death of more than 500 people in São Paulo in May 2006, still remains without trial. The Conectas Institute was admitted as “amicus curiae“.
g) IDC 10: The IDC 10/DF deals with the massacre of Cabula, a police operation conducted in Salvador/BA that resulted in the death of 12 people between 15 and 28 years old and 6 wounded, in Feb./2015 (trial date 28 /11/2018). The STJ considered that the legal and factual assumptions for the displacement were absent. The central theme of the IDC is police violence and local authorities’ bias.
h) IDC 11: In this IDC was alleged the partiality of the TJ of the State of Ceará and the Special Court of Domestic and Family Violence. Active illegitimacy was recognized, since it was not filed by the PGR, the STJ did not disclose the name remaining only consigned (H. de P. F.)
i) IDC 14: IDC 14/DF deals with the strike of military police officers of the State of Espírito Santo, on the grounds of lack of partiality of state authorities to conduct the investigation and impute responsibilities. The STJ understood the legal and political assumptions for displacement (trial date: 08/08/18). The central theme of IDC is police violence and the impartiality of local authorities.
j) IDC 15: IDC 15/CE takes care of deaths caused by extermination groups in Ceará, of which state public authorities would have participated, is still pending trial. The central theme is the actions of extermination groups and state violence.
k) IDC 21: The IDC 21/RJ adduces about the massacres that took place in Favela Nova Brasília in the State of Rio de Janeiro, in episodes of deaths and state violence in police operations between 1994 and 1995. The central theme is violence state-owned.
l) IDC 22: IDC 22/RO deals with homicides and tortures of people linked to peasant leagues that occurred in 2009, 2011, 2012 and 2016, refers to serious crimes suspected by state public security agents in Rondônia, is still pending trial. The central theme of justice and state violence.
m) IDC 24: IDC 24/DF handles the popular murder case of Marielle Franco, city councilwoman of Rio de Janeiro, and Anderson Gomes, its driver, on March 14, 2018. The STJ understood the legal and political assumptions for displacement (trial date: 05/27/20) was absent. The central theme of the IDC is the militias in Rio de Janeiro.
Misguided assessments in IDCs 6, 7, 8, 12, 13, 16, 17, 18, 19, 20 and 23 and secret cases of justice prevent further details at this point. Anyway, after extensive research, it was still possible to find reference to an IDC, not numbered due to the secrecy of justice, which aims to investigate violations of the rights of adolescents in a socio-education unit in the State of Espírito Santo.
This information was updated until February 2021.
Themes devoted to the humanist theme were never present in the incidents, such as subjects related to children and adolescents, the elderly, women, etc. Of course, these were victims of the facts that led to the incidents, and there is a preponderance for homicide cases. It is also pointed out that in several cases, the establishment of the IDC itself, by itself, has boosted investigations, which reveals the incidence of the slowness and partiality of the authorities in charge of the investigation and of the judiciary itself.
8. FINAL CONSIDERATIONS
At the beginning of this study, it was reported that a broad analysis of what was verified with the IDC from its inclusion in the national order, in the procedural and material and practical aspect, as well as to respond, through the methods pointed out, what could be improved in the procedural institute, for the purpose of expanding its humanitarian effects. In view of all the above, we can see the precariousness of the Dogmatics of the IDC in the Constitutional sphere, being urgent legislative reform (PEC or Federal Law) to extend the list of legitimized, so that the protection of human rights in Brazil walk towards greater safeguard.
The expression “at any stage of the investigation or proceedings”, present in the Constitutional Provision, must be interpreted in a teleological, systematic and evolutionary manner so that the incident is authorized in the context of any investigative process (civil investigation, for example), and not only in the criminal sphere, as has been verified in practice, as has been the opportunity to study throughout academic text, but also in the civil sphere.
The scope of this article is to bring technical, practical and critical reflections on the IDC, which is believed to have been achieved. It was explored in detail the procedural intricacies of IDCs in the jurisprudence of the STJ, bringing what has been decided most recently on the subject. All the IDCs filed were explored, studied and analyzed, with relevant information for human rights activists in the procedural area. There is extensive content of material law (international treaties) to be explored in IDCs.
Jurisprudence admits early guardianship, amicus curiae, exempting the incident from costs. The IDC has as main assumptions: i) the existence of serious violation of human rights; (ii) the risk of international accountability arising from non-compliance with legal obligations assumed in international treaties; and iii) the inability of local authorities and authorities to provide effective responses. The IDC can be dealt at any time of the course, whether in the investigation phase, civil or criminal, either in the recursal sphere, or even after the final transit.
REFERENCES
BRASIL. Proposta de Emenda à Constituição n° 31, de 2017. Disponível em: <https://www25.senado.leg.br/web/atividade/materias/-/materia/130919>. Acesso em: 31/01/21.
BRASIL. Constituição da República Federativa do Brasil de 1988. Disponível em: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm>. Acesso em: 20/01/21.
FILHO, V. B. Federalização das violações de direitos humanos. Brasília a. 44 n. 175 jul./set. 2007. Disponível em: <https://www12.senado.leg.br/ril/edicoes/44/175/ril_v44_n175_p67.pdf>. Acesso em: 20/02/21.
MALATO, L. E. F. R. Federalização da competência nos crimes contra direitos humanos. Pontifícia Universidade Católica de São Paulo, São Paulo, 2007. Disponível em: <https://sapientia.pucsp.br/handle/handle/7530>. Acesso em: 20/12/21.
MAZZUOLI, V. de O. Curso de Direitos Humanos. 2ª edição. São Paulo: Editora Método, 2015.
PIOVESAN, F. Direitos Humanos e Direito Constitucional Internacional. 12ª edição. São Paulo: Editora Saraiva, 2013.
RAMOS, A. de C. Teoria Geral dos Direitos Humanos na Ordem Internacional. 4ª edição. Rio de Janeiro: Editora Renovar, 2014.
SUPERIOR TRIBUNAL DE JUSTIÇA. STJ. Jurisprudência do STJ. Disponível em: <https://scon.stj.jus.br/SCON/>. Acesso em: 05/02/21.
SUPREMO TRIBUNAL FEDERAL. STF. Ação Direta De Inconstitucionalidade 3493. 2015a. Disponível em: <http://portal.stf.jus.br/processos/detalhe.asp?incidente=2294413>. Acesso em: 05/02/21.
SUPREMO TRIBUNAL FEDERAL. STF. Ação Direta De Inconstitucionalidade 3486. 2015b. Disponível em: <http://portal.stf.jus.br/processos/detalhe.asp?incidente=2293221>. Acesso em: 05/02/21.
APPENDIX- REFERENCE FOOTNOTE
3. Art. 109. The Federal Judges are responsible for prosecuting and prosecuting: § 5 – In the case of serious violation of human rights, the Attorney General of the Republic, in order to ensure compliance with obligations arising from international human rights treaties to which Brazil is a party, may raise, before the Superior Court of Justice, at any stage of the investigation or process, incident of displacement of jurisdiction to the Federal Court. (Included by Constitutional Amendment No. 45 of 2004)
4. Art. 109. Federal judges are responsible for prosecuting and prosecuting: V-A the human rights cases referred to in Paragraph 5 of this article;
5. Article 28. Federal clause: 1. In the case of a State Party constituted as a federal State, the national government of the aforementioned State Party shall comply with all provisions of this Convention, relating to matters on which it exercises legislative and judicial competence. 2.With regard to provisions relating to matters corresponding to the competence of the component entities of the federation, the national government shall immediately take the relevant measures, in accordance with its constitution and its laws, so that the competent authorities of those entities may adopt the appropriate provisions for compliance with this Convention.
6. Art. 103. They may propose the direct action of unconstitutionality and the declaratory action of constitutionality: (Drafting given by Constitutional Amendment No. 45, 2004) I – the President of the Republic; II – the Bureau of the Federal Senate; III – the Bureau of the Chamber of Deputies; IV the Legislative Assembly Bureau or the Legislative Chamber of the Federal District; (Drafting given by Constitutional Amendment No. 45 of 2004); V the Governor of state or the Federal District; (Drafting given by Constitutional Amendment No. 45 of 2004); VI – the Attorney General of the Republic; VII – the Federal Council of the Brazilian Bar Association; VIII – political party with representation in the National Congress; IX – trade union confederation or class entity nationwide. E: Art. 2nd and Art. 12a of Law No. 9,868/99 and Art. 2, I, of Law No. 9,882/99.
7. Art. 134. The Public Defender’s Office is a permanent institution, essential to the judicial function of the State, entrusting it, as an expression and instrument of the democratic regime, fundamentally, the legal orientation, the promotion of human rights and the defense, to all degrees, judicial and extrajudicial, of individual and collective rights, in an integral and free way, to the needy, in the form of the LXXIV item of Art. 5th of this Federal Constitution. (Wording given by Constitutional Amendment No. 80, 2014)
8. Menu: Gives new writing to the arts. 103 and 109, to dispose of the legitimacy of the Federal Public Defender General for the direct action of unconstitutionality, the declaratory action of constitutionality and the incident of displacement of jurisdiction to the Federal Court.
9. Art. 5th LIII – no one shall be prosecuted or sentenced only by the competent authority;
[1] Master’s degree in Law from PUC-SP, Specialist in Administrative Law from PUC-SP, Specialist in Private Law from the Paulista School of The Judiciary, Bachelor of Law from PUC-SP.
[2] Doctorate in Law. Advisor.
Submitted: July, 2021.
Approved: August, 2021.
