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20260915 143000 UTC
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[00:00:00] of the presidency of this court or of the plenary of this
[00:00:04] court and
[00:00:06] this
[00:00:09] defense, both the defense and the report, I asked
[00:00:12] Your Excellency, I myself asked Your Excellency to
[00:00:16] forward it to all the eminent colleagues.
[00:00:20] All the eminent colleagues had access to the full
[00:00:23] report, the full text of my defense, that I had
[00:00:26] the opportunity to express myself in...
[00:00:30] a meeting with all the colleagues present in Your Excellency's
[00:00:33] office on
[00:00:36] that date, Mr. President, by
[00:00:40] suggestion of Minister Flávio Dino, after
[00:00:43] the statement of all colleagues, a large, the vast
[00:00:46] majority understanding that there was
[00:00:48] no existence of anything that
[00:00:52] would lead to my suspicion, but
[00:00:55] accepting the suggestion made by the eminent Minister Flávio
[00:00:58] Dino that... that from the
[00:01:02] point of view of preserving the court,
[00:01:06] due to the repercussions that
[00:01:08] occurred because of that report,
[00:01:12] that I voluntarily recused myself from the rapporteurship,
[00:01:16] so I did, this was
[00:01:20] recorded in a note, signed by all
[00:01:23] 10 ministers of the Supreme Federal Court, this note
[00:01:27] is published on the website of the... federal
[00:01:30] court, then Your Excellency ordered the
[00:01:34] archiving of the report and this
[00:01:38] report is archived by Your Excellency's decision
[00:01:42] with final judgment, with the Attorney General's Office
[00:01:45] having acknowledged
[00:01:49] it and expressed its
[00:01:52] order refer to appeal, although
[00:01:56] no formal
[00:02:00] allegation of suspicion was accepted, quite the contrary,
[00:02:03] when the judgments
[00:02:07] began to occur in
[00:02:10] the second panel, already under the rapporteurship
[00:02:14] of the drawn rapporteur, Minister André
[00:02:17] Mendonça, I felt
[00:02:19] an obligation also to
[00:02:23] preserve the Court and to declare
[00:02:26] my suspicion for reasons of intimate forum.
[00:02:30] Not an impediment for reasons of intimate
[00:02:33] forum, so as not to embarrass, not to have
[00:02:37] any kind of bias of
[00:02:40] embarrassment to the court, accepting
[00:02:43] the wise suggestion of Minister Flávio
[00:02:46] Dino. Therefore, Mr. President, maintaining consistency with what
[00:02:50] I have done in the panel, I do not
[00:02:54] feel, therefore, for the
[00:02:56] preservation of the good progress of the work.
[00:03:01] No, before Your Excellency concludes, a very brief point, since Your
[00:03:04] Excellency honored me with the correct citation, Minister
[00:03:07] Flávio, I would like to agree in this session that the floor will always be
[00:03:11] requested from the presidency, if you allow me, Mr. President, I
[00:03:15] will follow the internal rules of the court which
[00:03:17] rapporteurship for say that the floor is requested from the presidency, this interjection is directed to the rapporteur, not
[00:03:21] Your Excellency asking for the floor from the presidency, that's what I'm
[00:03:24] telling you, Mr. President, I will follow the internal rules of the, well Your
[00:03:27] Excellency will have the floor.
[00:03:30] Internal rules of the court, Mr. President, and
[00:03:33] I greet Your Excellency, I greet the eminent ministers, I greet the
[00:03:37] Public Prosecutor's Office, the legal profession, all
[00:03:40] those present. First of all, Mr. President, I want to salute
[00:03:43] the wise decision of Minister Cássio
[00:03:46] and I think that Your Excellency's reasoning is very
[00:03:50] relevant, uh, to honor him,
[00:03:53] therefore, for understanding the magnitude of the function of President
[00:03:57] of the TSE, at a time when ... as Your
[00:04:00] Excellency said at the beginning, it is necessary to preserve
[00:04:03] deliberation, temperance, balance, this applies
[00:04:07] to everyone, including Your Excellency, exactly, including to follow the
[00:04:10] rules, eh, including for Your Excellency, eh, in
[00:04:14] relation, therefore to
[00:04:17] the declaration of Minister Cássio, just this reference, in relation
[00:04:21] to what Minister Tófoli said, just to underline and
[00:04:25] emphasize, eh, and for that I asked him to interrupt,
[00:04:28] the record. Your Excellency's record is absolutely
[00:04:32] fair, let's remember, there was
[00:04:35] an offer of a report from the federal
[00:04:37] police, this report was never appreciated by the
[00:04:41] collegiate body,
[00:04:45] there was an informal meeting, convened
[00:04:48] by the president and this
[00:04:51] informal meeting resulted exactly in this atmosphere, it
[00:04:54] is important to clarify this, because many versions came out,
[00:04:58] unfortunately false. In the subsequent days, until
[00:05:01] today false
[00:05:05] versions are still coming out about this meeting. In that meeting
[00:05:08] I made, as is my style, this thoughtful speech.
[00:05:13] About the preservation of the image of the court
[00:05:17] and I therefore made a suggestion that Your Excellency accepted and I want to once
[00:05:20] again thank you for the removal from the conduct of the
[00:05:24] case, now these are
[00:05:27] two distinct things, one thing is what was there, another
[00:05:30] thing is the report, this report never, I
[00:05:33] explain Mr. President, this fact because this will be in my vote
[00:05:37] shortly when it is
[00:05:40] my turn to vote. This Federal Police report
[00:05:44] was never considered by the collegiate, it
[00:05:47] is important to emphasize this, because shortly,
[00:05:51] when I give my vote, I will bring up this
[00:05:54] fact, eh, therefore, there was a monocratic archiving by
[00:05:58] the eminent minister Fakim, he archived
[00:06:01] it and, therefore, eh, at some
[00:06:04] point, perhaps the collegiate needs to consider this
[00:06:07] circumstance, just for Minister Tóffle
[00:06:10] to agree with Your Excellency. Regarding the facts as
[00:06:14] they occurred, thank you very much. Minister Dino, allow me to read
[00:06:18] just so we can agree on the best
[00:06:21] interpretation, because I might be mistaken about article
[00:06:24] 133 of the rules. Each minister
[00:06:27] may speak twice on the matter under discussion and
[00:06:31] more than once, if necessary, to explain the modification of the
[00:06:34] vote. No one shall speak without the authorization of the
[00:06:38] president, nor interrupt whoever is
[00:06:41] speaking. Except for interjections when requested and
[00:06:45] granted. Your Excellency understands that this final part refers to the
[00:06:48] rapporteur. Mr. President, I understand, as has always been understood in
[00:06:52] the court, that an interjection is directed to whoever has the floor, right?
[00:06:55] It could be, of course, that at some point we change the rules, but for
[00:06:59] now, it's this. I now understand Your
[00:07:02] Excellency's position. Thank you, Mr. President. You're welcome,
[00:07:06] Minister, I ask for permission to withdraw. You're welcome, Your
[00:07:09] Excellency, please feel free, thank you. Your Excellency. Especially since Your Excellency has
[00:07:13] an election, right? Minister Toffle, Your
[00:07:17] Excellency granted the interjection to Minister Flávio Dino,
[00:07:21] you're welcome, I just reiterate to Minister Flávio Dino that
[00:07:24] the report was archived
[00:07:27] as soon as it was received by the presidency due to
[00:07:30] the absence of evidence of
[00:07:34] any illicit event, and this
[00:07:37] archiving, it, to the extent that Your
[00:07:41] Excellency determined the distribution
[00:07:44] exclusively by allegation of
[00:07:47] suspicion, it is because no
[00:07:51] type of illicit act was found, and in this sense, it was
[00:07:54] indeed analyzed, even if in an
[00:07:57] informal meeting, there is a note from the 10 ministers and
[00:08:00] signed by the 10 ministers, stating that
[00:08:04] in the elements contained in the report published on the website of the
[00:08:07] Supreme Federal Court, no evidence was
[00:08:11] found of the need
[00:08:14] for suspicion, but
[00:08:17] given the attitude of Minister Dias Toffoli,
[00:08:21] including, if my memory serves me right, the note cited the
[00:08:23] greatness of the attitude,
[00:08:27] he withdrew from the
[00:08:30] redistribution, the presidency archives the
[00:08:33] report, notifies the Attorney General's
[00:08:36] Office, which declares itself informed and that it will not
[00:08:40] file an appeal, so... from a technical,
[00:08:44] formal point of view, this report is res judicata,
[00:08:47] besides the fact that there would be several issues,
[00:08:50] evidently of nullities, because that was
[00:08:54] a completely apocryphal investigation, outside of
[00:08:57] the records, done, not
[00:09:00] as findings within an existing process, but
[00:09:04] as a true illicit
[00:09:07] investigation, Mr. President and
[00:09:11] in view of this, "I understand that,
[00:09:14] as I have expressed in the panel, for
[00:09:18] suspicion, not and I reinforce
[00:09:21] not because I feel
[00:09:25] impeded, but for suspicion for intimate
[00:09:28] forum, for the preservation of the court in view of eventual
[00:09:32] speculations, even knowing about the final judgment,
[00:09:35] I declare my suspension to
[00:09:39] participate in this judgment
[00:09:42] and..." "I will not withdraw, because I have the right
[00:09:45] to follow the session and stay
[00:09:48] here following the session and
[00:09:51] also, if necessary, to make use of
[00:09:55] the floor, I will do so, you're welcome,
[00:09:57] Minister, therefore, Your Excellency will not participate in the
[00:10:01] judgment of, will not participate as
[00:10:04] a participating minister of the quorum for appreciation
[00:10:07] and deliberation, as for the content of what Your Excellency says,
[00:10:11] I understand that it is not..." It is exactly this matter that we are
[00:10:15] debating here at this moment. Minister Gilmar
[00:10:18] Mendes asks for the floor. Mr. President, I
[00:10:21] received, you sent, Your Excellency.
[00:10:25] an official letter from
[00:10:28] Minister Flávio Dino, eh, through
[00:10:31] the electronic system, and I'm now distributing
[00:10:35] it
[00:10:38] eh to Your Excellency to the ministers Gilmar
[00:10:41] Mendes is speaking at this moment, we will now take the mandatory break, then you will
[00:10:45] continue following this historic judgment, see you
[00:10:48] soon.
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[00:16:03] we're back, we continue our coverage of this historic judgment in the
[00:16:07] Supreme... Federal Court. At this moment, Minister Gilmar
[00:16:10] Mendes is speaking. We remind you that Ministers Cássio Nunes Marques
[00:16:14] and Dias Toffoli said they will not
[00:16:17] participate in the vote. Nunes Marques said the reason
[00:16:21] would be because he is president of the Superior Electoral Court. Toffoli, on the other hand, says the reason is
[00:16:24] personal, but he will
[00:16:28] follow the session in person
[00:16:32] and may even speak.
[00:16:35] Nunes has already left the session and
[00:16:39] of course we continue to follow, the expectation is whether
[00:16:42] more ministers will declare themselves fit
[00:16:46] or not to vote. We also followed a bit earlier
[00:16:50] the report, right, presented by the minister
[00:16:53] also rapporteur of the case Edson Faquim, so let's remember here
[00:16:57] right, how the process happens, the report has already been
[00:17:00] read by the rapporteur, Minister Edson Faquim, and
[00:17:04] we may also have soon, right after.
[00:17:37] it started a little after the time we had said, right, that it would start a
[00:17:41] little after 10 a.m., the first to speak was the
[00:17:44] President of the Supreme Federal Court, who is the rapporteur
[00:17:48] of this case being analyzed today, Minister Edson Faquim,
[00:17:52] he began by reminding that there is not an easy path to resolve
[00:17:55] this situation, that it is necessary to follow the
[00:17:58] constitution, respect the institution,
[00:18:02] the Supreme Federal Court, including for those who
[00:18:05] preceded them and those who will
[00:18:07] succeed them here in the Supreme Court, then he read
[00:18:11] the report, a summary of the report
[00:18:15] of this case. Subsequently, Kelly, after
[00:18:18] presenting this summary of the case, some ministers asked
[00:18:22] for the floor. The first to ask was Minister Nunes
[00:18:25] Marques. He declared himself impeded from voting in this
[00:18:29] case, alleging that he is president of the Superior Electoral
[00:18:33] Court at this moment, at this pre-election moment, so he declared
[00:18:36] himself impeded. Subsequently, the next to ask for the floor was
[00:18:40] Minister Dias Toffoli, who has already been
[00:18:42] investigated for suspicions of involvement between
[00:18:46] him and the banker Daniel Vorcaro, so he said he
[00:18:50] would declare himself suspicious for personal reasons, he said
[00:18:54] it's not an impediment, but suspicion for personal reasons. Minister
[00:18:57] Diastoffoli declared this, but remains in the plenary
[00:19:00] following the session, following the session. Minister
[00:19:04] Cássio Nunes Marques left the plenary of the
[00:19:07] Supreme Federal Court, remembering that at this moment, the Court, which
[00:19:11] normally has 11 members, at this
[00:19:13] moment, has only 10 members, because at
[00:19:17] the end of last year, Minister Luiz Roberto Barroso left the
[00:19:21] court and this vacancy is open, it has been open
[00:19:25] for almost a year, so there are 10
[00:19:28] ministers currently here at
[00:19:31] the STF, in the Supreme Court, before the start of the
[00:19:34] judgment there was an expectation
[00:19:37] whether ministers Alexandre de Moraes and André Mendonça would sit close because their
[00:19:41] chairs in the plenary are next to each other, there was this
[00:19:45] expectation whether today there would be a change of place so that they would not
[00:19:49] be so close to each other, but they remain in
[00:19:52] the session in the place they always occupy, sitting
[00:19:56] next to each other, we continue to follow
[00:19:59] this session that Kelly, there is no time prediction
[00:20:03] for this session, the reading of the report did not have an expectation of
[00:20:07] how long it would last, after the ministers speak, as Minister Gilmar
[00:20:11] Mendes is now speaking, after they speak,
[00:20:14] it should be the turn of the Attorney General of the Republic, there is also
[00:20:17] no delimited time for this exposition, for this
[00:20:20] explanation, after the positioning of the Attorney
[00:20:24] General's Office, then the president
[00:20:28] and rapporteur of this case, Minister Edson Faquim, returns to
[00:20:31] read his vote and only then, the ministers
[00:20:34] should vote in this case. A curiosity, Kelly, is that
[00:20:38] normally on Tuesdays, at 7 p.m., a
[00:20:42] session of the TSE, of the Superior Electoral Court, is held. This session is
[00:20:46] scheduled for today, inclusive, and generally, on Tuesdays. The
[00:20:50] plenary session of the STF ends
[00:20:52] around late afternoon so as not to clash with the time
[00:20:56] of the TSE session, but today there is no such
[00:20:59] prediction of when this STF session should end,
[00:21:03] Kelly? That's right, we continue following, it's a historic moment,
[00:21:07] right? We are here broadcasting everything in real time. Lívia, thank you very much
[00:21:10] for the information, good work, any news just call. And
[00:21:14] Minister Gilmar Mendes continues speaking, let's hear a snippet, please.
[00:21:18] Impartiality. as an indispensable
[00:21:21] attribute to the legitimacy of
[00:21:23] jurisdiction. In this sense, by obstructing the
[00:21:27] choice of the judging body, the constitutional text not only prohibited
[00:21:31] the assumption of a case in progress before another court,
[00:21:35] but also forbade the assumption of the
[00:21:38] process distributed to
[00:21:41] the chosen
[00:21:43] rapporteur. It could not be otherwise, as the
[00:21:46] distribution by lottery constitutes an instrument by which the
[00:21:50] abstract jurisdiction of the
[00:21:53] court is converted into the concrete jurisdiction of a specific
[00:21:56] judge. It is the lottery that within the court
[00:22:00] realizes the guarantee of the natural judge,
[00:22:03] making it impossible for anyone to choose who
[00:22:05] will judge. At this point, a reflection is
[00:22:08] imposed.
[00:22:11] If the 1988 Constitution repudiated the avocatory action, even when
[00:22:14] exercised by this Supreme Court, in relation to
[00:22:18] different courts and tribunals, with much greater reason
[00:22:22] it should repudiate the displacement operated without any normative
[00:22:25] support within the court itself. It is well
[00:22:28] true, I
[00:22:31] must say this with full transparency, Minister
[00:22:35] Joaquim, that through official letter 003,
[00:22:38] MGM, I suggested to Your Excellency that you attract PET
[00:22:42] 1662
[00:22:45] to the presidency, with the purpose of delimiting the
[00:22:49] object of the judgment. I also recommended the consolidation of
[00:22:52] the processes, PET 1662
[00:22:56] and PET 16 704, in
[00:22:59] the form of article 82 of the Code of Criminal
[00:23:02] Procedure. The suggestion mentioned, however,
[00:23:05] did not aim for Your
[00:23:08] Excellency to definitively assume the
[00:23:12] rapporteurship of such procedure, but merely
[00:23:14] to consolidate it with that one conveyed
[00:23:18] in PET 167. 304 for joint instruction and
[00:23:21] judgment, all through a
[00:23:25] preliminary
[00:23:28] order. As for that point, I emphasize, in this sense, the
[00:23:31] natural consequence of these premises is to
[00:23:34] advance on the path already initiated by the presidency, which
[00:23:38] is,
[00:23:39] to define
[00:23:42] that before any judgment, related cases must be consolidated and organized,
[00:23:46] as well as necessary
[00:23:50] evidentiary measures concluded.
[00:23:52] Only then, through adequate and rational preliminary
[00:23:56] proceedings, would the elements for appreciation by
[00:23:59] the plenary be precisely delimited. This is in my official letter
[00:24:03] 003 and we also had conversations
[00:24:07] regarding this matter. It can thus be seen that
[00:24:10] at no time did I consider that the president of this court should
[00:24:13] permanently assume the rapporteurship of PEP
[00:24:17] 1662.
[00:24:20] He could not do so, precisely because the internal rules of this Supreme
[00:24:23] Court determine the distribution of cases that arrive at this Court,
[00:24:27] with the exception of the exhaustive hypotheses of
[00:24:30] registration with the presidency. The official letter I
[00:24:33] sent to the presidency aimed at the adequate
[00:24:36] instruction of PET 16
[00:24:38] 662 with the designation of joint
[00:24:42] judgment with PET 16704,
[00:24:46] with the distribution to be made by
[00:24:48] lottery among the members of the court for both
[00:24:51] cases, all in accordance with the rules. Thus, the
[00:24:55] initiation of a process and the determination of its registration with
[00:24:58] the presidency, outside the hypotheses outlined exhaustively
[00:25:02] by the rules of this Court, evidences the
[00:25:05] adoption of a procedure incompatible, in my view, with
[00:25:09] the echo and distance that the judge must maintain from a case
[00:25:12] subject to his jurisdiction. In
[00:25:15] effect, the presidency ordered ex officio the institution
[00:25:19] of PET. 6 704, a procedure in which
[00:25:22] not only elements extracted from these very
[00:25:25] records are discussed, but also issues raised in Inquiry
[00:25:28] 4.781, PET
[00:25:32] 16704 thus bears a relationship of
[00:25:35] continence with the present PET
[00:25:38] 1662, from which it extracts
[00:25:41] a portion of its own object. In this relationship of
[00:25:45] continence there is an unavoidable
[00:25:48] consequence. "the presiding minister is part of the
[00:25:51] process and also has his decision questioned now
[00:25:54] in this document brought by Minister Flávio Dino,
[00:25:58] Minister, your Excellency grants a part, Mr. President, your Excellency
[00:26:01] authorizes Minister Vilmar to grant me the part, the irony
[00:26:05] is between the lines, without a doubt, your Excellency, I thank the President, the
[00:26:09] irony serves to lighten the atmosphere, your Excellency knows
[00:26:12] that, Aristotle. Mr. President, again I greet your
[00:26:16] Excellency and everyone,
[00:26:19] and to make two explanations, the first is why I
[00:26:23] addressed this communication to
[00:26:26] the senior minister, it's because of the rules,
[00:26:29] eh, as I explained just now, justice
[00:26:33] can only be realized
[00:26:36] according to due process of law, every
[00:26:40] time we deviate from that, Brazil witnesses
[00:26:43] disasters, from the mudslide of
[00:26:47] 1954, the false accusations against Juscelino
[00:26:50] Kubitschek, the coup of
[00:26:53] 64 and other disasters, so
[00:26:57] moderation, prudence, I say this in the
[00:27:00] communication as republican virtues
[00:27:03] extolled again by
[00:27:06] Aristotle, with the law as
[00:27:08] a guide, the norm as
[00:27:11] a reference, and that's what distinguishes
[00:27:15] a judge from a vigilante,
[00:27:19] a judgment from a massacre, look, at this
[00:27:23] point someone, uh, thinking
[00:27:26] only with a key that is not legal, the
[00:27:30] dual key would be like this:
[00:27:33] no, it's either a massacre or it's
[00:27:36] impunity, our mission is
[00:27:39] precisely to show that there is a civilized
[00:27:42] path,
[00:27:45] without which there is no legitimate state activity,
[00:27:49] why, Mr. President, I raised the point of order to the senior minister,
[00:27:52] because points of
[00:27:55] your Excellency's actions, because with
[00:27:59] due respect, they are not provided for
[00:28:03] in the Constitution, nor in the Code of Criminal Procedure, nor in the Organic Law of the Public Prosecution Service, nor in the
[00:28:06] rules, this creates a
[00:28:10] paradoxical situation, we
[00:28:14] are a court, guardian of
[00:28:17] the law, and that's why we cannot judge
[00:28:20] anyone, whether any of those present
[00:28:23] here who tomorrow may be in that situation or a
[00:28:26] citizen, if it is not in the terms of
[00:28:29] the law,
[00:28:31] of course, your Excellency is the author of the acts I
[00:28:34] challenge, Minister Alexandre
[00:28:38] is a party to the cases, following,
[00:28:41] therefore, the rules, Mr. President,
[00:28:43] Vice-Dean,
[00:28:45] I submitted to the Dean, Mr. President, because I myself reasoned with your
[00:28:49] Excellency, we have a complex situation,
[00:28:53] as Minister Juma just described,
[00:28:56] so complex that the agenda,
[00:29:00] the agenda we received from the court's secretariat,
[00:29:04] the published agenda
[00:29:06] brings as rapporteur Minister André, it
[00:29:09] says, rapporteur Minister André Mendonça, it's
[00:29:13] here, there was no
[00:29:15] redistribution, there was no, there was no
[00:29:18] publication of an agenda with the redistribution made, so much so that the
[00:29:22] agenda that is here, delivered by your
[00:29:25] Excellency, says that the rapporteur is Minister André, when
[00:29:29] I here I thought he was going to make the report and that... I mean,
[00:29:32] Mr. President, that in my opinion it had to be him
[00:29:35] indeed, that's the
[00:29:38] point, your Excellency took over five
[00:29:41] processes,
[00:29:44] three of André's, and one of
[00:29:48] Alexandre's,
[00:29:50] it happens, Minister Gilmar is here, Minister Carmen, Minister
[00:29:54] Fucs, it's that avocation was
[00:29:57] banned among us since the
[00:30:00] Constitution. there is avocation,
[00:30:04] avocation among equals, your Excellency's robe
[00:30:06] is equal to mine, your Excellency is the president, I am
[00:30:10] more modern, therefore, of lower symbolic
[00:30:13] hierarchy, but your Excellency's robe is
[00:30:15] equal, why is it equal? Because this is a court of
[00:30:19] equals, being a court of equals, we have to
[00:30:23] follow the rule that governs the relationship between
[00:30:26] equals, what does this rule say? In
[00:30:30] no court in the country, none, not only in the
[00:30:33] Supreme Court, can a president remove a
[00:30:37] rapporteur,
[00:30:39] because if he does, Mr. President, see the responsibility of
[00:30:43] whoever wears a robe and
[00:30:46] I know all sides, this is not a place for those who seek
[00:30:50] applause, this is not a place for those who seek
[00:30:53] popularity, this is not a place, my friend Nelson
[00:30:57] Jobim used to say, to make a biography, this is a place to do
[00:31:01] justice, justice due for