Two jurists interviewed by Agência Brasil considered the court decision as positive for relatives of Marielle Franco and driver Anderson Gomes to participate in the police inquiry that investigates who ordered the double murder, which took place in 2018. the Sixth Panel of the Superior Court of Justice (STJ) decided to allow the family access to evidence already obtained and documented in the investigation, reversing a decision by the Court of Justice of Rio de Janeiro (TJRJ), which prevented this access. The families filed a request to have access to the investigation’s evidence, which was declared confidential, on the grounds that the investigation was slow. The Justices of the STJ considered that the Binding Precedent 14 of the Federal Supreme Court (STF) is applicable to the families of the victims, according to which it is the right of the defender, in the interest of the defendant, to have broad access to the evidence already documented in the procedure investigative. Maíra Fernandes, a criminal lawyer and guest professor at the Getulio Vargas Foundation (FGV), believes that the relatives of victims have “every right to accompany the investigations”. “The authorities generally find this follow-up to be healthy [da família das vítimas], which does not harm the investigations, on the contrary. In general, it contributes to the elucidation of the facts. I remember several cases in which I followed the investigation as a lawyer for the victim or for the relatives of the victims of various crimes and there was no need for a court decision to do so. I made a request for access to the investigation, demonstrating that I was the victim’s or the victim’s family’s lawyer, and access was granted without question”, highlights Fernandes. According to her, the decree of secrecy of the investigations should not be a reason to restrict the family’s access to what is being investigated. “Access must be allowed even in cases where secrecy is declared, which will be extended to lawyers for the victim’s family members. Thus, in the same way that the attorneys of the investigated, the police, members of the Public Ministry who have access to the files, the lawyers of the victims’ relatives must also keep confidential all the information contained in the files”, says the FGV professor. For the judge of law and professor of criminal procedure at the Fluminense Federal University (UFF), André Nicolitt, there would be no sense in denying Marielle and Anderson’s families access to information from the investigation, since the intention of these people is to collaborate and not to harm the investigations. “And neither would it have the power to expose the suspect, because, as it turns out, there is still no information about this authorship in relation to the masterminds of the crime.” Nicolitt, who is the author of the book Manual of Criminal Procedure, pointed out that the STJ did not consider only Binding Precedent 14 for its decision, but also important international documents, such as the Minnesota Protocol. “It is important that investigations that violate human rights are carried out in a transparent and efficient manner. The Brazilian State has every interest in this”, says Nicolitt. “The decision of the STJ will certainly reinforce this thinking in the Brazilian legal environment. This is already being built and, with this decision, in a case of this relevance, it represents an important precedent to guide future requests in this regard.” During the trial of the issue, the prosecutor Eduardo Morais Martins, from the Public Ministry of Rio de Janeiro (MPRJ), took a position against access because he considered that relatives of the victims could only act in the procedural phase (that is, after the process reach Justice) and not at the police inquiry stage. According to the prosecutor, the participation of victims (and family members) is not the same thing as access to the file. “Advertising is the rule for access to the process. In the investigation, secrecy is very important, many times.” In his oral argument against access to information, Martins said he was concerned that the STJ’s decision would set precedents for other situations. “What is decided here is not being decided only for Marielle and Anderson. It is being decided for all investigations throughout Brazil. We will be saying that all victims throughout Brazil can have access to confidential investigation data, ”he said. “This considerably increases the risk, in each of these cases, of information being leaked, of breaches of secrecy of information that is important to the person being investigated. Sometimes people are investigated and they didn’t commit the crime.” For Maíra Fernandes, the STJ determination will not create a “general repercussion”, in which the court decision is automatically linked to similar cases. “But it is clear that it is an important decision that could set precedents for other cases,” she predicts.
Agência Brasil
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