Minister André Mendonça, of the Federal Supreme Court (STF), changed his vote in the action that judges whether it is constitutional to search the intimate parts of visitors to prisons. With that, the majority that had formed hours before to prohibit the procedure was undone. According to the minister’s office, there was a material error when computing the vote, which was corrected. Mendonça now appears as an adherent to the divergence opened by Minister Alexandre de Moraes, who sees the possibility of carrying out intimate searches, provided that under pre-established protocols and specific rules. The theme was judged in the virtual plenary, in a session scheduled to end at 11:59 pm this Friday (19). Shortly after the correction of the vote, Minister Gilmar Mendes asked for the direct action of unconstitutionality to be highlighted on the subject. This means that now the analysis should be done in the conventional plenary, where there is debate in person or by videoconference. In this case, the Supreme Court rules provide that the vote must also be redone. There is still no set date. Earlier, before the change in Mendonça’s vote, a majority had formed around the position of the rapporteur, Minister Edson Fachin. For him, the practice of intimate searches is incompatible with the 1988 Constitution, among other points, for violating the dignity of the human person. Fachin agreed with the arguments presented in an extraordinary appeal to the Supreme Court, in which the defense of a woman from Rio Grande do Sul asked for the annulment of evidence obtained through intimate searches. The appeal has recognized general repercussions. Thus, the outcome of the process should serve as a parameter for all similar legal cases. For this, most ministers approve a thesis to be followed by all courts in the country. The thesis suggested by Fachin has the following content: “The vexatious practice of the intimate search in social visits in establishments of compulsory segregation is unacceptable, prohibited in any way or form the stripping of visitors and the abominable inspection of their body cavities, and proof obtained from it is illicit, and the absence of electronic and radioscopic equipment is not an excuse.” In his vote, Fachin clarified that he considers personal searches to be legitimate, without stripping and as long as the visitor has already gone through equipment such as metal detectors and X-rays. It is also necessary that there be “concrete elements or documents that materialize and justify the suspicion of possession of illegal or prohibited substances/objects, in order to allow for judicial control, as well as civil, criminal and administrative liability in the event of any arbitrariness ”, wrote the minister. In the specific case, the ministers judged the appeal of a woman who was caught in a prison in Rio Grande do Sul with 96.09 grams of marijuana hidden in her private parts. The drug would be taken to her arrested brother. The Public Defender’s Office alleged that the evidence of the offense was obtained through an illegal procedure, which harmed the privacy, honor and dignity of the defendant, among other violations, and that for this reason there would be no way to validate the evidence. The Public Prosecutor’s Office of RS appealed, stating that it was not possible to create a kind of “criminal immunity” for the entry of drugs into penitentiaries. Before the suspension of the trial, ministers Cármen Lúcia, Luís Roberto Barroso, Rosa Weber and Gilmar Mendes had voted with Fachin. Ministers Alexandre de Moraes, Dias Toffoli, Nunes Marques and now André Mendonça disagreed. Luiz Fux had not yet voted.
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