STF creates filter to block requests to specific minister

The president of Supremo Tribunal Federal (STF), Edson Fachin, on Friday set a sort of filter to try to block the routing of requests to ministers. The measure was adopted after episodes of the "wars of injunctions", when ministers of the Court starred in divergent decisions on the same subject, which generated internal tensions. The change also came after a questioning by Minister Kassio Nunes Marques, who is also president of the Superior Electoral Court (TSE).

Understand the context of the new rule

At the end of last month, Nunes Marques complained of the "undue overlap of competence" of the STF over the TSE — in the case of posts about the withdrawal of the title of Brazil's patron of Nossa Senhora Aparecida. The most recent case involving the directing of requests to specific rapporteurs occurred in the discussion on the withdrawal of posts that associated Senator Flávio Bolsonaro, candidate of the PL to the Presidency, to an alleged movement to withdraw from Nossa Senhora Aparecida the title of patron of Brazil.

Minister André Mendonça, in TSE, ordered the withdrawal of the publications because he considered this association to be false. The decision reached more than a thousand posts. The comedian Antonio Tabet presented to the minister Flávio Dino, in an action that was already in the STF, a request to overthrow the order of Mendonça, under the argument of prior censorship. Dino complied with the request and allowed the re-establishment of a Tabet publication on the subject and other posts removed on the same basis.

Flávio Bolsonaro then appealed to Minister Luiz Fux, rapporteur for actions that discussed and expanded the responsibility of digital platforms, to suspend Dino’s decision. Fux responded to the Senator's request. The episode led the plenary of TSE to analyze the individual decision of Mendonça and adjust the order, restricting its scope to posts considered to be false that associated the candidate with the idea or actions to withdraw from Nossa Senhora Aparecida the title of patroness of Brazil.

How the filter will work

The new rule creates a control step to prevent new demands from being automatically linked to a process and thus falling into the hands of a specific rapporteur. In practice, certain applications submitted within existing procedures will be examined before reaching the rapporteur. It will be necessary to verify that the new request has, in fact, sufficient relation to the original action to remain bound to it.

If this relationship is not recognized, the petition will be transformed into an independent process. In this case, it will be distributed among the ministers by lot or by prevention, when the rules of the court determine that a magistrate who already examines related issue should receive the case. The new rule reaches, among other cases, petitions submitted by third parties, that is, persons or entities that are not parties to that process, lawyers of the parties or members of the Public Prosecutor’s Office that act in the action.

Formal Validation and Distribution

With resolution, connection or continence binding will depend on formal validation. The analysis will be done by the Initial Processing Coordinator and the Judiciary Secretary and will also have to go through the Presidency of STF. If the court concludes that the new application is not directly related to the indicated process, it will open an independent action. The case could go to another minister.

The resolution does not change the normal manifestations of those who are already party to the process or the presentation of new documents. The measure is expected to reduce the so-called "war of injunctions" and bring more predictability to the processing of applications in the Supreme Court. The court did not detail when the rule begins to apply in practice.

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