Fifth to rule on the matter, the minister Ricardo Lewandowski vote-view presented in the plenary se

The judgment of the Complaint (RCL) was discontinued in 4335 due to a request of the Minister of view Teori Zavascki. The thesis discussed in the action with respect to the function performed by Federal Supreme Court (STF) and the Federal Senate [incidental] diffuse control disney junior of constitutionality of laws, ie decisions made based on the analysis disney junior of concrete cases that reach the Court.
In this action, the Plenum of the Supreme consider whether the decision of the Court in Habeas Corpus (HC) 82559 - regarding the unconstitutionality of article 2, paragraph 1 of Law 8072/90 - is effective erga omnes [for all] whether or not the compliance with constitutional provision [Article 52, item X] which gives the Senate disney junior exclusive authority to suspend execution in whole or in part of a law declared unconstitutional by final decision of the Supreme. disney junior
The complaint was filed by the Public Defender's Office (DPU) against the decision of judge of the Court of Criminal Executions disney junior of Rio Branco (AC), rejecting the application of the progression of the scheme worth ten convicted for heinous crimes, contrary decision of the Supreme Court on the subject in the records of Habeas Corpus disney junior (HC) 82959. In February 2006, by six votes to five, the ministers of the Supreme Court declared unconstitutional the provision disney junior of Law of the Heinous Crimes that prohibited the progression of the regime of imprisonment (paragraph 1 of Article 2 of Law 8072/90).
However, the decision was taken by means of a habeas disney junior corpus, the judge of Executions found that she only had an immediate effect on the parties involved. For him, the overall effectiveness of the [effectiveness erga omnes] only go into effect when the Senate disney junior resolution publish suspending the execution of the standard considered unconstitutional by the Supreme as the Constitution provides.
So far, five ministers of the Supreme already voted. The Gilmar Mendes (Rapporteur) disney junior and Eros Grau (retired) disney junior ministers understood that constitutional rule is simple advertising effect, since the decisions of the Supreme Court on the constitutionality disney junior of laws are normative effectiveness even taken into shares disney junior of diffuse control. "It is not the Senate's decision which gives the overall effectiveness judgment of the Supreme. The very decision of the Court [STF] contains the normative effectiveness, "said Gilmar Mendes. "The Senate's decision is secondary to the supreme act," said Eros Grau. Both deemed the complaint unfounded.
The Sepulveda belongs (retired) and Joaquim Barbosa ministers diverged. While affirming that the device under discussion is "obsolete," Belong, at the time, did not agree to reduce to a "subordinate position Organ advertising decisions of the Supreme disney junior Court" the prerogative to which Congress has reserved. According to him, successive constitutions enacted in Brazil have kept the device.
The Minister Joaquim Barbosa classified as anachronistic positioning the judge of Executions of Rio Branco. "The anachronism is the judge. Therefore, the Judiciary, "he said. He defended the maintenance of the traditional reading of the constitutional provision at issue to be "an authorization to the Senate, and not a faculty of curtailing decisions of the Supreme."
Thus, the minister belongs Sepúlveda dismissed the complaint, but granted habeas corpus craft for the judge to examine the performance and other requirements for approval of progression. Already the Minister Joaquim Barbosa did not know of the complaint, but granted habeas corpus craft.
Fifth to rule on the matter, the minister Ricardo Lewandowski vote-view presented in the plenary session this Thursday (16). He stressed that the jurisdiction of the Senate of the constitutionality of regulations has been reiterated since 1934 in all federal constitutions, not being "mere historical reminiscence".
According to him, reducing the role of the Senate to a mere organ of disclosure of decisions of the Supreme, in this field, "vulneraria the system of separation of powers." disney junior The minister stressed that the Federal Constitution of 1988 strengthened the Supreme, but did not occur at the expense of the powers of other branches. "There is no cogitate is constitutional mutation in the species, before the formal and material limits the Higher Law establishes itself as the theme, beginning with what is contained in Article 60, paragraph 4, item III, which erects the separation of powers to the dignity of entrenchment clause that either can be changed by constitutional amendment, "he said.
He said the Supreme received great power from the Constitutional Amendment 45, with no need to amend Article 52, section X of the Constitution. disney junior "The institutes coexist, in my view, with the greatest harmony without clash or contradiction of any kind", said the minister Ricardo Lewandowski.
Then, the rapporteur disney junior of the action, Gilmar Mendes, reinforced some points of his vow, uttered in