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Offline Chuckles

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Google translation of Mendes decision - David
« on: December 22, 2009, 08:45:09 PM »
Obviously a rough translation.  For discussion of what it means, please see the Decision Update thread..
------------------  

MED. CAUT. WARRANT IN SECURITY 28,525 FEDERAL DISTRICT
RAPPORTEUR: MIN. CEZAR PELUSO
IMPTE. (S): DAVID GEORGE GOLDMAN
ADV. (A / S): Ricardo Zamariola JUNIOR E
OTHER (A / S)
IMPDO. (A / S): SPEAKER AT HC No. 101,985 THE SUPREME
FEDERAL COURT
DECISION: This is a writ of mandamus (pages
2-20), a preliminary injunction, filed by David George
Goldman against the act of the Minister's rapporteur HC No
101.985/RJ, Minister Marco Aurelio, pending in the Supreme
Federal Court (STF), which determined the outset
suspension of the "effectiveness of the ruling of the Court
Regional Federal da 2 ª Região Appeal in Civil Action No.
2008.51.01.018422-0, which shows a peremptory order
delivery of the patient to American Consulate in Rio
January in 48 hours "(fl. 32).
Preliminarily, the petitioner submits the
no place in this writ (pages 5-6), understanding not
be proper appeal or possibility of the ants
impugned act, under the Rules of Procedure of the Supreme Court (art.
5, V) and the Statement of Precedent 267. It maintains that its
legal interest lies in the fact that the biological father of
smaller.
Still in place of all, the petitioner claims
the Minister Marco Aurelio was not prevented the
knowledge of the HC No 101.985/RJ or the HC No 99.945/RJ,
among them would also pendens. Maintains that
the judgment by the TRF of the 2nd Region, in musical
appeal, replaced the sentence challenged in HC No
101.985/RJ, which would, therefore, lost the object. Adds that
the path chosen (habeas corpus) is not substitute for appellate and
not include delay value. Finally, argues that
was joined, the case of HC No 101.985/RJ, the report
expert produced by the Federal Court in the action of origin.
In substance, the petitioner contends that no
is devoid of family power and the lowest was
played by legal experts, so that its
expression should be taken into account under
art. 12 of the Convention on the Rights of the Child.
In the end, requires examination of the records of the HC No
101.985/RJ for the extraction of copies (pages 18-19). How much
the point, argues that the risk of harm is in arrears in
immediate need of reunion of father and son, in
view the occurrence of a process of parental alienation
smaller. The prima facie juris lie in the fact that the
Plaintiff, the only living parent of the child, not being private
of family power (pages 19-20).
Step decide.
Preliminarily, it is perquirir himself
no place of this injunction.
The thrust of this Supreme Court is in
sense of no place does the injunction against an act
jurisdiction of the Court. Accordingly the trial in
following precedents: MS 25,413-AgRg, my rapporteurship,
Full, DJ 14/6/2007; MS 22,515-AgRg, Rep. Min Sydney
Sanches, Full, DJ 4/4/1997; MS 22,626-AgRg, Rep. Min
Celso de Mello, DJ 22.11.96, MS 21,734-AgRg, Rep. Min
Ilmar Galvão, 15.10.93 DJ.
However, in exceptional circumstances, this Court
already admitted to filing for an injunction against acts
unappealable court and formally recorded monocratic
by Ministers of the STF.
I refer to MS 24,159-QO, Rep. Ellen Low
Gracie, Full, DJ 31.10.2003. At the time, the Plenary
granted the injunction on a writ of mandamus to reform
decision of the President of the Supreme Court at the time,
Minister Marco Aurelio, who, after reconsidering the decision of
President that preceded it (Min. Carlos Velloso), denied the
Suspension Security No 1962/RJ.
Given that the decision denying the suspension
was not subject to appeal and that there was great risk of
serious injury to the petitioner, the Plenary saw fit to
admit the injunction against an act of the Minister
Supreme Court. The menu of the ruling so
provides:
"WARRANT FIRE SAFETY ACT REVIEW.
EXCEPCIONALIDADE. SUSPENSION OF SECURITY DENEGADA.
EVIDENCE OF RISK OF INJURY TO THE ECONOMY AND HEALTH
PUBLIC. PIS AND COFINS. Law No. 9718/98 and MP
1.991/00.
1. Exceptional situation that is known to warrant
security court action filed against the
Presidency, order revoking concessive
earlier, refused to suspend security seeks.
2. Clear evidence of bad faith, before the
Sowing similar requests in various Courts
Federal and obtaining a favorable result in court
apparently incompetent. Sentence assured
distributor fuel Permits
against the performance of the farms around
nationwide.
3. Lack of legal plausibility of the claim
upheld the sentence. Suspensive effect
appropriate refused the 2nd instance. Suspension
Security denied the Presidency of the Court
Federal Circuit.
4. Evidence of risk of injury to the coffers of
Social Security, given the characteristics of
fragility of corporate assets and business
benefit from the release (at least partial)
collection of contributions.
5. Injunction upheld. "
Situation was similar in MS No. 25,024,
filed against the decision rendered in monocratic ADI No
3273, rel. Minister Carlos Britto. Minister Nelson
Jobim, then President, granted the injunction requested in
injunction to suspend the ruling issued in
that ADI, in order not to be appropriate decision
monocratic the case, "except during the recess" (Law No.
9868/99, art. 10, heading).

On occasion, the Minister said President
the ADI No. 3273 had been distributed and the conclusion
Rapporteur on 9/8/2004, received in the office on
10.08.2004, which was held plenary on
12.08.2004. However, the injunction was partially
accepted by the Minister Carlos Britto on 16.8.2004 (DJ
23.8.2004) and was suspended the next day, the
decision of the Prime Minister in MS No. 25,024, considering
auction would be held that day. In
02.05.2005, the Minister Eros Grau, rapporteur MS No. 25,024,
found him injured in the face of the Full Bench of Tues
rejected ADI No. 3273.
So, once again, it was the
feasibility exception, according to law
this Court, to be filed for an injunction against
monocratic decision of Minister of STF.
Along the same lines, the rapporteur MS 25853/DF, Min
Cezar Peluso, granted the injunction to "suspend the effects
the injunction issued in MS No 25,846,
restoring the content decisum recorded by Celso de
Mello, the ACO No 840.
At the time, the injunction had alleged
injunction granted by the Minister Marco Aurelio
file another writ of mandamus (MS 25.846/DF), which
required the Union to guarantee for loan
International obtained by the Federal District. A
the second preliminary injunction remains deferred,
in view of its exceptional features and
complete absence of another remedy, as follows:
"(...)
And, as old and mature Court's jurisprudence,
is in principle inadmissible Injunction
against a judicial pronouncement
come organ of the Court, be it the plenum, one of
their classes, or one of his Ministers, as
such acts are making pensioners through
resources provided, or, in the case of trial
merits, with res judicata, through action
rescission (MS No. 24,399, Rep. Min ALVES MOREIRA,
DJ 09.04.2003; MS No. 24,885, Rep. Min SEPÚLVEDA
MINE, DJ of 18.05.2004; MS No. 23,715-MC, Rel
Celso de Mello, DJ 26.06.2000; MS No. 22,515 -
AgR, Rep. Min Sydney Sanches, DJ 04.04.1997; MS
No. 21,734, Rep. Min Ilmar Galvão, DJ 15.10.1993;
MS No. 24,056, Rep. Min ELLEN GRACIE, DJ
12/09/2001; MS No. 24,483, Rep. Min Carlos Velloso,
DJ, 02.04.2003, MS 25,008, Rep. Min NELSON JOBIM,
DJ 09.08.2004). This sense I have been deciding (MS
No. 25,380, of 06.06.2005 DJ; MS No. 25,070, DJ
28.03.2005; MS No. 25,026, DJ 08.09.2004; MS No.
25,452, DJ, 10.11.2005).
There is no way expeditiously to remedy the situation,
involves a clear risk of harm to the legal
petitioner, but the exceptional use of the same warrant
security.
And it costs to consider in strengthening that the injunction now
contested custody obvious character satisfying, because
exhausts the questions posed in the injunction.
3. From the above, I DEFER point, the end of
suspend the effect of the injunction issued
MS No. 25,846, restoring the content decisum
recorded by Celso de Mello, the ACO No. 840.
Notify the constraining authority for providing
information within 10 (ten) days (arts. 7, inc.
I, of Law No. 1533 of 31.12.1951 and 203 of RISTF).
Determine the Secretariat to draw copies of fls.
375-378 (decision of Celso de Mello) and fls.
380-388 (Information Ministry) of
proceedings of the ACO No. 840, adding them to these proceedings.
Next, give yourself for the PGR (art. 103, § 1 of the Constitution, and
52, inc. IX, RISTF). "(MS 25.853/DF, decision
monocratic, Rep. Low Cezar Peluso, DJ 9.3.2006)
It should be noted that the plenary is not stripped
second injunction suspending the effects of the first, but
decided to put together the made in the same referees in
Case summarized as follows:
"Writ of security against an act of the Minister
Supreme Court: uniqueness of the case, which
leads to the assertion of jurisdiction, prevention,
Rapporteur of the writs of mandamus 25,846 and 25,853. "
(MS 25,846-QO, red. To Case Min Sepúlveda
Belongs, DJ 14.9.2007).
In this case, I believe that this controversy
exceptional conditions that justify the pertinence
this injunction, pursuant to previous
above.
Indeed, the impugned act is final and not
There expeditious remedy to overcome the situation of serious damage
the petitioner.
The jurisprudence of the Supreme Court is
firm to be unreasonable to the use of grievance
regimental court decision that upholds or rejects
application for an injunction in place of habeas corpus (cfe. HC
94,993 MC-AgR/RR, Rep. Celso de Mello, Full, DJ 13/2/2009;
91,927 AgR HC / MG, Rel Eros Grau, 2nd Class, DJ 17/4/2009;
HC 93.531/SP, Rep. Menezes Direito, 1st Class, DJ 30/5/2008;
HC 93,494 MC-AgR/PR, Rep. Eros Grau, 2nd Class, DJ
25.4.2008; HC 89,837 MC-AgR/DF, Rep. Celso de Mello, 2nd
Class, DJ 16/2/2007; 89,649 MC-AgR/SP HC, Rep. Cezar
Peluso, 2nd Class, DJ 1 º .12.2006).
Not being viable any judicial or
administrative, the injunction sets ideal way
to challenge the decision monocratic under Precedent
paragraph 267 of the STF.
It should be emphasized on strengthening the
exceptionality now appeared that the Supreme Court
Federal has voiced more than once on the subject of
impetration bottom of this, whether in habeas corpus No
99.945/RJ (decision singular) is in the midst of the referendum
precautionary measure in ADPF No 172/RJ (decision sessions),
whose decisions became the need for compliance
ordinary way as a rule essential to the proper
disentangling the dispute in question.
So, I know the impetration.
Envision the presence of the requirements for
granting the preliminary injunction in this writ.
There is evidence as inadequate means of
habeas corpus to turn over a matter of fact already
decided by court and ruling on the merits and to serve
as a substitute appellate.
It is, also, the existence of decisions
previous STF pointing to the need for effective
attainment of the merit and impropriety
legal legal action followed causing turmoil
procedure.
I also emphasize that the new fact on the
Case in Federal Court of Appeal 2nd Region of 16.12.2009,
enhances the understanding of the inadequacy of habeas corpus
appeal, and not the reverse, as it concludes in
opposite direction to all claims to the contested decision.
In short, it was pointed out here that the fundamentals
authorize the granting of this injunction:
(1) peculiarity of the case have already been discussed,
explicitly, by the Plenary of this Court (in
ADPF No 172/RJ), with clear expressions in
sense of compliance rather than decided by the way
shares;
(2) impetration decided that the identity status
HC contained in paragraph 99.945/RJ (STF) - pending
feature since August 2009 - in which he refused
up to habeas corpus because this
it unreasonable to review facts and evidence and to serve
reform as a means of making merit;
(3) absence of proof of illegality or
abuse of power required for the granting of
injunction upheld the habeas corpus now
appeal;
(4) inadequacy of narrow habeas corpus
to the revolving of facts and evidence, as
jurisprudence of this Court;
(5) inadequacy of the path chosen as a substitute for
appeal, as the jurisprudence of this Court;
(6) existence of sentence and above, which define
on the legal merits of the case, with
determination of immediate delivery of the minor SRG
the biological father and the troubled turmoil
procedure shown in the records.
The act attacked, thus, is not supported
the jurisprudence of this Court.

Non-compliance with the jurisprudence of the STF
First, there is an explicit manifestation of
Plenary of this Court, particularly in the trial of the votes
referendum injunction in ADPF No 172/RJ, strengthening
strongly to the impossibility to discredit what
decided by the ordinary means, especially through
various procedural measures that distort the process
determined based on the Hague Convention of 1980, as
apparent in this case.
Minister Marco Aurelio, rapporteur on the case,
granted an injunction in that ADPF on 02 June
2009, based on a general power of caution to
suspend the interlocutory injunction upheld the sentence of
process of search, seizure and return of the minor SRG.
On that occasion, the Minister Marco Aurelio
said, including on the basis that decided the HC No
69.303-2/MG, the following: the "irreversibility of
psychosocial effects that the comings and goings could
cause [...]", "imposing the child support within
family where it has been for almost five years
[...]", "Without entering, for now, the hit or the mismatch between
long and careful decision made by a judgment - of 82
pages - are considered the key of the Federal
and even the framework of the case exceptions
contemplated in the Convention of The Hague, I DEFER
injunction seeks. Suspend, submitting to this act
Plenary, the effectiveness of the aforementioned sentence. "
Thus, it granted the preliminary injunction that suspended the
award of merit, understanding, in short, non-existence
sufficient legal certainty to the acceptance of guardianship
anticipated.
However, in referring the matter to referendum
the plenary of the Supreme Court, the Minister rapporteur reviewed its analysis
about the knowledge of that ADPF, noting that
only granted the injunction to safeguard the situation
time was clearly urgent. Thus, the trial itself
the referendum of the injunction, the Minister rapporteur
recognized not no place of action referred to the case.
It is important to emphasize here that the collegiate
this Court at that time, took extensive knowledge of
case now discussed, even under the limits of discussion
no place of that ADPF, with various manifestations of
strengthening the impossibility to discredit what
decided in the ordinary way.
This attitude is explicit in the hope
several ministers of this Court, in relation to the trial
referendum injunction in ADPF No 172/RJ, occurred
on 10.06.2009. In this trial, the Full Bench of
based, unanimously: (1) the existence of other means
suitable legal action to combat judicial appeal, (2)
the exceptional nature of the allegation of breach of
tenet, and (3) their unsuitability for the case
with prejudice the consideration of the measure earlier cautionary
accepted.
It is noteworthy, for example, the brilliant vote
Justice Ellen Gracie, to clarify the validity of
Hague Convention of 1980 in Brazil and the need for their
with swiftly by the courts and
Brazilian administrative:
"The commitment of Member States in
multilateral treaty, was to establish a system
international cooperation, both administrative
by central authorities and courts.
[...]
The Convention also recommends that the procedure
review of such claims is made extremely quickly
and a matter of urgency in order to cause the 'minor
possible damage to the welfare of the child.
[...]
Unfortunately, the case underlying the present
claim of breach of fundamental precept,
neglects all these recommendations. By
ignorance of the text of the Convention, the Court
State of Rio de Janeiro was induced, repeated
times, to provide for the case that runs entirely on
jurisdiction. With this and the sequence of resources and
defensive measures of either the case extends
beyond all reasonable.
[...]
And as news of Solicitor-General of the Union
his memorial, already appear to have been submitted to the TRF -
2 at least three different instruments
containment of effects of the sentence now under attack: a
habeas corpus, an injunction action and a warrant
security.
[...]
In a sense, in my view, borders on the absurd when
try in place of concentrated control of
constitutionality, demonstrate the accomplishments of
conclusions of the expert report of psychological evaluation
reasoning used in the demonstration Operative
screen. What is evident, therefore, is the claim
renewed discussion and reform of the trial, not the
demonstration of the failure of rules
fundamental. "(emphasis added)
The Minister also asserted Ricardo Lewandowski
in their vote no obstacle to the processing of the issue by
ordinary way, to emphasize that:
"[...] The judicial machinery is working
perfectly and there is no point, in my view, that
Supreme Court to intervene in the action, at least in
procedural time. "
And in the opinion of Justice Cezar Peluso, also
consisted of the following:
"It seems to me, Mr President, with due
regard that act of public authority, here, can not
be understood as any judicial decision
subject to appeal - like the case - that for several
reasons.
[...]
In addition - and this is another reason for
inadmissible, Mr President - is that another
intelligence would undermine the whole legal order
procedure, allowing to bring directly to this
Court, without observing the degrees of action, causes
that do not fit in the original jurisdiction of this Court and
which are offspring of the constitution.
[...]
Here I limit myself, let's say, more specifically
a fundamental reason that extinction at the outset
process, notwithstanding any appeal against
sentence - not confirmed, but granted after
a full cognition of the cause, the anticipation of
protection - does not suspend: the case is and
found effective procedural remedies. "
(emphasis added)
As proof of the inadequacy of the procedural step
the reform of the award of merit, it is notable that the
decision was taken by unanimous vote.
Despite this understanding, signed on 10
June 2009, the contested injunction upheld
foundation in fact removed by ordinary proceedings in
no need for special hearing for the minor SRG, by
no expert opinion, to suspend the execution of no more
sentence, more serious, the ruling that upheld the Federal Court of
2nd Region.
If, at that time, this Court was confronted with
discussion of the ADPF no place in relation to challenging
sentence, which is to say, now, where there judgment
TRF handed down by the 2nd Region, which examines, in broad
cognition, all the elements of fact and law and the underlying
correction of sentence on the grounds, to require
including the postponement of non-compliance
consequences set out in that treaty (of
repatriation of the child).
It is important to consider, including the ruling
TRF of the 2nd Region became the setting of retention
illicit minor S.R.G. under treaty
international. The legal repercussions, political and social --
especially internationally - is extremely serious.
Thus, there is no denying the illegality of the conduct of
maintenance of the child in the Brazilian state.
Moreover, one can not forget that this Court --
particularly because of the role it plays in planning
Brazilian legal system - has based its position plenary
repudiating the postponement of court proceedings by way of
merely dilatory measures - including actions
constitutional - used as a substitute appellate,
as seems to show this case.
To make clear, once again
illegitimacy of the injunction being challenged, simply
confront the reasons for granting the relief
order passed at the time by the Minister Marco Aurélio
under the ADPF No 172-MC/RJ, with the arguments put forward
the granting of the HC No 101.985/RJ, also the rapporteur,
at present.
From a simple collation analytical
notes that are used exactly the same
arguments, namely: support as decided in the HC No
69.303-2/MG this Court; doubt as to whether
need for the will of the child;
possibility of reversing the decision on the merits (or sentence
above) by the appellate own way, and doubt about the
unlawfulness of the conduct of child maintenance by the
maternal family (Brazilian).

However, it is seen that, in short, take as premises
arguments of a factual and legal system that already
were so insightful, collate and valued as
the sentence, as the ruling of the Federal Court of the 2nd Region.
Seated legal certainty, particularly in relation to
assumptions of fact, there is more to challenge them through
ordinary, perhaps through extraordinary.
It is what is evident in the demonstrations brought
Minister Marco Aurelio on issues of fact and
evidence pointed both at the trial of ADPF, as in
trial of HC No 101.985/RJ when he says this
Finally, that at no time, the child was heard,
directly by the body vested with adjudicative office,
despite the insistence of defense in achieving that goal.
The ruling by the Federal Court of the 2nd Region is expressed in
appearance:
"In the case remains unclear, the report contained in
expert, the minor is not able to decide on the
you really want, is the limitations of
maturity inherent in their youth, either by
fragility of their emotional state, is also
because she is now undergoing the process of
parental alienation by the Brazilian family.
No reason, therefore, the appellant, to the extent that the
legislative provision makes the possibility of
take into account the views of the child to the effective
demonstration that it has discretion to
both, which does not occur in this case, the line
of which concluded that the expert report. "(emphasis
added)
At this point, there is no way derived from that
above, especially in the narrow path of habeas corpus,
any demonstration of illegality or abuse of power --
necessary to grant the injunction. Even if
implication with respect to right or wrong of the technical report or
negative of evidence (via personal statement), then
can not see any illegality decision
reasoned, based on expert evidence, it is notable,
performed by an expert, based on full cognition
merit.
It should be noted that everything is argued through
habeas corpus, in this case, results in inadequate means
elected, because it is not an appropriate measure for the resolution
issues.
Similarly, there was a petition of habeas
corpus in the Supreme Court (HC No 99.945/RJ) in
July 2009, in which he reiterated the arguments about
be the appropriate way of habeas corpus to ensure the
patient the right to "stay" in the territory
Singapore, correcting the illegality characterized by
error in analyzing the factual question (unnecessary to hearsay
the minor by personal testimony and the imprestada
result of expert opinion) made by the Judge of the 16th
Federal Court of the Judiciary Section of Rio de Janeiro.
On July 29, 2009, the President of this Court
refused to follow impetration, as follows:
"The way of habeas corpus did not show
appropriate to the purpose pursued by the petitioner,
fitting follow-up to deny impetration.
It is true that habeas corpus, although
bearing predominant nature of procedure
protection against arbitrary decisions in criminal matters and
criminal procedure, also serves to correct acts
attacks on freedom of coming and going of stamp
purely civilian, as is the case of the civil prison
depository untrue, provided that in any case,
glimpse is blatant illegality or abuse of power.
Accordingly forwards to
majority of the court case, may be
collating the following excerpts:
[...]
Therefore, absent hypothesis of illegality or
abuse of power, any dissatisfaction with the sentence
what remains unfavorable to the interests of the family
petitioner should be discussed in the ordinary way and
the means and remedies provided for in procedural law
civil.
Based on the foregoing, I deny the following
impetration under art. 21, § 1, RI-STF.
(emphasis added).
There bringing injury to reform the
Decision still pending in this Court, it is notable,
since August 2009, without any trial of
action by the body.
And strongly to the case in question,
affirmed the inadequacy of habeas corpus for revolving
facts and evidence and the existence of unfounded nonconformity
the petitioner to ensure, through this action
constitutional exception, to uphold the interests of
Brazilian family, which were rejected in the divorce
merit.
This position even remained in
According to the view given in two habeas corpus
that preceded it, a TRF in the 2nd Region and one in the STJ;
all saying the impropriety allegations of fact,
evidence and retirement decision on the merits as
characterizing the illegality or abuse of power.
In this sense, it is stressed that, in itself no HC
99.945/RJ above, there were explicit mention of the backwaters
jurisprudence of the Supreme Court on this issue:
"MENU: - Habeas corpus. Custody of minor. 2.
Indication of the Superior Court of Justice as
constraining authority. 3. The aim is to ensure that,
this path to the lowest "the right to remain in
United States with her mother and sister,
integrated into the family unit to which the infant
owned for more than three years. "4. Habeas corpus not
substitute action is appropriate, it is not, by this
half of you the solution of the question on the
custody of children. 5. The quaestio case is already
submitted to the judge in the competent court
proceedings. Matters duly analyzed Judge of the 7th
Family Court and Probate of the Central Jurisdiction of Porto
Alegre-RS. 6. Habeas corpus is not known. (HC No
81.681/RS, 2nd panel, Rep. MIn. Neri da Silveira, DJ
of 29.08.2003).
MENU: CRIMINAL. CRIMINAL PROCEDURE. HABEAS CORPUS.
Custody of children. I. - Habeas corpus not
lends itself to decide question relating to the custody of
children, a matter to be dealt with in civil court. II. --
H.C. not known. (HC No 75.352/CE, 2nd panel, Rep.
Low Carlos Velloso, DJ 18.06.2001).
Chuck Caspari
Administrator
BringSeanHome.org

Offline Chuckles

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Re: Google translation of Mendes decision - David
« Reply #1 on: December 22, 2009, 08:46:18 PM »
HABEAS CORPUS IS NOT THE PROPER MEANS TO APPRECIATE THE
SETTING A sentence that grants search and seizure of
MINOR. CONSTRAINING JUDGE OF FIRST DEGREE. AGRG
IMPROVIDO. (HC No. 60,482 AgR / RJ, 2nd panel, Rep. Min
Cordeiro Guerra, DJ 12.11.1982).
HABEAS CORPUS. SEARCH AND SEIZURE OF MINOR. MATTERS
SCOPE OF THE STRANGE "WRIT". LACK OF JUST CAUSE
For criminal action. Impetration DISABLED
INSTRUCTED. RESOURCE NOT PROVIDED. (RCH No 53.457/RJ,
1st Class, Rel MIn. Rodrigues Alckmin, DJ
03.06.1975). "

Therefore, there is no doubt that the case related to
action of search, seizure and return of the child SRG to
his biological father has already been considered by this Court of
consistently, both times above
(ADPF No 172/RJ and HC No 99.945/RJ), which sought
unduly revolving facts and evidence and reform
the award of merit in relation to the factual (the hearsay
smaller and expert opinion).
Non-configuration of illegality or abuse of power able to
granting the injunction in habeas corpus
After all the manifestations of STF up already
mentioned, which showed the way as the ordinary
legitimate way for discussions on the merits of the case
(including the validity of the expert report and
need for personal testimony of the child), is filed
new habeas corpus (writ in this attack) before the Supreme Court, with
the following reason:
"It argues that the petitioner, despite the appeal
the proper appeal against the sentence, is the effective
risk to refer the patient to the United States of
America as a result of the appeal trial, the
be held tomorrow, December 16, 2009, by
Quinta Turma do Tribunal Regional Federal da 2 ª
Region. Reiterates, then the argument of illegality
perpetrated by the federal judge, rejecting the
collection of the testimony of the child, considered the
Article 13 of the Hague Convention, Article
12 of the Convention on the Rights of the Child and the
subsection II of Article 16 of the Statute of Children and
Adolescents. Says being in the right game to come and go
the patient, which is why it has permitted
the impetration it is essential providence
injunction against the fact that the decision of the
President of the Supreme has been the subject of grievance
Rules of Procedure, pending assessment.
Calls to grant an injunction in order to avert,
until the final adjudication of impetration, the
compliance with the court order related to
delivery of the child (sheet 33). In substance, claims the
recognition of the wrongfulness of that act, taking into
account the fact that it was not collected the testimony of
child. "(pages 29-30 - emphasis added)
In fact, 16.12.2009, came the Case
TRF of the 2nd Region, which partially upheld
the appeal of J.P.B.L.L.S. only to reform the supervision
early before accepted.
But the previous ruling upheld the sentence of
merit in all of its terms, except the way
would be granted custody. Thus, the instances
common defined the merits of the lawsuit, determining the
occurrence of unlawful retention of minor and failure
international treaty, as well as ensuring the validity
the expert report and unnecessary to the child hearsay
S.R.G. (for depositions), as found in your
inability to decide what would be best for you.
The ruling mentioned all away
Preliminary Appeal and maintained the following grounds
the sentence: (1) inadequacy of the claim of invalidity of
sentence for obstruction of defense, imprestada of
expert opinion and the right of custody under that
appeal, (2) verification of the legal situation of illegality
(Article 3 c / c art. 15 of the Hague Convention of 1980), (3)
no exceptions to the repatriation of the conventional
less SRG, (4) finding of unfitness of the expert
child in deciding what you really want.
Thus, there were two major changes in
decided in relation to the sentence.
First, repealed the regime of
transition (because of the visitation agreement set in STJ --
CC No 100.345/RJ).
At this point, it is essential to emphasize that
decision from the Supreme Court in the conflict of jurisdiction above
ensures a visitation agreement between relatives
Brazilians and Americans, evidencing the guarantee
fostering continuity of family relationships.
This is expressed in the Case of the TRF
2nd Region:
"On the other hand, unnecessary fixing scheme
transition, because the possibility of coexistence
the child with her biological father is
ensured, since 09 from February 2009, under
dc visitation agreement signed within the Superior
Court of Justice in Conflict Competence No
100.345/RJ, allowing ever since upgrading to
society of his parent "
Secondly, have changed the other
effects of legal protection granted in the sentence,
for, in essence, "set to the appellant within 48 hours
voluntary submission to the said minor to the Consulate
American in Rio de Janeiro.
It is against the previous ruling that the filed
No habeas corpus 101.985/RJ here appeal, which had
injunction granted, based on the following arguments:
(1) adequacy of the path chosen in line with the
previous paragraph HC 69.303-2/MG this Court;
(2) pending the trial of injuries
HC regimental mentioned in paragraph 99.945/RJ;
(3rd) the ruling on appeal is subject to appeal;
(4) the case involves "child in time
some, was heard directly by the national
vested with adjudicative office, despite the
insistence of defense to achieve that goal, "
and that the child would be entitled to both;
(5) lack of international kidnapping
children in the case.
I stress once again that all these issues
were alleged, but refuted in all habeas corpus
previously filed and referred ADPF (always
identified as incabíveis for discussion in the path chosen)
including in relation to the HC No 99.945/RJ, who deal in
Court.
It should be noted, therefore, the lack of demonstration
any illegality or abuse of power in the act attacked, which
against two decisions of merit in the main
(sentence and ruling of the TRF 2 ª Região). Not the case,
or implicitly, a statement of requirements
mentioned and seems to be completely unreasonable to the HC No
101.985/RJ.
In the decision of the HC No 101.985/RJ, you invoke
trial of HC No 69.303-2/MG (STF, 2nd Class, DJ
02.12.1992) as a basis that would legitimize the adequacy of
path chosen. However, this assertion does not hold, because it
discuss factual issues distinct. Harvest in the vote
driver of the HC Case No. 69.303-2/MG, verbatim:
"[...]
At age enabler of reasonable understanding of
troubled paths of life, they have the right
to be heard and having considered the views
regarding the whereabouts of this or that locality
this or that family environment, alfim, and
Consequently, to remain in the company of this or
that up, once nonexistent moral grounds
that remove the reasonableness of the definition. Sets
illegal constraint determination to,
peremptorily, as if things were, re -
given location, aiming to stay under
custody of a parent. The right not to this
overrides the requirement that the holder must
preserve the formation of the minor, that the wording of Article
227 of the Federal Constitution targets
priority. Granted the order to lend to
consent from minors - to remain
the residence of her maternal grandparents and the company of
and own mother - greater efficiency, surpassing
definition of the guard who always has on color and
therefore, possible to be changed as soon as
prevailing circumstances require. (Second Class
- Editor for the ruling, Justice Marco Aurelio
published in the Journal of Justice of 20 November
1992). "

There are several reasons adopted in
mentioned decisions. In Case taken as a paradigm, the
court was faced with a dispute in which the prestigious
stage of cognition the interest of parents, deciding by
need to guide the decision in the interests of
smaller. The criticism of the process that ran in
ordinary instances was that minors were not
never considered and it was of prime value for attack
the legal relationship between spouses.
Obviously, this is not the case here, where
while investigating the child's interests received proper
consideration, including the realization of expertise in order
identify conditions would have to decide what you want.
Moreover, the contested decision must not take into
account the factual and legal identity that motivated
HC decision in paragraph 99.945/RJ that, in short, treated
the same controversy, including from the point of no place
action constitutional. Mentions only the existence of
grievances filed in HC, pending consideration by the
STF.
However, it is noteworthy that the aforementioned
grievances were filed in August 2009 and were not
brought to trial to date. Habeas corpus
challenged these injuries turns against the decision already
not subsist in the face of delivery, including
new grant of injunctive relief. In addition, there have already been
that HC No 99.945/RJ opinion of the Attorney General
Republic, dated October 08, 2009, by opining
dismissal of the disease.
Thus, it appears that the grounds
adopted in the HC No 101.985/RJ in granting the injunction
not demonstrate the occurrence of any illegality or
abuse of power. There's even an assertion that, even
implicitly, point to the presence of such requirements.
On the contrary, there is a mere reiteration of
grounds rejected by the House in the grounds of
ADPF No 172/RJ, giving shelter to procedural expedients
inappropriate to delay the processing of regular action
search, seizure and return of the child.
Secondly, it lacks plausibility
legal, for the purpose of granting an injunction in
habeas corpus, the law relating to the possibility of
appeal against the ruling on appeal.
The existence of reasonable resources or pending
trial in this case does not establish any illegality or
abuse of power. In fact, no decision on the merits of all
instances shares, which sets a uniform
demarcation of the controversy, though contrary to
interests of the petitioner, HC No 101.985/RJ.
It is possible that the handling of habeas
corpus, as there are effective means to achieve the effect
suspension of the ruling by the appellate process and ordinary
extraordinary.
Moreover, if there is no possibility of granting
suspensory effect, the determination that the consequence of the
Brazilian legal system is the immediate compliance
decisions, whether in civil harvest, the harvest is criminal.
Thus, in all aspects analyzed, We conclude
the inadequacy of the narrow path of habeas corpus for
review of evidence and matter of fact the case, not
serve as a substitute for habeas corpus appeals in
line with the settled case law of this Court (HC
75.352/CE, Celso Carlos Velloso, 2nd Class, DJ
18.5.2001; 81.681/RS HC, Min Neri da Silveira, 2nd Class,
DJ 28.8.2003; 73.261/PR HC, Min Carlos Velloso, 2nd Class,
DJ 10.5.1996; 83.115/SP HC, Min Carlos Velloso, 2nd Class,
DJ 18.3.2005; 91.155/SP HC, Min Ricardo Lewandowski, 1st
Class, DJ 10/8/2007; HC 80829th - Maurício Corrêa, 2nd
Class, DJ 24/8/2001; HC 74006th - Celso de Mello, 1st
Class, DJ 27/8/1996; RHC 93248th - Minister Ellen Gracie, 2nd
Class, DJ 22/8/2008; RHC 83625th - Minister Ellen Gracie, 2nd
Class, DJ 30.4.2004; HC 98732-AgR - Minister Carlos Britto, 1st
Class, DJ 21.8.2009).
Obviously the turmoil resulting from the procedural
impetrações of habeas corpus and other measures
inadequate procedures, such as rebound here soon
account of the major events procedural
prior to this writ, which focused on the
exceptionality of the case.

The turmoil in procedural compliance with the action of seizure,
Search and return the child S.R.G
The patient HC No 101.985/RJ, challenged this
writ of mandamus, is the smallest S.R.G. - Son of the citizen
Brazilian Bruna Bianchi Carneiro Ribeiro Lins e Silva and
U.S. citizen David Goldman - born
25.05.2000, the State of New Jersey (USA), with records
the Brazilian Consulate in New York (USA) and the 1st
County Civil Registry of Natural Persons in the Isle
Governor, Rio de Janeiro, and has thus
Brazilian nationality.
In 2004, Bruna traveled to Brazil bringing
SRG, with permission of the father for the holiday.
However, here decided to separate from him, filed a
divorce that led to the end of the marriage.
In the same year, the biological father, David Goldman,
filed a first action of search and seizure of the child
against Bruna (Case No. 2004.51.01.022271-9), which
mired originally before the 6th Circuit Court Section
Judicial Rio de Janeiro, and later before the
6th Specialized Panel of the Federal Court of the 2nd Region.
Against the ruling was lodged
No Special 900.262/RJ before the STJ, the 3rd Panel for
Most did not know the appeal because of obstacles
procedure. Then an appeal
extraordinary, not admitted. Against this decision interpôsse,
before the Supreme Court, the Bill of No. 728,785, which
was deemed impaired by the rapporteur Minister Marco Aurelio
on 15.06.2009, due to the supervening death of
worse, the mother. The question hangs in the worsening of trial
regimental.
In mid-2005, Bruna began relationship
with Joao Paulo Lins e Silva, contracting marriage in 2007.
However, he died on 21.08.2008, after giving birth to her
C. daughter, born of her relationship with John Paul.
On 28.08.2008, João Paulo Lins e Silva filed
declaratory action of socio-affective father, combined with
possession and custody of the child before the judge of the 2nd
Family Court of the Central Court of Rio de Janeiro. The
requests were granted.
After being provoked by the Central Authority
Federal Administrative (ACAF) - the body responsible for making
observe the Hague Convention in Brazil and that, in turn,
was triggered by the corresponding organ in the United States
- The Union, 26.09.2008, requesting the search, seizure and
return the child before the 16 th Federal Section
Judicial Rio de Janeiro (Case No.
2008.51.01.018422-0).
Then was raised before the Superior Court, the
Conflict of Jurisdiction No 100.345/RJ between the Last
Federal 16 Federal Court's Section of the State
Rio de Janeiro and the judge of the 2nd Pole
Family Central Forum of Rio de Janeiro / RJ. A
exceptionality of the case also proved in those proceedings,
as it turns out the appointment of hearing
attempt at conciliation between the parties for the day
06.02.2009, in the courtroom from the Supreme Court (decision of
rapporteur Minister Luis Felipe Solomon Dje of 11.12.2008).
In substance, the 2nd Section of the STJ, the unanimity
declared the jurisdiction of the Federal Justice of the 16th Civil Court
the Section of the State of Rio de Janeiro to
process and decide the two cases (CC 100.345/RJ, 2nd
Section, rel. Min Luis Felipe Solomon, DJ 18.03.2009).
The regular process was underway, with completion
expertise to investigate the psychological conditions of
smaller. On 1 .06.2009, was given a favorable decision to
biological father, David Goldman, and accepted the anticipation of
trust, to determine the "immediate return of the smallest (...)
the United States of America ", by fixing the date of
03/06/2009 for the submission to the spontaneous
U.S. Consulate in Rio de Janeiro or, alternatively,
dispatch of a search warrant and seizure.
Not satisfied with the award of merit in action
search, seizure and restitution, João Paulo Lins e Silva,
defendant in that case, filed an appeal. As the appeal was
received in a purely formal effect, was brought
bill of review before the Federal Court
of the 2nd Region, which upheld the Rapporteur anticipation of
appellate protection to immediately suspend the delivery of the child.
Came the internal grievance party, whose
trial started on 30.06.2009. The Rapporteur voted for
dismissal of the appeal, holding that the decision suspending
the delivery of the child for referral to the United States of America
of America, and Judge Cruz Netto voted for partial
Dismissal of grievance procedure. The trial remained suspended
due to application of view of Judge Castro Aguiar.
Vote of the Minister Marco Aurélio at ADPF 172/RJ,
extracts that was filed the writ of mandamus No
2009.02.01.008575-0 before the Federal Court of the 2nd Region, which
came to "grant an injunction to the period of transition
- Adaptation of the new lower living - not to occur
United States of America, but in Brazil, as
recommended by the prosecutor.
In addition, before the order for the child
Consulate of the United States of America in Rio de
January, was filed the Habeas Corpus No
2009.02.01.008630-3 before the Federal Court of the 2nd Region. Petition
was initially rejected by decision confirmed
subsequent trial of tort law, as the following
Syllabus
APPEAL PROCEDURE - HABEAS CORPUS - ACTION FOR RELIEF
SEARCH AND SEIZURE OF MINOR - CONVENTION ISSUES
THE CIVIL International Child Abduction --
INADEQUATE ROUTE - REFUSAL OF CLAIM
THE WRIT.
- As a rule, it is unacceptable to the management
habeas corpus as a substitute for appeal
procedurally appropriate (STJ, AgRg the HC No
74.920/SP, 26,705 HC and HC37. 704/SP), accepting the
impetration the writ only in cases where it is
checked the obvious illegality of the act attacked.
- Situation in which there remained configured such
exceptional, given that the narrow
habeas corpus does not allow, in this case, the verification of
occurrence of the alleged error in proceeding, because,
to do so would require extensive tilling of the
matter-factual evidence.
- Further internal IMPROVIDO.

Immediately thereafter, be filed before the Superior
Court of Justice, the Habeas Corpus No. 141,593, which
injunction was rejected by the Minister in Laurita Vaz
10/07/2009, as follows:
"Notwithstanding the arguments brought in laborious
appointed on the initial error in performing the
learned judge of first instance, do not check,
prelibatório this court, the possibility of disentangling
controversy in the narrow path of habeas corpus,
, as is well known and ubiquitous, is not consistent with the
extension evidence, apparently needed
whether, after all, was observed or not [sic] the
child's rights in the contested decision in court
proceedings.
It must also highlight the lack of urgency of the request
injunction in impetration deducted to the extent that
as noted the initial decision authorizing the exit
child of the country is suspended
determination of the Regional Court.
Based on the foregoing, INDEFIRO the preliminary injunction. "(Emphasis
added)
Against this decision was the filing for new
habeas corpus in the Supreme Court (HC No
99.945/RJ), reiterating the arguments about the pertinence
of habeas corpus, in order that the patient would have the
right to "remain" in the Brazilian territory.
Also against this sentence was filed on
No ADPF 172/RJ the Progressive Party. The rapporteur
Minister Marco Aurelio, on June 02, 2009, granted
injunction in that ADPF, based on the general power of
caution in order to stay ahead of the protection
given the sentence of the search, seizure and
return the child.
Thus, it appears that the issue has been
widely discussed, which shows that the habeas corpus
not an appropriate measure for reviewing the ruling of the Federal Court of
2nd Region.
Regarding the risk of harm in arrears, the petitioner
demonstrated that the repeated failure of that decision
by ordinary means is compromising the rule
Brazilian and the regular meeting of the Convention
Hague 1980, including the information already there
petition with the Inter-American Court of Human Rights,
in relation to this case, which could have serious
penalties to Brazil.
At the same time, shows the occurrence of damage
Conversely, to the extent that the petitioner demonstrates the high
possibility of adverse effects and multiplier
maintenance of the contested decision in relation to other
Brazilian citizens who use the Treaty to
claim international judicial assistance - which
may be denied by other countries, given the relevance of
principle of reciprocity as a vector interpretation
central in these cases.
From all the above results:
a) that it was ruling and award of merit in
file the action of search, seizure and return of the child and
that the jurisprudence of this Court has already settled in ADPF No
172/RJ and HC No 99.945/RJ compete to instances
ordinary resolution of the case;
b) that the act attacked in place of habeas corpus not
show any illegality or abuse of power,
restricting themselves to attack the factual contours defined
instances by shares;
c) that the only change in the factual context, since
the trial of ADPF No 172/RJ and HC No 99.945/RJ was
delivery of the ruling in favor of the Union, keeping the
merit determined by the sentence;
d) that the ruling of the Federal Court of the 2nd Region became
that under the trial of CC No 100.345/RJ (STJ)
ensures a visitation agreement between relatives
Brazilians and Americans, securing the promotion of
continuity of family relationships.
It is therefore the inadequacy of means of
habeas corpus to turn over a matter of fact already
decided by court and ruling on the merits and to serve
as a substitute appellate.
Demonstrated the peculiarities of the case that
evidence his exceptional character, fit, give rise to the
no place of this measure as the only means of suitable
reversal of the decision in this moment and
found the absence of unequivocal evidence of
requirements authorized to grant injunction
in habeas corpus, it is prominent to the acceptance of this
injunction, because these requirements periculum
in arrears and a prima facie iuris.
Based on the foregoing, Defiro the request for injunction
halt the effects of the injunction issued by
Relator HC No 101.985/RJ, Supreme Court
Federal, restoring the effects of the decision given
Federal Regional Court of the 2nd Region in the Appellate
Civil Action No. 2008.51.01.018422-0.
Communicate with urgency.
Attached to these records to the warrant
Security No 28.524/RJ.
Published.
Notify the constraining authority, so
provide the information within the statutory period.
Next, give yourself to examine the records to the Attorney General
Republic.
The claim of the petitioner's examination of the records
HC No 101.985/RJ (fl. 18), note the absence of
periculum in arrears, due to the acceptance of this
injunction. Wait is the expedient return of forensics.
Brasília, December 22, 2009.
Minister GILMAR MENDES
President
(art. 13, VIII, RI-STF)
Chuck Caspari
Administrator
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