Much has already been said about bench warrant. And, after the commotion caused by the police conduction of a former president, it may seem like everything has been said. There were no shortage of articles by the most distinguished and renowned jurists to debate, analyze and criticize the momentary arrest of those who are target of the Federal Police with the skewed use of the rule of Section 260 of the Code of Criminal Procedure.

After all, it is undeniable that being taken by police to a police station confines freedom – even if it has a limited and punctual duration.

As Lenio Luiz Streck emphasized, “in one word, calling things by name: bench warrant, if made outlawed, is a prison for a few hours. And prison for a minute is already prison[1].

And Aury Lopes Jr. also masterfully points out: “Now, bench warrant is a kind of detention, for there is an undeniable restriction of one’s freedom, who is constrained in his freedom to come and go.” Before that, Aury had already noted that “more than ever, it must be understood that being present in the process is a right of the accused one; never a duty” and that “the accused one is not subject to the process and is not obliged to submit to any kind of probative act (as protected by the nemo tenetur se detegere), his physical presence or not is his option”[2].

Moreover, it is not necessary to repeat here everything that jurists have already said. The democratic origin of the Code of Criminal Procedure created under the baton of Getúlio Vargas is well known. It is equally incriminating that under Section 260 of that decree (of undeniable unconstitutionality), the bench warrant of the accused one would only be applicable after an effective preliminary injunction, but not fulfilled. In this way, it would be a typical act for criminal action, not investigation.

As Badaró[3] argues, for example, it is impossible to call the warrant of an atypical protective measure under the incurable use of a general power of caution – a concept that does not have space in the strict limits of the typicality/legality of criminal procedural law and Section 5, LIV, of the Constitution, which guarantees that no one shall be deprived of liberty or property without due process of law.

To every target of criminal justice is guaranteed the right to silence, not to produce evidence against himself, to have assistance from a defender, among others.

This is the great irony, since forcing an investigated one is also to compel him to testify when he is granted the broad right to remain silent and even absent (since, as it happens, his qualifying data are very well known).

But even so, every week we have a new phase of Car Wash; a new delation; a new freak.

Let us explain.. It is at the beginning of the academic learning that defense is taught to be in criminal process exercised in two ways: technical defense and self-defense.

Now, the questioning is an act of defense, which the Constitution says is ample and therefore impassible from interference, nor from the well-known actors of the great police operations. Therefore, forcing the respondent to testify is the remnant of obscure times.

But it seems that some want the authorities to close the curtains… As Chico Buarque would say, “The poor/Was found/Bore/More than Jesus/And yet/He moves/As proof/Galileo”[4].

How can we explain that this violence, so obviously illegal, remains untouched? The most “jabuticaba” fashion of the operations of the Federal Police does not comply with the Code of Criminal Procedure and affronts the Constitution. Not enough, it transforms the exceptional into a daily rule and makes demotivated violence a “state rule” opposed to the law.

There is no legal or even logical justification for taking targets of the Federal Police under flashes; the fantasy of lawfulness simply does not wear the bench warrant that daily occupies the headlines of our mornings.

And we must not assert that the generally national exhibit of a mere suspect has the power to protect him. But here’s the question: the central point is the exhibit.

No one denies that every accused or suspect party of a crime has the inalienable right to silence. But, as a suspect, he has no right to pass unharmed. Far from it, he is displayed as protagonist and villain. Even if the investigations can have identical success without these flashes, without those bench warrants.

However, bench warrant is a mandatory point in all operations of the Federal Police. It looks like we’re anesthetized.

It is true that the show assembled around the former president caused reaction of the legal community. But the courts still refrain from examining the issue.

On the contrary, bench warrant has been seen by many jurists almost as a “favor” of the Court. After all, the investigated one has to raise his hands to the sky: being thrown in jail, what is the problem of a car ride registered by photographers and videographers?

There is, in the Federal Supreme Court, ADPF 395, still awaiting trial. The opinion already offered by the Prosecutor Office, far from addressing the constitutionality of Section 260 of the Code of Criminal Procedure (object of action)[5], expressly acknowledges that the practice represents a “restriction of freedom”, although “less burdensome than preventive imprisonment”.

The STF has already risen (and still rises) on so many issues related to freedom, including when it is threatened by the operations of the Federal Police. It is urgent that this problem is resolved, to finally bury it deep and on land that does not allow it to germinate and grow.