The conduct of those suspected of acting in one can be classified as crimes against democracy, according to 4 out of 5 experts in criminal law interviewed by the Sheet.
There is, however, a divergent current that understands the suspects’ actions as merely preparatory acts, which would lead to their conduct not being punishable in the criminal field.
Mainly under debate are both using violence or serious threats.
According to the investigation by , a coup plan that even predicted the death of , then elected president, his vice, Geraldo Alckmin (PSB), and , minister of the (Federal Supreme Court) and then president of the (Superior Electoral Court), was prepared by retired general Mário Fernandes.
The plan would have been put into practice after a meeting at Palácio do Planalto on December 6, 2022, at the end of (). The preparation lasted nine days and involved the purchase of disposable cell phones and monitoring Moraes’ location, according to a PF report.
For investigators, the arrest of the STF minister was organized for December 15, 2022. The execution of the plan ended up being aborted on the night of that day, with soldiers from the 1st Army Commando Action Battalion, from Goiânia (GO), ready to carry out the attack in Brasília, according to the PF.
Lawyer Maurício Zanoide, professor of criminal procedure at USP, says that the acts described by the PF can be classified as an attempted coup d’état and an attempt to abolish the democratic rule of law.
“The investigation is demonstrating a criminal action aimed at arresting people, taking away people’s freedom in order to gain an advantage in this regard. Campaigning, monitoring, asking if we can act and establishing what will happen after the suppression of these people, This is already an enforceable act, without a doubt”, according to the professor.
For lawyer Ana Carolina Moreira Santos, professor of criminal law at Universidade Zumbi dos Palmares, the crimes under discussion are considered crimes of danger, that is, they are consummated by putting democracy at risk.
“The criminal types provide for an attempted form of crime, they are called enterprise crimes. In other words, the mere attempt already consummates the crime. In this case, based on the available information, it seems clear that the protected legal assets, the Rule of Law and the legitimately elected government, were exposed to danger.”
Lawyer Leandro Sarcedo, doctor in criminal law from USP, points out a series of behaviors that indicate that “mere preparatory acts have been overcome, and executory acts have begun.”
He cites the purchase of telephones registered in the names of oranges, access to security information, vigilance over authorities, preparation of strategic plans and legal drafts to justify future action, road trips with the purpose of carrying out preordained actions in the drawn up plan and contact with leaders of camps that did not accept the election results.
“[Isso] not to mention the acts of violence that actually occurred during that period, such as the invasion of the Federal Police headquarters, for example”, says Sarcedo.
Master in criminal procedural law, lawyer Maria Jamile José states that, “in crimes against the democratic rule of law, the legislator brought forward the moment of consummation of the crime to the attempt phase”.
“Thus, in this case, planning, organization and fundraising already constitute the crime.”
Criminal law professor Marina Coelho Araújo (Insper), who is also a counselor at IASP (São Paulo Lawyers Institute), disagrees with the other experts interviewed by the report.
For her, there are no elements to characterize the conduct as crimes.
“For now, in the decision [de prisão dos suspeitos]I don’t see that we have crossed the barrier of preparatory acts. Even in the crimes we are talking about, of attempted conduct, it is necessary that the iter criminis [expressão em latim que significa trajetória do crime] starts.”
In this case, says the professor, “these are preparatory acts that were valued based on several other processes that are not even included in this decision.”
Senator Flávio Bolsonaro (PL), Bolsonaro’s eldest son, defended the thesis that the suspects’ actions should not be classified as crimes.
“As much as it is repugnant to think about killing someone, it is not a crime. And for there to be an attempt, its execution must be interrupted by some situation beyond the control of the agents. Which does not appear to have happened,” wrote the congressman.
Minister Alexandre de Moraes states that “the elements brought to the file prove the existence of very serious crimes and sufficient evidence of authorship”.
“In addition to demonstrating the extreme dangerousness of the agents, they are members of a criminal organization, with the aim of carrying out acts of violence, monitoring targets and planning kidnapping and, possibly, homicides”, adds the STF minister.
Moraes cites, in the decision, evidence of authorship of the crimes of violent abolition of the democratic rule of law, attempted coup d’état and criminal association — which can result in up to 23 years in sentences.
