The former president () highlighted in a publication this Monday (25) one of the paths that his defense must follow to avoid punishment in the investigation into the attempted coup under investigation for which he was indicted.
In a post on X (formerly Twitter), Bolsonaro replicated a text from a prosecutor who argues that the coup plot cannot be classified as a crime under Brazilian law.
The author of the original publication, attorney Cesar Dario Mariano, from the Public Ministry of São Paulo, stated that the fact that the then elected president () had not yet taken office at the time of the events prevents the classification of the crime.
The prosecutor cites article 365 of the Penal Code, which classifies as the crime of insurrection against the State the attempt, using serious threats or violence, to “prevent or hinder the exercise of legitimately constituted power.”
“We are not talking about a legitimately elected government, we are talking about a legitimately constituted government. If the government is not legitimately constituted, there is no way to talk about a coup d’état,” Mariano told Sheet.
In the publication, the prosecutor also argues that, in addition to the need for Lula to take office, factors such as the military’s voluntary abandonment of the crime and the fact that the plan was not put into practice mean that it cannot be said that there was an attempt. concrete.
“The acts themselves, even if only planned, are heinous, but not criminal. They can constitute another type of illicit, including administrative in the military and functional scope, but not criminal illicit”, he says in part.
Lawyers in the area, in turn, analyze that the exact classification of the crime — whether it would be an attempt to abolish the democratic State or a coup d’état — and the result of the elections that gave Lula victory change the interpretation of the case.
While article 359L of the Penal Code talks about an attempt to abolish the democratic State as a whole, article 365 deals with the coup d’état and in fact mentions the need for a “legitimately constituted” government to occur.
“When we talk about a legitimately constituted government, there is no need to have effective possession in order to have this constitution, especially because having diplomacy means we can already talk about a constitution. There are those who even understand that the fact that it is already Having had a victory at the polls already brings this legitimacy to the constitution, even if he was not in practice empowered by the administration”, says the criminal lawyer and master in criminal law from Maíra Salomi.
Lula’s diploma took place on December 12, 2022, three days before the date on which the attack planned by the military would take place, according to the investigation.
According to lawyer Berlinque Cantelmo, if carried out, the crimes would collectively attack the population, and not just the authorities targeted by the action individually.
“Regardless of whether he took office or not, we already had the perspective of Luiz Inácio Lula da Silva’s right to be president. The will of the polls reflects the will of society, which in turn, reflects the will of the democratic rule of law.”
The line of thought is followed by Renato Vieira, master in constitutional law and doctor in criminal procedural law from USP, who reinforces that Lula’s inauguration in no way interferes with the possibility that there was an attempted coup.
“The attack would be carried out on December 15th. What they wanted was precisely to prevent the inauguration, and they failed. This statement from the former president makes no sense.”
Another point of divergence is the understanding of what characterizes the attempt: the prosecutor’s argument states that, for the attempt to occur, direct acts would be necessary, such as a physical threat to the minister or invasion of the Supreme Court headquarters, as exemplified.
“If he is positioned but hasn’t started the act yet, that’s preparation. It’s the same thing as a person wanting to rob a bank: they stay in front of the bank, they don’t go in. Did the robbery start? There wasn’t. The Penal Code also It says in Article 15 that, if the person voluntarily gives up on carrying out the crime, they are only responsible for the acts already carried out”, said the prosecutor to the report.
The PF points out that the mission on the night of December 15, 2022, which targeted the minister, was aborted and relates this to the postponement of a trial on parliamentary amendments in the Supreme Court.
Experts agree with the statement that planning and considering the crime itself does not constitute an attempt.
However, they state that the details and the political context in which the case is inserted mean that the preparation engendered by those involved can already be considered an attempt, and that this in itself should already be judged and penalized as a completed crime.
“We talk about execution when we are already starting this chronology of execution of facts, and this will change from crime to crime”, says Maíra Salomi.
She also states: “The crime of violent abolition of the democratic State, as well as the crime of a coup d’état, is already a crime if you try. If I start trying, it is already a completed crime.”
The severity of the crime differs from its assessment in relation to lesser crimes, according to them.
“In this specific case it was a choice of a political-criminal nature in which the attempt itself is the crime itself. In this case, the crime is punished for the attempt itself. You have to punish because later there is no way to rescue it. It makes no sense to wait for consummation”, says Renato Vieira.
