Federal deputy Alexandre Ramagem (PL-RJ) is the only person indicted with a mandate in the investigation into the alleged coup d’état and, therefore, would be the only one with privileged jurisdiction among those investigated so far. This fact generated questions among jurists and lawyers about the competence of the Federal Supreme Court (STF) to judge all other indictees, such as former president Jair Bolsonaro (PL). On the other hand, there are those who argue that the issue should continue in the Supreme Court because it is related to other investigations being carried out there and because it is a constitutional issue and a case that occurred when others under investigation had privileged jurisdiction.
Ramagem, former director of the Brazilian Intelligence Agency (Abin), is cited more than 50 times in the Federal Police (PF) report, which is under analysis by the Attorney General’s Office (PGR). The PF accuses him of having used Abin to produce documents to “subsidize” Bolsonaro with “false information”, especially about electronic voting machines.
Ramagem denies that he committed any crime and says that the accusations are “narrative”. “They criminalize those who act within the law. Abuses have now become part of the system”, he published on his social networks.
The lawyer specializing in Criminal Law André Marsiglia assesses that, at this moment, the deputy’s indictment is what is justifying the STF’s jurisdiction in the case and potentially attracting the other people being investigated for a trial in the Superior Court – which, in his opinion, would be questionable. He emphasizes that initially it is necessary to analyze whether there is consistency in the indictment of Ramagem in the coup plan and find out whether there is evidence of his involvement with the others. For the lawyer, if Ramagem is not reported by the PGR, the case could not be processed in the STF and should be referred to the Court in the first instance.
“What if the PGR understands that Ramagem should not be prosecuted? Whoever is bringing the case to the STF falls apart. If he is denounced, there is a group in the STF that understands that, if there is one with prerogative, the others will be attracted to the jurisdiction of the Supreme Court. But the facts that link this person need to have a connection with everyone else”, he explains.
Lawyer Alessandro Chiarottino, professor of Constitutional Law and PhD in Law from USP, also believes that the investigation should begin in the first instance.
“Unfortunately there was this evocation by the STF [do inquérito]but the normal thing would be for the process to be carried out in the first instance and then, if there are appeals, to go up to the higher courts if there was a discussion of a truly constitutional issue”. Chiarottino reiterates that the STF is a court to judge constitutional issues, but that “it has not behaved as such”.
He assesses that the STF carried out a series of investigations on the grounds that the facts are connected, which is questionable in his assessment. “The STF, according to its regulations, can only open investigations into facts that occurred within the STF premises. This is not the case and we are seeing more legal creativity that could not be used because it would have the rules of the process that establish, for example, the natural judge. In addition to being legal, they are constitutional rules. The STF could not conduct things this way.”
Marsiglia cites the possibility that Ramagem was included in the investigation to reinforce the STF’s competence. “The ministers’ justification for keeping the case in the STF must explore that this conspiracy was fueled by social media and, therefore, has to do with the investigation into the Digital Militias and 8 de Janeiro. I believe that Ramagem is a second justification for maintaining the case with the Court”.
Another point raised is the fact that Ramagem would bring jurisdiction to the STF to judge the alleged coup, but would not give automatic jurisdiction to Alexandre de Moraes’ rapporteur. “The deputy has a privileged forum, but that does not mean that Moraes should be the rapporteur”, he assesses.
Lawyers consider that those under investigation had previously had a privileged forum
On the other hand, there are jurists who argue that the alleged coup case should remain with the STF. Acacio Miranda, a lawyer specializing in Constitutional Law, says it is easier to justify the continuation of the investigation into the alleged coup with the Supreme Court than the “fake news” investigation, which became known as the “end of the world investigation”. According to him, the PF report indicts people who, at the time of the events, were authorities holding the forum by function prerogative, the privileged forum “In these cases, the jurisdiction belongs to the Supreme Court. In this specific investigation, it is difficult for us to contradict this position. of competence”.
The lawyer explains that the determination of jurisdiction takes place when the case is opened and, even if the PGR does not file a complaint against Ramagem, the case should remain in the STF because this was already established at the beginning of the investigations. “If they do not file a complaint against Ramagem, the investigation will continue to be processed in the Supreme Court in relation to the other people being investigated.”
“In addition to the attempted coup d’état, there is an attack against democratic institutions and the institution attacked is the Supreme Court. In this context, the jurisdiction is also justified in the Supreme Court”, he continues.
The specialist in Criminal Law, legal attorney at the National Association of Criminal Advocacy (Anacrim), Márcio Berti, also says that the investigation into the alleged coup must continue in the STF, regardless of whether or not there is an indictment with prerogative of function. He evaluates the relationship of the investigation into the alleged coup d’état with investigations 4,828, of the Digital Militias, and with 4,781, of the Anti-Democratic Acts, both under the rapporteurship of Moraes.
The lawyer assesses that, if there was involvement of public agents performing functions in the government at the time of the events, the jurisdiction would not necessarily be that of a judge of first instance, even if those involved are no longer in power. “This is because the public function performed is relevant to determine competence, especially if the acts carried out resulted from the exercise of these functions or involved goods, services and interests of the Union”.
For Berti, a coup d’état, even if planned or attempted, is not a common crime and directly attacks the democratic and constitutional order, a matter essentially linked to the Federal Constitution. He mentions that article 102 of the Constitution gives the STF the competence to judge, originally, criminal actions involving political crimes. “Therefore, an attempted coup can be considered a matter directly linked to the Constitution, justifying the jurisdiction of the STF”, he describes.
What does the Constitution say about the powers to investigate a coup d’état
The Federal Constitution of 1988 does not explicitly state that the STF has the competence to investigate crimes against the Democratic Rule of Law, but in the opinion of experts who say that the processing in the Court is correct, ministers can play an investigative role in situations considered exceptional, with based on constitutional principles and its role as guardian of the Constitution.
Among the legal foundations would be the competence to prosecute and judge authorities with forum prerogative listed in Article 102, recalls lawyer Acacio Miranda. Section I establishes that the STF has original jurisdiction to prosecute and judge, in common and responsible crimes, the President of the Republic, the vice-president, members of the National Congress, ministers of State and the STF, among other authorities.
As the Constitution does not directly mention the possibility of the STF conducting investigations against the Democratic Rule of Law, ministers have used the Theory of Implicit Powers as a basis. This theory allows the Supreme Court to take measures it deems necessary to guarantee constitutional functions, including investigations into threats to the Democratic Rule of Law.
It was based on this interpretation that the STF launched inquiry 4,781, into fake news, in 2019. The justification was based on article 43 of the STF’s internal regulations, which allows the court to launch investigations to investigate crimes that occur on its premises or that involve against its institutional integrity. According to Márcio Berti, this understanding generates controversy, but has been maintained by the Court.
Lawyer André Marsiglia, who states that the issue should not continue in the STF, says that these are legal maneuvers to keep issues that should not be judged in the Court under its umbrella. He argues that the justifications cited, such as the relationship between surveys, would first require an investigation.
“It cannot be assumed, these investigations should initially be processed in the first instance until this conclusion is reached. To understand that these investigations are connected, an investigation is needed which, from what we have seen so far, has not been completed”.
What Ramagem did in the alleged planning of the coup d’état, according to the PF
The PF accuses Ramagem of using his position as head of Abin to request, receive and prepare documents that “attacked the electoral system”, “equipping” then-president Jair Bolsonaro with “strategies of attacks on democratic institutions” and electronic voting machines.
The deputy would also have suggested that Bolsonaro use the Attorney General’s Office (AGU) to publish opinions that would provide support so that the PF would not have to comply with judicial decisions of the STF, especially those contrary to political allies. “The strategy discussed aimed to confront the judicial decisions issued by the STF that could affect Jair Bolsonaro’s interests”, says an excerpt from the report.
“The evidence found proves that Alexandre Ramagem, as General Director of Abin, used his position to determine the production of illicit reports that could gather data of interest to the criminal organization with the aim of attacking the Brazilian electoral system” , warn researchers.
From the gallery of the Chamber of Deputies on Tuesday (28), Ramagem defended Bolsonaro over the alleged coup planning and defended himself against the accusations. He said that Bolsonaro always “played within four lines”, a common reference to the former president when saying that he did not act outside of what the Federal Constitution stipulates. “Bolsonaro did not accept, did not want and did not allow anything to be done against the alternation [do poder]it is very clear, there are no crimes.”
He said that these are narratives for political persecution and that the judiciary is the one committing irregularities and abuses, without mentioning Moraes’ name. He also criticized the Federal Senate. “The error lies in who should control and does not control, the presidency of the Federal Senator (…) in the democratic state, the highest authority is the parliament”.
The deputy denounced permissions for invasions of legislative powers and breaches of parliamentary immunity. “[Há] breach of the accusatory system, with a judge who is a victim, investigator, accuser, judge, an absurdity, breach of the natural judge, breach of the presumption of innocence”, he said when criticizing investigations which, according to him, are confidential for those investigated, but not for the press.
