The minister’s decision to arrest the retired general reignited a legal debate about preventive arrests in Brazil and generates disagreements among experts.
The understanding on the part of the lawyers and law professors heard by the Sheet is that the reasoning used by the judge, in view of the elements disclosed so far, is sustained.
Another line contests the weight attributed to , former aide-de-camp of (), as well as the framing of the general’s conduct as obstruction of justice.
A (14) on suspicion of hindering investigations into an attempted coup d’état in 2022 to prevent the elected government from taking office.
Which would involve, according to the police, the murder of Moraes, the president () and (PSB), the PT’s vice president.
Representation sent by the PF to Alexandre de Moraes states that the general had, since August 2023, been acting to interfere in the investigations, so that there would be a risk to the case.
The police maintain that his remaining free could hamper the production of evidence, compromising not only the investigations, but possible criminal action and that there would be no way to guarantee that the conduct has stopped.
The investigators understood that Braga Netto tried to obtain confidential information about the award-winning collaboration agreement to have control over what was provided, change the reality of the facts and consolidate the alignment of versions.
Moraes’ decision considered that there was a demonstrated risk of reiteration of conduct and the progress of the process, which would justify preventive detention, in addition to evidence of authorship and evidence of the crimes of which Braga Netto is suspected.
Lawyer Celso Vilardi, professor at FGV Direito SP, understands that there was no obstruction of justice in this case and says he sees no impediment for the person being investigated to want to know a third party’s version.
Furthermore, Vilardi criticizes the use in the PF representation of information provided by Mauro Cid with the aim of financing expenses necessary for the operation.
“The arrest was ordered due to the delivery of the money and the obstruction of Justice. And it seems to me that there is no reliable proof of the money issue and it also doesn’t seem to me that there was any obstruction of Justice”, says the criminalist.
The investigations revealed contact between the general and Cid’s father, retired general Mauro Lourena Cid, and the fact that a document with questions and answers related to the agreement was found on the desk of an advisor to Braga Netto at the PL headquarters.
Gustavo Badaró, professor of criminal procedural law at , says that, in theory, it would be necessary to verify the purpose of the acts carried out by Braga Netto: changing the content of the evidence, acting to make Mauro Cid lie, say nothing or incriminate someone.
“If he was just trying to find out what Mauro Cid said or didn’t say, if Mauro Cid directly implicated him, Braga Netto, or Bolsonaro, it doesn’t seem to me that he is properly influencing the production of the test or a future test”, he says.
The use of preventive arrests —issued when the suspect has not yet been convicted, before trial and without a fixed term— generated great debate in the country’s political and legal circles in the last decade, as a result of the . In the investigation initiated in Curitiba, there were at least 130 warrants of this type, provoking criticism about abuses of this instrument.
In 2019, the requirements for enacting this type of detention were approved. Among the standards established was the need to substantiate “new or contemporary facts” that justified it. Another section established that statements by whistleblowers cannot alone justify precautionary measures, such as preventive arrests.
Professor of criminal law and criminal procedure Luisa Ferreira, from FGV Direito SP, maintains that, for preventive detention, it is enough to be at risk of criminal investigation, unlike what would be necessary to convict someone for the crime of obstruction of justice.
Thus, according to her, although there is no evidence such as a telephone interception in which General Braga Netto makes any type of request or threat, there is a risk, even if low, to criminal investigation.
“In his mind, what was he trying? In the end, did he want the content to change Mauro Cid’s version or simply to find out what was happening in the process, why is it being investigated? I don’t know, but we work with hypotheses and risks at the moment .”
Lawyer and master in law from UnB, Álvaro Chaves says that an entire context motivated Braga Netto’s preventive arrest, not just obstruction of justice, and highlights the criminal organization as Moraes’ central argument.
In the end, the minister cites precedents about the danger posed by the “agent identified as a member of an articulated criminal group”, “the concrete gravity of the crimes allegedly perpetrated” and the need to interrupt the group’s activities.
“Perhaps this is the biggest issue in the decision,” says Chaves.
