The statement of the president of, that attacks on institutions on January 8, not an attempted coup, meets the impossible crime thesis, booked by pockets.
According to criminal doctrine, the impossible crime is one who could never be consummated by the agent, due to the use of absolutely ineffective means.
The application of the thesis has not been rejected by the majority of those, responsible for judging those involved, and is refuted by dozens of criminal lawyers.
The court has already sentenced more than 370 defendants, following the argument that the attacks were not isolated or just the expression of discontent, but acts with the purpose of provoking a blow.
Most executors – those who participated directly in the events – were convicted of the crimes of violent abolition of the Democratic Rule of Law and attempted coup.
Bolsonarist politicians often minimize the potential of the attacks, stating that there were no minimal conditions for a blow and that the episode was only vandalism.
“This narrative of coup attempt on January 8 is an impossible crime. You really want to convince me that someone who committed the acts of vandalism would sit in the chair of president of the Republic, start to order and would everyone fulfill? “The senator said in Roda Viva in April last year.
The councilwoman is another enthusiast of applying the thesis in this case. On Tuesday (11), he defended her again on social networks: “To talk about coup d’état, it would be necessary to show the potentiality to do so. On a Sunday, with the headquarters of empty powers, without weapons, hard to believe in Potential to reverse the outcome of the ballot box, although some wanted there. “
Em Published this Monday (9), lawyer Ives Gandra Martins also defended this position again. “For me, this movement, on the 8th, of protest, could not be a coup d’état, because unarmed no one gives a coup d’état. As I do not see a violent attack on the rule of law, but a tape, I am in favor of Amnesty, “he said.
In the Supreme, the thesis finds little resonance, embraced only by Minister Kassio Nunes Marques.
In September 2023, at the trial of the first criminal case of January 8, in relation to his colleagues and was against the conviction of the defendant Aécio Lúcio Costa Pereira for the crimes of coup and violent abolition of the Democratic Rule of Law.
Kassio said it was an impossible crime, arguing that acts would not be able to trigger military intervention.
“The truth is that the depredation of the buildings that are based on the powers of the Republic at no time threatened the authority of the dignities of each of the powers, nor the democratic rule of law, which has long been consolidated in our country,” stated.
The report consulted three criminal lawyers, who refuted the application of the impossible crime thesis in the scope of January 8.
Author of the book “Crimes Against the Democratic Rule of Law”, lawyer Rafael Borges says that the crime of damage (as he would legally fit vandalism) has the purpose of himself, without another goal.
“If we look at the elements of the process, it seems very clear to me that the intention was indeed to subvert the democratic regime,” he says.
“This January 8 scene seems to have been orchestrated since October 2022, as they had routine and food supply. Investigations have advanced and showed that there was one about realizing ideas that made possible the resumption of power by the political group defeated, “he says.
According to Borges, treating the episode only as a case of vandalism means ignoring elements that reveal that of the public security forces that worked in the place; that the restoration of tranquility was only possible when it changed the chain of command; and that there was a participation of high -patent military personnel.
“That act of violence is only the last stage of a series of actions that had been deliberately practiced in order to question the outcome of the elections. Calling vandalism is an attempt to belittle the scammer efforts,” he says. “To speak of an impossible crime is to say that it could only be punished if the coup happened. Punishing the consummated blow is that it is impossible.”
Professor at USP, lawyer Helena Regina Lobo states that the Federal Police did a broad investigation, with breach of telematic confidentiality and verification of cell phone content, which showed that the defendants were merely the intention of damaging the public assets, but rather to take the power.
“Today it is no longer possible to say that January 8 was simply a matter of vandalism. There is a very clear set of elements that rule out this thesis,” she says.
Professor at UERJ (Rio de Janeiro State University), Davi Tangerino agrees that investigations point out that those involved had undemocratic objectives. “It is up to the analysis if there was not precisely a bet, and it seems that yes, that in the face of the chaos of the Armed Forces,” he says.
Tangerino says the defense of the impossible crime thesis omits the fact that part of the armed forces “gave clear signs that the camps welcome.” An example, says, from General Walter Braga Netto to scammers protesters in November 2022: “You don’t lose faith. It’s just what I can say now.”
“No one. They were fed by institutional signs that the Armed Forces were ready to join the military intervention election,” he says. “Impossible crime would be if they were a bunch of crazy people who had received a prompt response from the Military Police and the Armed Forces.”
Tangerino also questions the relevance of the mayor’s comment, who even explained the context of his statements.
“In our constitutional design, who makes the judgment is the judiciary, not parliament. Several times parliamentarians rightly complain that the Supreme enters too much legislative matters,” he says. “I think it would be worth the reflection if it is up to the mayor to tell the Supreme Court how to interpret a criminal norm in a concrete case. I don’t think so.”
Borges also states that Motta’s speech is loaded with political content, in an apparent to the pockets, who supported his election. “But in the legal field it is a mistaken speech, which finds no basis in reality.”
