The calculation of penalties and the legal framework of the former president () and others accused of participation in a coup plot must motivate disagreements in the trial of criminal action against them in the (Supreme Court).
The first class concluded on the afternoon of last Wednesday (26) that offered by (Attorney General’s Office) against the so-called central core of the group suspected of planning a coup in 2022.
Lawyers heard by Sheet They say that now, the procedural preliminary issues overcome, other debates should arise, such as on criminal typification and the dosimetry of the penalty, already raised by the minister.
Despite the unanimous decision for receiving the complaint, Fux expressed concerns about the – in the case of violent abolition of the Democratic Rule of Law and the coup d’état.
The first has a scheduled sentence of 4 to 8 years in prison, and the second, from 4 to 12. The minister implied that he could oppose the cumulative application of the two penalties.
“It is possible that, in the course of instruction, it is concluded that there is actually an apparent conflict that can be fitted into a certain kind that is broader than the other,” he said on Wednesday’s trial.
In law, the absorption of a criminal type over another happens when there is more than one criminal conduct, and for the commitment of one, another would be necessary. A classic example is homicide, which incorporates that of bodily injury.
Criminalist Sergio Rosenthal states that, at this stage of the trial, only the receipt of the complaint was analyzed, without discussing the merit of the accusation. Although debated in this context, the issue may appear later.
“Especially because the accused defends himself from the description of the facts, not the typification that is made in the complaint,” he says.
The discussion about the absorption of one crime for another is not new. The minister brought her in, when the Supreme Court began to judge the defendants by the acts of January 8. did the same.
At the time, Mendonça voted not to condemn the defendant for the crime of coup d’état because he considered that the crime of violent abolition of the Democratic Rule of Law would absorb him. Barroso defended the conviction only by coup. They were won votes.
“This legal discussion of overlap, or not, of criminal types may appear [no julgamento da ação penal]”Says Flávia Rahal, a FGV Law professor SP.” There will certainly be provocation in this regard. “
According to the criminalist, even if the Supreme Court has already dealt with the subject in the previous trial, each criminal action presupposes that the defenses can again bring to light legal issues that they understand relevant.
“I find it unlikely that there is a change, as the definition made in the criminal actions of 8 January is recent and in cases that are related to this one being judged. But I find it very likely to provoke the discussion.”
The lawyer also hopes that the defenses will invest in the argument of the individualization of conduct, something already adventured by Minister Fux, who asked for view of the January 8 attacks.
“I confess that on certain occasions I come across an exacerbated penalty,” Fux said in the judgment of the receipt of the complaint. “I asked for a view of the case, because I want to analyze the context in which this lady was.”
Target of the case, the hairdresser Débora Rodrigues dos Santos is accused of armed criminal association, violent abolition of the Democratic Rule of Law, coup, qualified damage and deterioration of listed heritage.
who did not invade any building during the attacks and that “the heat of the situation” caused her to act without full dominion of her mental faculties. Her case gained repercussion on social networks.
Bolsonaro and the other accused of the central nucleus respond for violent abolition of the Democratic Rule of Law, coup, armed criminal organization, qualified damage and deterioration of listed heritage.
According to Maíra Salomi, vice-president of the IASP Criminal Law Commission (São Paulo Lawyers Institute), the concern is criminal liability, which counts on the Brazilian legal system with the principle of subjective liability.
“That is, you have to evaluate what the person did, what is the measure of their guilt, the measure of their participation, so that they can decide on the guilt they have, the criminal liability,” says the lawyer.
“Here is a thread of hope for the defense, which it may have a divergence in the future when the final judgment of the process, but they are all issues that must even be analyzed at the end of the procedural instruction.”
With the receipt of the complaint, the instruction begins, with the hearing of the witnesses of prosecution, then those of defense and the interrogation of the defendants. Following, accusation and defense present the written allegations and then the date of the trial is set.
