Eventual amnesty, grace or pardon that forgiven the former president () after judicial conviction could bump into the understanding of the (Federal Supreme Court) and eventually be overthrown by the Court.
Last Wednesday (26) on suspicion of leading a coup plot in 2022. The first class of the Supreme Court unanimously received a complaint presented by the (Attorney General’s Office).
Faced with one, the former president could count on an amnesty project to contemplate him or decree of free or pardon, if a right successor assumes the Planalto Palace from 2027-but this scenario would find resistance.
Lawyers and teachers consulted by Sheet They say they do not see specific impediment to measures in the event of conviction, but some stress that there are limits and that the Supreme Court has advanced in the construction of precedents in this regard.
Amnesty, grace and pardon extinguish the penalties, but have particularities. Granted by Congress, the first also erases consequences of the conviction. Grace and pardon, granted by the President of the Republic, maintain the other effects of conviction, such as the loss of the status of the primary defendant.
These instruments are not absolute, however. The law establishes, for example, that heinous crimes, practice of torture, illicit drug trafficking and related drugs, and terrorism are unsusceptible of amnesty, grace and pardon.
The former president is accused of violent abolition of the Democratic Rule of Law, coup, armed criminal organization, qualified damage and deterioration of listed heritage. Added, the maximum penalties may pass from.
Professor of USP Criminal Procedural Law, Gustavo Badaró says that, from a legal prism, in theory it would be feasible for Congress to grant an amnesty or the President of the Republic to issue a decree of grace or pardon, even for crimes against the Democratic Rule of Law.
“There is no prohibition,” he says. “In theory, crimes against the Democratic Rule of Law are not among the crimes for which parliament is forbidden to grant amnesty or the President of the Republic grant grace or pardon.”
On the other hand, lawyer Raquel Scalcon, professor of criminal law at FGV Law SP, says that the conviction for crimes against democratic institutions would be a central point of the discussion of the validity of the benefit.
“The type of crime, gravity, the fact that it is against the democratic state would certainly be used [nesse caso]”She says.
According to Scalcon, the Supreme has been overwhelming in recent years. A recent example was the one, even convicted of demonstrations against the Democratic Rule of Law.
At the time, the validity of the measure became a theme in the court, which, by majority, considered that there was a deviation of purpose in granting the benefit only because the former consisting is a political ally of the then president.
In the trial, the minister, said: “It would be possible for the Federal Supreme Court to accept collective pardon for all those who may be convicted by the scammer acts of 8, attacks against the democracy itself, against the Constitution itself? Obviously, this is implicit in the Federal Constitution.”
Daniel Silveira ended up having to serve the sentence, set in eight years and nine months.
Georges Abboud, a professor at PUC-SP and IDP, says there are limits and that it would not be new to judicialization. He recalls when the court understood the pardon of () who forgave, among others, convicted of and money laundering in 2017.
“If the supreme understands that the gravity of that conduct and crime for that theme does not justify, that is, it fits an abusive constitutionalism or deviation of purpose, it can control this pardon, this grace or this amnesty.”
But, as there has never been a specific punishment benefit for the type of crime by which Bolsonaro is prosecuted, Abboud states that it may depend on how the act will be written and the interpretation of the Court on him.
