An eventual approval of the proposal by Congress slowing the punishment to be unfolded, in practice, in an intricate debate in the (Supreme Court) to evaluate which accused by the attacks of 8 January the most beneficial condition would apply.
How it showed the Sheetchanges in the Democratic Rule of Law Defense Law in this direction are being discussed by the summit of Congress, with the aim of reducing the penalties of those who had no planning or financing role in those acts.
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Experts consulted by Sheet They have different opinions about the adoption of this type of proposal, but they claim that this analysis would be complex and can practically lead to a new judgment.
This is because, although the most beneficial law for the defendant to be able to retroact, the decision on which of the defendants would fit or would not be made by the court, on a case -by -case basis, from evidence in each case. One of the aspects that can generate controversy, for example, would be that of those who committed crimes merely influenced by the crowd and who had the role of influencing.
Diego Nunes, Professor of History of Criminal Law at UFSC (Federal University of Santa Catarina) and organizer of the book “Crimes Against the Democratic Rule of Law”, considers that, from the cases already tried, the Supreme Court seems to understand that all contributed to some degree to influence each other.
“So it seems to me that putting in criminal type the question of the influence of the crowd would not automatically bring the reduction for those involved in 8/1,” he says, saying it is possible that part of them is considered as influencers.
Nunes, however, assesses that a legislative change in this line may be positive by describing participation in crime in a more detailed way.
Lawyer Tatiana Stoco, who is a teacher of law and criminal procedure at Insper, makes the exception that changing the law to reduce penalties could serve as an incentive to acts of the type in the future.
It also minimizes the importance of the change, pointing out that today exists in the Penal Code an attenuating penalty for crime committed “under the influence of multitude in turmoil, if [a pessoa] It did not teased him “.
In the case of Aécio Lúcio Pereira, his defense even asked her to be applied.
The vote of the rapporteur, who was followed by the majority, considered the absence of mitigating. The minister, in turn, also rejected the application of a minor penalty for this reason, claiming it is “evident that he [réu] caused the turbulence caused. “
Also in the process of the defendant that chipped the statue “The Justice”, Débora Rodrigues, and which has been used by pockets as a symbol of the amnesty request, the vows of Moraes and Zanin followed the same line.
Still without a public text presented, the project of change in the law is still under behind-the-scenes debate and will pass the president of, (-AP). At the end of March, Senator Alessandro Vieira (–SE) presented a proposal of logic similar to the one being negotiated.
A second in common point discussed to reduce the penalties of January 8 would be to prevent the conviction in duplicate for the crimes of coup and abolition of the Democratic Rule of Law.
Most experts consulted by the report, however, that it would not be for a law to define, for example, that one crime could “absorb” the other, as Minister Luis Roberto Barroso defended in his vote.
They point out that this type of analysis should be done by the judge in the specific case. Already 1 of the 4 interviewees considered that it would be necessary to discuss the writing itself, but that parliamentarians could create such a prediction.
PUC-RS Criminal Law Professor and author of the book “Political Crime, National Security and Terrorism”, Alexandre Wunderlich, says that the debate on improving the Democracy Defense Law, which was approved in 2021, cannot occur in the heat of the facts.
“Emergency laws to meet certain punctual situations do not work,” he says. For him, there was excessive punishment in convictions involving January 8, and the problem is not in the law, but how it was applied.
Francisco Monteiro Rocha, lawyer and professor of Criminal Law at UFPR (Federal University of Paraná), evaluates that the way to change the penalties, to be greater proportionality in cases of those who had a lower contribution, may be adequate.
He points out, however, that what happens in the judgment in 8/1 is a structural aspect in the country’s legal culture, which would not apply the existing criminal apparatus to differentiate between those who have greater or lesser culpability.
According to him, if the change is, if in doubt about the role of the accused in the crowd, the Supreme Court should apply the most beneficial penalty to the defendant.
The lawyer says that if a new law is passed, in the final lawsuits, it is up to the defense to claim a criminal review, having to prove that the minor penalty would apply to its client, while in cases still underway, the court could act on its own initiative.
HAS Sheet Senator Alessandro Vieira stated that the bill he presented was concerned with aligning himself with what was historically already done in Brazilian law. He also said that each case will require an analysis – leading that, therefore, the conduct of each accused has to be individualized – and that he believes it would be done briefly.
