The decision of the minister, the (Supreme Court), to impose new restrictions on the former president () reinforces a point of tension between the formal aspect of the law and the margin of discretion of the magistrate to apply it.
Moraes decreed instead of the preventive, closed. It also prohibited him from receiving visits, except from lawyers and authorized persons, and using cell phone, directly or through third parties.
Lawyers and law teachers heard by Sheet They differ on the choice of the minister of decreeing house arrest instead of the preventive. There is also criticism of the imposition of non -express restrictive measures expressly in the legislation.
Coordinator of the Law Course of ESPM-SP, Marcelo Crespo says that anyone in the place of Bolsonaro would already be arrested. As a rule, when it is understood that there has been non-compliance with the precautionary, the measure is revoked and the pre-trial detention is decreed.
Moraes sent the former president to home because he considered that he violated the prohibition of use of social networks, directly or through third parties, after (3) and have a message released on the platforms.
“In this case, in my view, he [Alexandre de Moraes] It is being more cautious than the magistrates would normally be, because there would already be the space for the interpretation that the precautionary was breached, for revocation and arrest decree, “says Crespo.
According to the professor, “legally, this decision is not a questionable decision. She is even a little more cautious in the sense of first going to house arrest than having actually decreed a Bolsonaro pre -trial detention.”
Maíra Salomi, vice president of the IASP (São Paulo Lawyers Institute of Lawyers), says that, from a technicist perspective, Bolsonaro should have been arrested preventively, although he stated that Moraes was left out of external pressures.
The lawyer says that home does not constitute an autonomous measure, that is, it cannot be determined by itself. In practice, it can only be decreed as a replacement for pre -trial detention when the requirements are present.
The Code of Criminal Procedure lists the hypotheses in which it can be decreed, as in cases of pregnant women, over 80 years old and women with children up to 12 years or extremely weakened due to severe illness. None of these situations were analyzed in the decision.
“The Rapporteur Minister preferred to bring another instrument [a prisão domiciliar] which is foreseen in the code, although not in this specific situation, to avoid incarceration, “he says.” Now, it is an illegal measure. It is preferable to pre -trial detention, but it is not foreseen as an autonomous measure, so it is not correct in the terms as applied. “
At the same time, restrictions such as mobile retention and ban on social networks imposed by the minister also do not have express legal provision. This is what the lawyer Renato Vieira, former president of IBCCRIM (Brazilian Institute of Criminal Sciences) points out.
“In criminal proceedings, precautionary measures, whether patrimonial or personal, depend on express legal provision, because it will always be a more or less castrating intervention of a person’s freedom,” says the lawyer.
There is an old debate, not restricted to the Supreme Court, about the possibility of the judge can adopt a milder measure to avoid arrest even without express provision. Vieira rejects this current, but notes that the case in question does not escape the rule.
“This is not a specific feature of this process,” says the lawyer. “It does not mean in itself a persecution against someone, reflects an understanding that is widespread.”
In a statement, the Brazilian Bar Association of Rio de Janeiro said it was “worrying to climb the restrictions imposed on the freedoms of those who bear the condition of defendant and investigated.” The text is signed by the president of the Order in the State, Ana Tereza Basilio, and the chairman of the OAB-RJ Criminal Law Studies Commission, Ary Bergher.
“In ongoing criminal investigations it is necessary prudence in the use of restrictive measures to freedoms, especially in the imposition of office, in the good of the rule of law. Similarly, due criminal law is very personal and does not allow sanctions for third party acts. We must all obedience to the provisions of the Constitution, under penalty of weakening public freedoms and fundamental rights,” says the text.
