The performance of (-SP) abroad for sanctions to Brazilian authorities could fit a crime provided for in the Military Penal Code as “understanding to generate conflict or divergence with Brazil”, but the application of this legislation to a civilian, already requested by representation of PT parliamentarians, divides experts.
The crime is provided for in Article 141 of the Code, which typifies the act of “entering into an understanding with a foreign country, or organization in it, to generate conflict or international divergence between Brazil and any other country, or to disturb diplomatic relations”. The penalty is for imprisonment of 4 to 8 years.
The article provides for the increase in penalty to 6 to 18 years if the act results in “rupture of diplomatic relations” or 10 to 24 years, if it results in war.
Eduardo’s performance abroad, in which the parliamentarian calls for sanctions to Brazilian authorities in exchange for an amnesty to his father, the former president (PL), and on January 8, is already the subject of the request of the (Attorney General’s Office).
In it, the institution cites coercion crimes in the course of the process, obstruction of criminal offense investigation involving criminal organization and violent abolition of the Democratic Rule of Law. The representation also emphasizes, throughout the text, the crime of attack on national sovereignty, provided for in the Penal Code.
Lawyers and law teachers, however, point to Eduardo due to unprecedented conduct. Recognition of the atypical situation generated a bill presented on August 1 by the PT leader in the House, (RJ), who wants to change the Penal Code to create the crime of high betrayal to the homeland.
On military crime, the chance of framing divides experts heard by Sheet because Eduardo Bolsonaro is civil. The possibility has already been sparked in a criminal news of July 17 made by Lindbergh himself in conjunction with the senator (PT-AP).
In it, parliamentarians ask that and PGR analyze the military crime with the other four already pointed out by the PGR in the investigation that investigates Eduardo.
For the teacher and master in Constitutional Law Adriana Cecilio, although the focus of public discussion about Eduardo’s behavior falls on the crimes of coercion and obstruction, which would have new contours with the atypical action of the parliamentarian abroad, the military crime is the one that fits perfectly into the conduct of the deputy.
“The legislation defines the practice as an understanding to generate conflict or divergence with Brazil. That is, there is a perfect subsumption of the fact to the norm. The acts performed by Eduardo Bolsonaro are looked at the action that the letter of the law aims to proscribe, “says Cecilio.
For her, the crime can also penalize civilians. “The legislation makes it clear that the criminal type reaches any Brazilian citizen.”
The scope of the application is expressed in article 122 of the same code. In it, it is stated that the request of the crime must be made by the Ministry of Justice when the agent is civil and there is no military co -author.
Therefore, the request made by Lindbergh and Randolfe against Eduardo Bolsonaro would need to be made by the ministry, says Cecilio. According to her, the fact that he was a parliamentary would take the trial to the Supreme Court.
The expert also states that the criminal type is described in the list of crimes in peacetime, framed as crimes against the country’s external security.
“In addition to violating infraconstitutional legislation, the conduct of the parliamentarian also hurts the Brazilian Constitution, as its acts put national independence at risk, given the attacks on institutions, greatly to the Supreme Court,” says Cecilio.
Fernando Capano, Doctor of State Law from USP, says that the crime provided for in article 141 of the Military Penal Code is its own crime without correspondent in the common Penal Code. Therefore, there would be a hindrance to impute him to Eduardo.
“The logic of the attraction of military criminal law to curb or resolve the illicit practiced by a landscape is very exceptional, pursuant to article 9 of the Military Penal Code,” he says.
Therefore, he understands that Eduardo would need to commit the crime with a military man to be reported from article 141.
“The jurisprudence has been moving so that we did not admit this possibility, not only because of the absence of criminal correlation with the common Penal Code, but also due to the absolute incompetence of the Military Justice to settle and penalize people who are not affected to their jurisdiction,” he says.
Similarly, Aury Lopes Júnior, PhD in Criminal Procedural Law and Professor at PUC-RS, understands that the wording of article 122, who cites the application of the crime to civilians, does not supplant the tendency to restrict the performance of military justice.
In this sense, Eduardo’s framing in the crime would be unlikely that he is not military and there is no interest from the Armed Forces in the case.
For Lopes Júnior, the proposal to frame Eduardo in the crime “is founded”, but tends not to prosper for that reason. The expert also emphasizes the unprecedented and atypicality of the scenario, both discussion about military crime and for the possibility of being committed by a civilian.
“It would be very interesting for the legislator to take advantage of the writing of article 141 of the Military Penal Code and bring this figure to the common Penal Code. Because if it brought this conduct to the Civil Penal Code, it would be quiet to fit the conduct of Eduardo,” he says. “We have to prepare legally for situations like this.”
