If () is convicted in the first class of (Supreme Federal Court) without the score unanimous, the chances that the former president is entitled to an extra type of appeal, infringing embargoes, which could extend the duration of the process.
According to experts consulted by Sheetthis type of appeal, appropriate only when there is divergent vote in favor of the defendant, could reopen the debate on the merits of the conviction and bring the trial to the plenary. However, it is not a guaranteed process, because precedents of the Supreme of recent years have imposed additional limits to the use of this type of question.
Next to the central core of the coup plot action is, and so far only the minister to the rapporteur in the first class, who is made up of five magistrates.
Earlier this month, however, in view of Moraes’ decision to decree the former president’s house arrest.
Bolsonaro, attempted violent abolition of the Democratic Rule of Law, coup d’état, damage qualified by violence and serious threat against public assets and deterioration of listed assets.
As experts explain, if the Court follows, Bolsonaro would need two votes acquitting him of at least one of the crimes of which he is accused for the processing of infringing embargoes to be admitted. Part of them does not discard, however, that the coup plot process can lead to a rediscussion on such parameters.
Marta Saad, lawyer and professor of criminal procedural law at USP (University of São Paulo), explains that the logic, in this case, is that a minority position in the class can end up becoming majority in the full. “If a judge diverged from others and decided in favor of the defense, this vote may indicate that the decision still deserves a new analysis, now for a larger number of judges,” she says.
The teacher evaluates that the Supreme Court will possibly follow the restrictive understanding that has had in its precedents for admission of this type of appeal. It points out, however, that these restrictions go beyond what the Court’s regiment foresees.
This document provides for the need for at least four divergent votes in the plenary so that infringing embargoes can be presented. However, it does not specify a minimum number for the classes.
Since the monthly, however, although with tight scores, the court has made decisions with a more restrictive understanding of the use of infringing embargoes.
In 2018, when analyzing an appeal, the plenary set as a requirement the existence of two votes for acquittal for the appropriate embargoes in the classes.
Already this year, in – this processed in plenary – the Court reiterated by 6 votes to 4 that would fit infringing embargoes only in case of divergence in the sense of acquittal.
Following the logic of these precedents, therefore, even disagreement with more than one minister, but only regarding procedural issues or size of the penalty, would not be sufficient to allow this type of appeal to be processed.
This week, Moraes quoted Maluf’s precedent to deny the admission of infringing embargoes presented by the defense of and became known for having the statue “The Justice” on January 8. In her case there was a vote (Luiz Fux) for partial acquittal and a vote (Cristiano Zanin) diverging from the penalty dosimetry.
Despite the restrictive precedents, Antonio Santoro, lawyer and professor of criminal procedural law at UFRJ (Federal University of Rio de Janeiro), sees as possible a scenario in which this line does not remain.
As variables that can influence the issue, it points to the fact that the composition of the Supreme Court has been another since the precedent of Maluf (and which was defined by a tight majority) and the fact that the very rules on class competence have changed over time. It also highlights the very sensitivity of the process: “This case is very delicate and it can be a ‘leading case’ that leads a new understanding,” he says.
Another possible appeal, declaration embargoes are reserved for situations where the defense understands that there was some obscurity, inaccuracy, contradiction or omission in the judgment. “In this situation, the matter does not go to the plenary, and the same body that uttered the judgment appreciates the embargoes,” says Renato Stanzola Vieira, who is a criminal lawyer and a doctor of criminal procedural law from USP.
Vieira also points to the possibility of lodging habeas corpus to the court plenary for the defense after the conviction. In this case, however, it points out that the court has a very restrictive understanding regarding the use of this procedural means.
Currently, after the understanding of Moraes that the former president failed to comply with a precautionary measure in another investigation.
The arrest of serving a sentence, on the other hand, in case of condemnation of closed regime, should only occur after the final judgment – when the appeals are exhausted – according to the jurisprudence of the Supreme himself.
The deadline for submission of declaration embargoes is 5 days from the publication of the judgment judgment, while that of infringing embargoes is 15 days.
In theory, the defense may present successive declaration embargoes, if you understand that the answer to the previous questioning follows with obscure points.
Rossana Leques, a criminalist lawyer and a master’s degree in Criminal Law from USP, explains, however, that the court may reject the processing of an appeal if it considers that there is only intention to delay the closure of the process.
“When the court understands that the requirements were not fulfilled, that the appeal is incabable, it is considered merely delaying. And this implies a possibility of immediate execution of the penalty,” she says.
This can occur in both infringing embargoes, as happened in the Collor process and in the declaration embargoes (PL-SP).
In Zambelli’s case, the Federal Public Defender’s Office appealed by arguing that the early res judicata certification “in the event of successive interpositions of several declaration embargoes, but not necessarily, of the first interposition” would be reasonable.
