The time when () is under house arrest should not be deducted from any conviction in the coup plot, since the precautionary measure was applied due to a different process, experts heard by Sheet.
The former president since July 18. On August 4 ,. Both precautions occur at the sphere of one and one of their children, the (PL-SP), for possible coercion and obstruction of the judgment of the attempted coup.
According to experts, there is legal provision so that time under house arrest can be deducted from a final conviction, but it should not be valid in the case of the former president because they are different processes.
While the inquiry on obstruction may or may not become criminal action, the process that analyzes whether Jair Bolsonaro led the 2022 coup plot is in the final stretch with.
If convicted, the former president can take more than 40 years in prison and increase the ineligibility that currently runs until 2030.
The freedom of the politician, however, is already restricted due to house arrest on August 4. Minister Alexandre de Moraes, of the Supreme Court, imposed the measure after concluding that Bolsonaro disrespected previous ban on using social networks, even through third parties.
Provided for in the Criminal Procedure Code, precautionary measures aim to ensure the smooth progress of the investigation and the application of criminal law, as well as avoiding the commission of new infractions.
The law provides, among other possibilities, electronic monitoring, the prohibition of maintaining contact with a certain person and the pre -trial detention, considered the most serious.
House arrest is an alternative to closed pre -trial detention. Provided for in Article 318 of the Criminal Procedure Code, it may be applied to the person who meets the planned conditions, such as being over 80 years or being extremely weakened due to serious illness.
except from lawyers and previously authorized people. Visitors cannot use cell phone, take a picture or record images. In addition, the politician is unable to use social networks and cannot have contact with ambassadors and other foreign authorities, as well as defendants and investigated.
According to Telma Rocha Lisowski, Professor of Constitutional Law at Mackenzie Alphaville University, the fact that house arrest comes from a different process limits the possibility of the time under the precautionary being deducted in possible conviction in the coup plot.
She says that both the home period and the anklet time could be counted in theory, but only if they were in the same process, which is not the case with Bolsonaro.
“There is an understanding of the STJ [Superior Tribunal de Justiça] saying that even in these cases where there is an electronic anklet and limitation of the freedom to come and go only at times [período noturno e dias não úteis]the period must be computed in the final penalty, “he explains.
Thiago Bottino, professor at FGV Law Rio, also understands that the fact that the home comes from a different process generates the limitation.
He explains that deducting the time of house arrest in the penalty “aims to prevent the defendant from being more prisoner than due, considering the period in which he was deprived of liberty during the process.”
However, the expert says, “This occurs when pre -trial detention was decreed in the same process in which the person was convicted.”
Therefore, he understands that the rebate would not be possible in the case of Bolsonaro, but points out that there is jurisprudence of the STJ saying that the prison can be used in the imprisonment of penalty if it is concomitant to another process.
“In the case of Bolsonaro, the arrest is concomitant. So this prison time could be used to shoot down the time of penalty. But that’s not what the law says. It’s an interpretation of the most beneficial STJ for the accused.”
The interpretation of the impossibility of the deduction in the situation of the former president is shared by Ricardo Yamin, a doctor of law from PUC-SP, although he claims that the theme is subject to discussion.
“I understand that [pode ser abatido] Because Bolsonaro is under house arrest for another crime, related to obstruction of justice and coercion in the course of the process, “he says.
According to Diego Nunes, professor of law at UFSC (Federal University of Santa Catarina), the deduction of time under house arrest would be possible for any conviction if the investigation that investigates the coercion and obstruction becomes process.
“House arrest is equivalent to other types of precautionary arrest [como preventiva e temporária] And therefore, it serves to rebuild the eventual future sentence of conviction, “he says. To Nunes, however, he would not be valid for the period with an anklet only.
It is expected that the trial of the coup plot will end later this year, although defendants lawyers have already ventured the possibility of a request for a view to delay an acquittal or conviction.
One Applied to Bolsonaro, although they can be revoked at any time if justice understands that there are no more reasons to justify them.
As a result, the former president would be more timeless with restriction, without probably able to slaughter his time stuck at home in any conviction in the action that judges the attempted coup.
