the judgment of the former president () should help consolidate jurisprudence on crimes against democracy appreciated in the prosecution in the (Federal Supreme Court).
The (Attorney General’s Office) imputes the politician to lead the coup plot of 2022 and 2023. Between the two entered the legislation in 2021, included by Law 14.197, during the former president’s government.
These are the criminal types of violent abolition of the democratic rule of law and coup d’état.
Prior to the coup attempt process, they were discussed only in a context when STF ministers thought they involved in the coup attacks.
Until August 12, the Court blamed 1,190 people for the episode. Of this total, 638 were convicted, 279 of which for serious crimes against democracy.
Judgments helped build jurisprudence, but new crimes in the legislation still have points to be debated, in the evaluation of experts heard by Sheet. For them, The trial of the former president should raise discussions not yet deepened.
Bolsonaro’s defense rests on the novelty of criminal types to look for cracks in order to rid the politician. She claims that the former president is innocent of all the crimes imputed to him.
The main line of lawyers is that the action of the coup judged by the Court does not fit the attempt described in criminal types. The defense of the politician makes a comparison with the legislation of other countries, such as Germany and the United States, to maintain that, unlike them, Brazil does not predict the punishment of preparatory acts of crimes.
The lawyers say that Brazilian law sees the attempt – described in the criminal type – as linked to the beginning of execution, which would depend on the use of violence or serious threat.
The defense also argues that only two facts narrated by the PGR would approach such requirements: the plan to kill authorities and the
It says, however, there is no evidence that relate Bolsonaro to the episodes and that the inclusion of January 8 in the complaint is intended to “bring the violence that has always been known to exist.”
In addition, the former president’s lawyers seek to take the character of crime from other events posed by PGR as part of the coup chronology. They claim, for example, that the scammer drafts were constitutional.
They also argue that even if identified as illegal, these acts would be only preparatory, as they would not present the requirements of violence or serious threat that would separate this stage from the execution phase. The speeches against the ballot box made by the former president are described by the defense as an exercise of the.
Also in an attempt to rule out the episode from the crimes provided for in the law, Bolsonaro lawyers say that violence or serious threat in criminal types need to be against person, not against things or institutions.
“Even if you want, for the love of the debate, to understand your lines [de Bolsonaro] As attacks on constitutional powers, they do not bring violence or serious threat against the person. The other acts (such as the ‘Copa 2022’ [operação ligada ao plano para matar autoridades] And January 8) has already been shown here, although they approach the violence provided for in the criminal type, they have no relation to any action by the former president and, on the contrary, occurred in a diametrically opposed sense to their actions, “the defense says in the final allegations.
The PGR, in turn, treats January 8 as heyday of a series of events with the same objective of preventing the possession of the president (). The agency speaks of an Iter Criminis (Crime Trajectory) distended and started with meetings and statements by the former president from 2021.
From this perspective, actions such as the discredit of the ballot box and the operation of the day of election has already been in place crimes against democracy, which can be punished since the attempt.
The PGR stresses that such executory acts were documented by the criminal organization through manuscripts, digital files, spreadsheets and message exchanges “Revealing the rupture march of the democratic order.”
Thus, the coup was reportedly put in place through a series of actions involving the former president and was not finished by circumstances alien to him.
The difference in perspective between prosecution and defense will give the Supreme Court the opportunity to think of still pending issues about criminal types, says Raquel Scalcon, professor at FGV Law SP.
One is precisely the object of violence and the serious threat cited in law – people, institutions or democracy itself.
Another aspect raised by Bolsonaro’s defense is about not fitting participation in instigation in multipurpose crimes, as they were called by the STF those committed on January 8. Also called the “crowd crime”, they are committed by a group of people involved in confusion situations.
She claims that the former president was not present on January 8 and that it is not possible to instigate crimes without people determined as the target of the incit beer.
According to Ricardo Yamin, a doctor of law from PUC-SP, such an argument about multipurpose crimes is mere rhetoric in a case in which it is difficult to remove a conviction.
Yamin states that the former president’s trial will help elucidate still outstanding doubts, such as the classification of acts in preparatory or executions.
According to Raquel Scalcon, the country also needs to face the inescapable reflection on whether current legislation properly captures contemporary forms of ascension of authoritarian regimes.
“The criminal types were thought out four years ago. It seems shortly, but things are changing very fast,” says the expert, for whom it may be necessary to discuss the insertion of other criminal types in the legislation after the judgment of the former president.
Violent abolition of the democratic rule of law
Article 359-L of the Penal Code: try, with the use of violence or serious threat, to abolish the democratic rule of law, preventing or restricting the exercise of constitutional powers:
Penalty – Imprisonment, from 4 to 8 years, in addition to the penalty corresponding to violence.
Coup d’etat
Article 359-M of the Penal Code: try to testify, through violence or serious threat, the government legitimately constituted:
Penalty – Imprisonment, from 4 to 12 years old, in addition to the penalty corresponding to violence.
