the trial of the former president () and the other defendants of the first core of the coup plot must have three main focuses of legal controversy, experts.
The expectation of lawyers and teachers consulted by Sheet It is that the case is marked by debates around the validity of, overlapping crimes and the characterization of a coup attempt.
Bolsonaro responds in (Supreme Federal Court) for crimes of attempted coup, qualified damage, armed criminal organization, deterioration of listed heritage and attempted violent abolition of the Democratic Rule of Law.
The former president will be tried in the first class of the court, composed of five ministers. To date, it has only given indications that it can be one.
One of the points that can generate divergence is Cid’s denunciation, which also goes to trial. The military in the first testimonials and key figures in the process, such as the former minister.
Two points are central to collaboration analysis: credibility and voluntarity. The first deals with how reliable the whistleblower’s word is, and the second, if the statements were made of their own will, without coercion.
It will be the first time that the Supreme Board must effectively focus on the matter. When he received the complaint against the accused, but without deepening the debate.
In the meantime, it revealed that a profile in the assigned to ICD would have been used to talk about the denunciation, which could configure violation of the confidentiality clause of the agreement. The dialogues, however, would also point to a possible lack of voluntarity.
One and affect the process, as omissions or confidentiality breaks would only reach CID, which risks losing the benefits of the agreement.
Maíra Salomi, vice president of the IASP Criminal Law Commission (São Paulo Lawyers Institute), says this is one of the key themes of the trial, after all much of the action is based on the denunciation, though not only.
“I would not rule out that we had divergent votes regarding the rigidity of the agreement, either by nullity, or for the disbelief of the testimonies,” says the lawyer.
Another point that should be to arouse discussion is the criminal framework. Since the beginning of judgments about the, it has been debated about an attempted coup d’état no longer presumed that of violent abolition of the Democratic Rule of Law or vice versa.
“When one crime absorbs the other,” and has a direct effect on the penalty. The coup attempt foresees imprisonment of 4 to 12 years, while that of abolition of the rule of law goes from 4 to 8 years.
Although he believes that there is a consumption in this case, Alexandre Wunderlich, professor of criminal law at PUC-RS and IDP, states that this is not a majority position in the STF, much less in the first class, where the process will be tried.
He believes that instead of one crime absorbing the other, the thesis must prevail in the Supreme Competition that there is a material competition, ie when a defendant is responsible for two distinct crimes and the penalties are added, which leads to higher punishment.
But for Wunderlich, what will decide the case will be to find the elements of violence and serious threat to which crimes deal with, which will depend on the analysis of evidence and individualized assessment of each other’s participation.
“He thought, he projected, he idealized, but he ceased his activity and did not agree with violence or serious threat. This is a very detailed examination that, in my opinion, is what the case decides,” says the professor.
Antônio José Teixeira Martins, professor of Criminal Law at UFRJ (Federal University of Rio de Janeiro) and UERJ (Rio de Janeiro State University), adds that it will be central to fix when these crimes begin to be committed.
In general, law organizes the course of a crime in phases: cogitation, preparation, execution, consummation and exhaustion. Usually the act can only be punished from the beginning of execution to consummation; What happens before or after, no.
Strike and abolition, however, are crimes that speak in attempt, which means that there is a detachment of those categories. The law does not punish the coup or abolition of the state itself, but the danger, says Teixeira Martins.
According to the teacher, the criteria used to classify attempts and preparatory acts are much debated, but in general, the understanding that it is necessary to combine objective and subjective elements.
That is, there is a good protected – the state or the government – and it is necessary to have an action that puts it at risk. If it is just an idea, it does not exceed the threshold than one might call execution.
but nothing but that. “Clearly, the study, cogitation and the ‘brainstorm’ of possible legal measures, under an analytical bias of its viability and submission to the law, cannot be regarded as a violent act,”
What the (Attorney General’s Office) intended to demonstrate, and what will be up to the STF to analyze, is whether the acts attributed to the former president and his allies surpassed the border between mere political cogitation and coup attempt.
