The defense of () attacked on Wednesday (3), during judgment in the (Supreme Federal Court), the argument of the (Attorney General’s Office) that tries to frame the actions of the former president since mid-2021 as crimes against democracy.
The crimes are central to the eventual conviction of the politician. In addition to the symbolic weight by meaning the arrest of a former president for coup attempt, they are among those imputed to Bolsonaro with more prison time and are mishaps in the former president’s attempt to effect the possibility of an amnesty, experts evaluate.
In the same days of Bolsonaro’s judgment at the Supreme Court, Congress resumed more strongly, with members of Centrão and the governor of São Paulo, (), articulating agreement to obtain a forgiveness to the former president.
Amnesty for crimes against democracy, however, would face resistance and would probably be reversed by the Supreme, experts. They argue that the crimes related to the attempted coup and violent abolition of the Democratic Rule of Law, in line with what advocates the Constitution on the impossibility of granting amnesty to those who invest against democracy itself.
The two crimes are provided for in the Penal Code, Articles 359-M and 359-L, and have penalties from 4 to 12 years and 4 to 8 years, respectively. In addition to them, Bolsonaro is accused of armed criminal association, qualified damage and deterioration of listed heritage. If convicted of all crimes, he can take more than 40 years in prison and increase ineligibility, which today runs until 2030.
On Wednesday, his defense reinforced the argument that the former president’s attitudes cannot generate conviction for crimes against democracy because they do not fit the text provided by law.
Lawyers want to convince the STF ministers that Bolsonaro’s actions since 2021 could not be penalized from the legislation, even if the PGR’s understanding that they would be undemocratic acts were accepted.
Arguments for this revolve around. Both articles entered the law in 2021 and were only treated in the context of January 8.
For Bolsonaro’s defense, the politician’s actions should not be penalized because they did not leave the preparation stage, which would not be punishable in the legislation.
They say that the attempt described in the law marks the beginning of execution, which would depend on the use of violence or serious threat. At the same time, they say that Bolsonaro’s actions exposed by PGR would not have left the preparation phase by not using violence or serious threat provided for in the articles.
To close the argument, they try to rule out the former president of January 8 and the plan to kill authorities, seen by them as more possible to approach what is discussed in criminal types, given the presence of violence.
Another perspective brought by the defense is the need for violence or serious threat to be against a concrete and determined person, against one.
The defense of the former president also bets on the discussion about the impossibility of incitement against multipurpose crimes such as January 8, once again in an attempt to ward off Bolsonaro from the episode.
By attacking criminal types against democracy on different fronts, the politician’s lawyers try to undermine the crimes that could preclude the prosperity of an eventual amnesty.
“If Bolsonaro were acquitted of crimes 359-l and 359-M, which are the most serious and directly linked to the idea of coup, it would facilitate the political defense of an amnesty for other crimes. In this scenario, the amnesty would be less at risk of being reversed in court, because it would not be shielding crimes against democracy, but crimes of less seriousness,” says Welington Arruda, Master and Justice by IDP (Brazilian Institute of Justice Teaching, development and research).
Interprets in the same way Diego Nunes, professor of law at UFSC (Federal University of Santa Catarina). “The political cost to parliamentarians would be lower in amnestying only common crimes than political crimes. But still, it may seem to be a Lege ad hominem [ou seja, feita para conceder impunidade a uma pessoa específica]”.
The expert also says that the Supreme Court would have, in this scenario, less chance to bar any forgiveness given by congressmen, since the central argument against the impossibility of amnesty has to do with the fact that the former president is involved in undemocratic crimes.
For the expert, this scenario would probably not have a ripple effect that prevented the condemnation of the other three remaining crimes. The expected penalties are 3 to 8 years for the crime of criminal organization, with a chance of aggravating. Qualified damage has 6 months to 3 years of penalty and deterioration of the overturned assets, 1 to 3 years.
Nunes states that, in criminal law, the dosimetry of the penalty is calculated from the minimum and that, in this case, “it would be possible that any penalty departed from the semi -open or even open, since to start in closed regime needs a sentence of at least eight years.”
Also for Welington Arruda, there is no automatic waterfall effect, that is, acquittal in 359-l and m would not erase the other crimes. “But in practice, the accusation is greatly weakens. This is because the whole narrative of the Public Prosecution Service starts from the coup idea. Without this foundation, the other crimes lose weight, and the reading of the context can be milder.”
For criminalist lawyer Ana Carolina Barranquera, expert in law and criminal procedure, a scenario with Bolsonaro acquittal in crimes against democracy would increase the chance of amnesty for the remaining crimes, which could still generate conviction.
“All crimes are autonomous, so if they understand that crimes against democracy could occur, they could understand that he participated in the crime of damage, for example.”
