The Federal Supreme Court (STF) began last week the trial of the so-called “crucial core” of the alleged scammer plot of 2022, which has former President Jair Bolsonaro (PL) among the defendants.
The Attorney General’s Office (PGR) accuses the group from trying to prevent the inauguration of President-elect Luiz Inacio Lula da Silva (PT), articulating measures that would configure crimes such as armed criminal organization, coup and violent abolition of the Democratic Rule of Law.
The expectation in the court is a conviction, but the great unknown is in the definition of the sentence, that is, in the calculation that determines the number of years that each defendant must comply. It is at this point that ministers can differ more clearly, especially in the case of Bolsonaro.
Divergences
Minister Luiz Fux is appointed as the member of the first class who tends to destroy his colleagues. At the trial of the hairdresser Débora Rodrigues dos Santos, who wrote “lost, Mané” in the statue of justice, Fux voted for a penalty of 1 year and 6 months, while Cristiano Zanin defended 11 years, and Alexandre de Moraes, Flávio Dino and Cármen Lúcia fixed 17 years.
This contrast should be repeated now. While Moraes and Dino tend to adopt harder penalties, Fux can propose a significant reduction, especially in relation to the crimes of coup and violent abolition of the Democratic Rule of Law, which he considers to be overlapping – that is, the attempt to abolish the state could only occur by a coup, not configuring two distinct crimes.
How is the penalty calculated
According to criminalist lawyer Guilherme Carnelós, master and specialist in Economic Criminal Law from the Getulio Vargas Foundation, the calculation follows three phases provided for in the Penal Code:
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- Fixation of the base penalty – Part of the legal minimum of each crime (for example, 3 years for criminal organization) and may increase from judicial circumstances, such as gravity of the act, antecedents and consequences. In the case of Bolsonaro, the impact on democracy and the depredation of the headquarters of the three powers may justify above minimum elevation.
- Aggravating and attenuating -take into account individual aspects, such as any leadership in crime (which increases the penalty) or primacy (which can reduce it). For the PGR, Bolsonaro must have the penalty aggravated for being considered leader of the criminal organization.
- Causes of increase and decrease – They may expand or reduce punishment in specific fractions. Here it is also decided whether the penalties of different crimes will be added or absorbed by each other.
The final result defines the initial compliance regime. By law, penalties greater than 8 years should start in closed regime.
Divergences
The definition of the size of the penalty, however, can generate disagreement among the ministers. Criminal lawyer Marina Gomes, a specialist from FGV and master from the Universidad de Salamanca, explains that, as a rule, the majority understanding prevails: three ministers from the first class prevail about a level of punishment.
When there is no majority at specific points of dosimetry, there is room for negotiation within the board. In such cases, magistrates may seek convergence through adjustments in their votes or, ultimately, form an “medium vote” – an intermediate solution that contemplates the different positions.
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Although the STF regiment does not formally predict this figure, the practice has already been adopted in emblematic judgments, such as the monthly, when the court had to find a balance between divergent positions to fix the feathers.
Penalties under discussion
The PGR calls for the conviction of Bolsonaro and the other defendants for five crimes, with a minimum penalty of 12 years and maximum over 40 years.
A point under discussion will be the accusation of armed criminal organization, whose penalty ranges from 3 to 8 years and can be increased by half if weapons and one sixth to two thirds are used if civil servants are attended. As a leader, Bolsonaro can receive additional additions.
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Experts remember that to reach the result, ministers must harmonize their votes. In case of divergence about the size of the penalty, the most beneficial arithmetic average of the defendant prevails.
Prison after conviction
Even in case of severe conviction, Bolsonaro should not be immediately transferred to the closed regime. The jurisprudence of the Supreme Court provides that only after the judgment of internal appeals, as declaration embargoes, it is possible to execute the penalty. This is what happened in the case of former President Fernando Collor, convicted in 2023 and arrested only in 2025.
Bolsonaro already meets house arrest in another process, which may influence the final decision. In the event of a closed regime, he would be entitled to special cell in a staff room, possibly in Papuda or the Federal Police Superintendence in Brasilia. Health issues can also weigh in favor of maintaining the home regime.
