Minister Luiz Fux of the Federal Supreme Court (STF) argued in his vote on Wednesday (10) that the defendants of the so-called coup plot did not perform executory acts capable of configuring the attempted violent abolition of the democratic rule of law or coup d’état.
According to him, the attempt is not only characterized by the intention of the accused or the desire to achieve a certain result. It is necessary that the acts have been performed consciously, with full notion of their dangerousness and with the firm intention to continue until the consummation of the crime.
“On January 8, 2023 may not have been the group’s main objective, but it was desired and encouraged when it became the final option available,” Fux said, citing the Attorney General’s Office. “The supervening deceit, however, is not enough to configure the attempt.”
Divergence in relation to the rapporteur
Fux’s position contrasts directly with that of the rapporteur, Alexandre de Moraes, who considered that the acts investigated – from meetings with military to the production of coup drafts – fit as executory acts. Moraes also classified Bolsonaro as the leader of the criminal organization that sought to reverse the electoral result.
Fux, however, relativized this understanding and stressed that the conduct of the defendants does not fulfill all legal requirements to characterize the execution. For him, manifestations, discourses, and even political articulations cannot be confused automatically with the executory practice of a coup.
Debate on January 8
The minister also analyzed the attacks of January 8, 2023, when buildings of the three powers were invaded and depredated in Brasilia. According to Fux, the episode was “desired and encouraged” by scammers only when it became the last alternative to maintain the power project, but this supervening intent is not enough to characterize attempted coup.
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With this interpretation, Fux reinforces his line of voting, marked by the acquittal of the defendants in crimes such as criminal organization and qualified damage, as well as the defense of the principle of criminal absorption – according to which less serious conducts should be encompassed by more severe crimes, without duplicate convictions.
