The trial of former President Jair Bolsonaro (PL) and seven other defendants accused of articulating an attempted coup d’état gained new contours on Wednesday (10). Minister Luiz Fux, from the first class of the Federal Supreme Court, surprised to open divergence and argue that the Supreme Court would not have jurisdiction to conduct the process.
According to the minister, the Court would be analyzing a case that should be processed in other instances, since most defendants have no forum by function prerogative. Fux also argued that, given the severity of the process, the analysis should be done by the plenary, with the 11 ministers, not just by the class.
With this position, the magistrate voted for the annulment of the entire criminal proceedings. The thesis, however, faces resistance within the Supreme and, in practice, will hardly be accepted. For this to happen, Cármen Lúcia and Cristiano Zanin – still without vote – would be necessary to follow the divergence. Both, however, have already manifested in previous stages in favor of the competence of the Supreme Court.
So far, the score on the preliminary score that intends to nullify the whole action is 2-1: the rapporteur, Alexandre de Moraes, voted for the rejection of the defenses and the conviction of Bolsonaro as leader of the coup group, being accompanied by Flávio Dino. If a third minister confirms the understanding that there are nullities in the process, the conviction will be secured by a simple majority.
What does Fux’s thesis mean
Fux rescued the idea that, as most defendants have no forum for function prerogative, the case should be processed in lower instances.
For him, the change of understanding of the STF about forum – which began to allow trial even after the end of the term, provided that the crimes are linked to office – could only be applied to facts after the change in 2024.
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The minister also argued that, even if the Supreme Court had competence, the analysis should be done by the plenary, with the 11 ministers, not by the first class.
This line of argument echoes Bolsonaro’s defense strategy, which seeks to create legal breaches to question the conviction in future instances.
Lawyers call this logic “Zanin theory”, alluding to Lula’s case: in 2021, the Supreme Court annulled his convictions in Lava Jato alleging incompetence from the 13th Court of Curitiba and then Judge Sergio Moro.
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In Bolsonaro’s case, the goal is to plant the foundations so that, in a possible more favorable political scenario, the defense can use the same reasoning to try to reverse the conviction.
