A and seven other allies for the attempted coup d’état in 2022.
The decision of the first class will also open a new phase of the process: that of resources. After the conviction, the defendants can only appeal at the Supreme itself, but the possibilities are restricted.
Criminal lawyer Guilherme Carnelós, Master in Economic Criminal Law by FGV, explains that the first way is the presentation of the embargoes of declaration – appeal used to clarify doubts, omissions or contradictions in the judgment.
“This feature, however, is very limited and hardly reverses a condemnatory scenario. The recent case of former President Fernando Collor, convicted of corruption, showed that the Supreme Court has been refractory to declaration embargoes, recognizing only material errors or formal points,” says Carlólós.
Possibility of divergence
In addition to the declaration embargoes, there may be an attempt to present divergence embargoes. This appeal is appropriate when there is a precedent of the other class of the Supreme Court contrary to the judgment. However, experts consider this appeal unlikely in the case, as the coup plot is unprecedented in Brazilian jurisprudence.
“In theory, divergence need not be restricted to merit. It may be in the form of penalty or procedural matters. But the lack of precedents makes it unlikely that this resource thrives,” ponders Carolós.
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Infringing embargoes?
Among the possible appeals after a possible conviction of Jair Bolsonaro, the most sensitive is the so -called infringing embargo. This instrument gained notoriety during Lava Jato, when it was used by the defense of President Luiz Inacio Lula da Silva (PT) to cancel convictions.
To be admitted, however, the so -called qualified divergence is necessary. In practice, in a class trial – composed of five ministers – if only one diverges, the majority of the majority, almost as unanimity prevails. But if two magistrates have different vows of the rapporteur and the majority, there is room for the defense to file the appeal.
Criminal lawyer Marina Gomes recalls that infringing embargoes can only be handled in case of divergence on the merits of the criminal action, such as acquittal or conviction. Secondary disagreements, as in the dosimetry of the penalty, would not be sufficient to admit them-understanding already consolidated by Minister Alexandre de Moraes in judgments related to January 8.
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Lawyer Guilherme Carnelós explains that if admitted, infringing embargoes may change the course of the process. This is because the regiment provides that when the decision questioned is from one class, the appeal must be redistributed to the other.
In the event of Bolsonaro, therefore, it would be up to the second class – composed by Edson Fachin (president), Gilmar Mendes, Dias Toffoli, Nunes Marques and André Mendonça – reevaluate the case.
Nevertheless, experts point out that the issue still raises doubts, as it is an unprecedented process in the history of the Supreme. There is no absolute clarity about all available appeal paths, and divergent interpretations may arise.
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Even so, there is consensus at one point: the infringing embargoes would hardly result in the complete reversal of a conviction. Any appeals are expected to have a limited impact, acting more on the size of the penalties applied than on the acquittal of the accused.
