Minister Luiz Fux’s vote adopted a restrictive interpretation of criminal law and diverges in almost all points of the rapporteur Alexandre de Moraes. Early on, Fux acquitted all defendants of the accusation of integrating armed criminal organization. For him, there was no evidence that there was a stable and hierarchical structure, but only the cooperation of individuals around specific objectives.
In the same vein, it removed the defendants’ liability for the crimes of qualified damage and deterioration of overturned assets on January 8. According to the minister, it is not possible to jointly punish all accused by depredations committed by third parties, without the individualization of conduct.
Regarding the crime of coup d’état, Fux understood that most defendants should be absorbed by the accusation of violent abolition of the Democratic Rule of Law. Still, he stated that there was not enough evidence of executory acts that configured this attempt. For the magistrate, only the cogitation or political manifestations, even when inflamed, cannot be equated with crimes against democracy.
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In the analysis of specific conduct, Fux condemned Mauro Cid and Walter Braga Netto for attempted violent abolition of the Democratic Rule of Law, citing evidence of planning of violent acts, including attacks against ministers of the Supreme.
On the other hand, he acquitted Jair Bolsonaro of all the accusations. The minister argued that there is no evidence that the former president has participated in the preparation of scammers, ordained PRF operations or if involved in the irregular use of ABIN. For him, Bolsonaro’s speeches, albeit aggressive, had no real ability to shake the democratic order.
In short, Fux stressed that there is only a crime of abolition of the democratic rule of law when there is “real danger, not merely hypothetical” of destruction of democracy, a thesis that led him to diverge from the line adopted by Moraes and Flávio Dino.
