The ministers of the (Federal Supreme Court) resorted to history to support the need to evaluate current legislation on crimes against democracy from perspective that thinks of coup attempts by its whole, not by isolated facts.
The perspective was highlighted by, whose vote resulted in a majority for the conviction of (PL) on Thursday (11). They voted in the same way, Flávio Dino and Cristiano Zanin. Luiz Fux voted for Bolsonaro’s acquittal for all crimes. The former president was sentenced to arrest for the first class.
The difference between Fux’s interpretation and other ministers has been mainly in the way of evaluating criminal types on crimes against democracy – a violent apple of the Democratic Rule of Law and coup, both provided for in the Penal Code.
For most magistrates, the idea that attacks against democracy must be evaluated in their context, not as isolated facts, prevailed. They also directed the understanding that the violence or serious threat provided for in the legislation is not necessarily directed against a determined person, but to protected legal assets.
The need to consider the context appeared in the vote of the ministers permeated from references to blows already occurred. Carmen Lúcia was the one who made the connection with the past the most.
Bringing as a reference to the work of two historians – and – and the retired Professor of Philosophy of UFMG (Federal University of Minas Gerais) Newton Bignotto, she addressed some of the main legal doubts about criminal types following a perspective with a focus on the Brazilian past of blows, such as 1964.
The magistrate maintained that the protected good protected by law is public peace, against which the defendants’ aggression was focused on the decision of most ministers, formed a criminal organization for the 2022 coup plot.
Based on historical argument on past dictatorships, the magistrate has reinforced the idea, now, that blows are not done in one day and are given through events that cannot be seen separately.
In addition to the focus on the need to evaluate the acts brought by the PGR (Attorney General of the Republic) in the context, she and Zanin, the last to vote, reaffirmed the perspective of most ministers that violence or serious threat present in articles that typify the coup d’état and violent abolition of the democratic rule of law do not need to be against person, but can be aimed at democratic institutions.
This was one of the open debates about criminal types. Minister Fux was the only one to understand that there is not enough evidence against Bolsonaro to the point of fitting his conduct into criminal types that predicted violence or serious threat and tended to look at the facts brought by PGR as isolated and without proof of connection.
According to Lucas Miranda, master in law from UFMG (Federal University of Minas Gerais) and professor at Faminas (Faculty of Mines), in fact prevailed among the ministers the understanding that the terms violence or serious threat provided for in criminal types can be focused on institutions.
“Minister Zanin, for example, understood that, as the protected legal good is collective, the interpretation of the need for personal physical violence would not be compatible, and the interpretation of institutional violence is more appropriate.”
The expert also states that he has been in force among the magistrates the perspective that thinks the trajectory of the coup in its context.
“They understood that the coup of state is a complex situation, which does not occur through a single act. Looking at each act outside the context of the others, perhaps it was possible to say that that act was not enough for an attempt to coup. But within the context of concatenated acts, especially linked to acts effectively violent, there is a situation that configures the crimes.”
Cármen Lúcia highlighted how especially violent acts the plan to kill authorities and January 8. It signaled, however, that there was a chain of events that aimed to destabilize, with aggression, public peace and doubt the institutions, especially the Electoral Justice.
The minister said this state of distrust is essential to legitimize blows, which can start with manufactured seizures.
For Raquel Scalcon, FGV Law Professor SP, most ministers, as well as PGR, adopted an interpretation of violence and serious threat than traditionally used in legislation. She gives as an example speaks of Zanin about “institutional coercion” in the trial.
“Of course they recognize that January 8 would have violence and threat to the person, but the narrative that supports the convictions is that there was a growing institutional coercion, with growing pressure and threats to the court,” says the expert.
According to Adriana Cecilio, a master’s degree in Constitutional Law and professor at Nove de Julho University, the acts described by the PGR formed evidence that demonstrated the violence and serious threat described in the legislation.
“The criminal types described in articles 359-M and 369-L seek to protect the state, the bastion of democracy. The state is formed by its institutions. The attacks perpetrated on January 8 denote the realization of violence.”
Cecilio says that the ministers’ understanding, except for Fux, was in the direction that these acts are sufficient to demonstrate the attempt to coup, since the only element to prevent all acts from leading to the effectiveness of the coup was the fact that then army and Air Force commanders did not agree to participate.
“The legal good that criminal types aim to protect is the maintenance of the state. And the state is formed by institutions. When attacking the institutions, through all the attitudes adopted by the defendants, it occurred what in law we call the subsunction of the fact to the norm. That is, when the practice of an act sorts precisely to what the penal type predicts,” he interprets.
