The retired lawyer and minister of the STM (Superior Military Court) Flavio Bierrenbach says he is against, which includes former president ().
Despite this personal position, he evaluates that, from a legal point of view, not necessarily a project in this regard would be unconstitutional, disagreeing with those they consider.
“Amnesty is a political, historical and legal phenomenon. It is three -dimensional. And in every moment, one of these aspects, one of these poles can predominate in relation to the others,” argues Bierrenbach, who was one of the arcades of the Faculty of Law of USP (University of São Paulo), as in 1977 was one of the articulators of the “Letter to Brazilians”.
He, who recalls having struggled by amnesty to the persecuted politicians of the military regime, points out that amnesty cannot mean forgetfulness. “One of the serious defects in the history of Brazil is to erase the past.”
Like mr. See those involved in the January 8 attacks, former President Jair Bolsonaro and other defendants of the coup plot? Brazil lived during its history, both in the empire and in the republic, periods of great democratic abnormality. Civil wars, revolutions, state blows and some extraordinarily bloody periods.
Amnesty, when it comes to finish a period of abnormality, requires two movements. One is to look back, to know what was done, what happened. Brazil is a country that hides its history and, therefore, has little memory.
And the second movement is to look forward to extend their hand so that two brothers who were wanting to kill themselves can establish a coexistence project. What characterizes a nation, more than a territory, an ethnicity, a language, is a project of coexistence.
And the current movement? I see this movement as reasonable in the history of Brazil. It would be admired if nothing had happened like that. It is a Brazilian political tradition to think of amnesty as a project of coexistence. Which does not mean that I am in favor of amnesty. I am not part of Congress. If you were part of the congress, I would analyze amnesty under a political prism. As I do not, I analyze the amnesty from the legal and historical point of view.
Amnesty has two faces. One is forgiveness, but amnesty cannot mean forgetfulness. You have to know what happened. The story has to be told so it does not repeat itself.
Last Sunday (7), Minister Gilmar Mendes said. Mr. Do you agree? I do not agree, because all the amnesties already granted in Brazil aimed at crimes committed against the Democratic Rule of Law.
Even the 1988 Constitution, mr. Evaluates that she does not bring any locks? There depends on an interpretation of the. Amnesty is a Brazilian political tradition, it has been granted for very serious crimes of great bloodshed.
And what is the position of Mr.? Amnesty is a political, historical and legal phenomenon. It is three -dimensional. And at each moment, one of these aspects, one of these poles may predominate in relation to the others.
So could a amnesty proposal be constitutional to 8/1? I think it can eventually be constitutional. And who has to declare constitutionality or unconstitutionality is the Supreme Court. And the supreme is this supreme we have. We have no other, this is this.
Some point the case of the annulment of the pardon to Daniel Silveira as a precedent, but there the main understanding of the Supreme Court referred to the deviation of purpose of the presidential decree. Mr. See the case as a precedent for 8/1? The Supreme Himself often considers what precedent what technique and theoretically should not be considered as precedent, is it?
Mr. See arguments in favor of amnestying 8/1 and the coup plot? I personally see no arguments in favor of amnestying anyone. I think people should pay for what they did. I have no arguments, no legal, historical, nor politicians to amnesty anyone.
Mr., at first, does not consider that the Constitution would be explicitly barring a amnesty in the case of 8/1? I do not see the constitution by barring it. I consider the amnesty to have three poles. A history, a legal and a politician. This means that sometimes one of these poles can end up weighing more, for example, the politician. This is what you have to decide. The STF does not have the ability to say what is good and what is bad for the country. Who says this is the law, it is the constitution.
Would the Supreme Court make any kind of amnesty to crimes against the Democratic Rule of Law? No, I do not consider it to make mistakes, because if he has consistent legal arguments, he can deny.
From a formal point of view, is it possible to approve an amnesty before the conviction? No, I think this would be a strange thing. It is absolutely bustling, anomalous.
Didn’t this happen to the 1979 amnesty? But there it didn’t depend on condemnation, there what was there was a persecution. People who could not attend universities. Some who could not even return to Brazil because, if they returned, they would be arrested and mistreated, tortured. So, although they were not condemned, the amnesty benefited them. And I fought a lot for this amnesty.
Now this is not happening today, there is no one chasing anyone. People are being processed according to the law that exists.
X-ray | Flavio Bierrenbach, 85
Lawyer, was a prosecutor of the state of São Paulo, councilman, state deputy and federal deputy. He is retired minister of the Superior Military Court.
