After () and the other defendants of the coup plot and the attacks of January 8, it approved, last Wednesday (17), the crimes committed between those of 2022 and attacks on.
The rapporteur of the proposal, Deputy Paulinho da Força (Solidarity-SP), from the discussion for a penaltime reduction.
. The most recent was sanctioned by the president () in 2010 a.
The most remembered, however, when the military dictatorship has annisted the political crimes of the regime and the armed opposition, making room for a redemocratization that did not discuss or punish the human rights violations of the period.
Amnesty is a form of extinction of the punishment of a crime committed, as is the grace and pardon, granted by the President of the Republic, explains the lawyer and vice president of IASP Marina Coelho Pinhão.
Diego Nunes, professor at UFSC (Federal University of Santa Catarina), states that amnesty differs from grace and pardon for not being personal and from the National Congress.
“The pardon is given by the executive and aimed at prisoners who meet certain requirements established by the President. Grace is granted to a specific person, as Bolsonaro did with. Amnesty must be abstract, that is, not directed to someone in particular, but to an undetermined collectivity.”
Understand in six points the discussion on the theme:
Who can propose the amnesty?
Amnesty follows all the rites of a common law project, so it can be proposed by any deputy or senator, by the federal government itself or even by the population through a popular initiative project.
There is, however, a particularity: even being pending as a project of common law, amnesty is the exclusive prerogative of Congress, that is, only the legislature can grant it.
Marina states that this is due to the fact that amnesty is a law that regulates the federal, which is the competence of the legislature.
In past legislation, due to a broader federalism model, state governors were allowed to also grant amnesties, but this was extinguished in the 1988 letter today, every amnesty that is approved concerns the federal level.
How does the proceedings work?
From the moment it is proposed, the bill has to be or the Senate. It is their power to decide when and the text is based.
It is also the head of the Legislature who defines a rapporteur for the project and forwards him to the necessary committees. But there are situations where he can follow in urgent regime, when he does not have to go through the corresponding committees and may go to the vote directly by the plenary. This is what happens with the current proposal, which had.
After the approval of the merit, the text goes to evaluation by and, if approved, for presidential sanction.
The Senate is not obliged to follow the same pace imposed by the deputies. The president of the House, David Alcolumbre (União Brasil-AP), can send the project to a commission normally.
Can the president veto?
In theory yes. As amnesty acts as a common law project, the president’s veto power normally applies, as there is no formal restriction on the Constitution. But there would be controversy that could generate battles in the judiciary.
“The veto would be understood as inappropriate by the president, because he does not have this prerogative. The president can grant grace or pardon and, likewise, the legislature does not intrude,” says Diego.
For Marina, on the other hand, there is no doubt about the power of the President fully veto the law. “It’s a law like all the others, both the president can veto and Congress can overthrow the veto later.”
Once approved, how is it implemented?
Diego explains that amnesty is a law, that is, a law whose effectiveness begins immediately after its promulgation. With the publication in the Official Gazette, lawyers of persons included in amnesty may request habeas corpus, release of prisoners and extinction of court proceedings.
People who are complying with precautionary measures, such as the electronic anklet, may also request the end of the measures and may not be arrested or processed by non -compliance.
But the deadlines for effective implementation may vary because they depend on affected seek the competent instances.
Other punishments, such as business offspring, patent loss or regimental punishments may also be reviewed with amnesty, but this would occur on a case by case basis, seeking each responsible institution.
Can it be revoked?
“It’s a very complex discussion,” says Diego.
Being a common law, in theory the amnesty can be revoked. Being a law, with immediate effect, the picture is more complicated, as there would be difficulty in reopening proceedings and arresting the people who have been released between approval and a possible revocation again.
In addition, the Brazilian legal system does not allow a law to be changed to the detriment of the defendant, which launches doubts about the possibility of people who had their penalties extinguished after the amnesty re -respond again, indicating a scenario of court battles.
If the Supreme is caused to analyze the law, however, it can declare it unconstitutional and overthrow its validity if there is errors in the text.
“An order of this [prender os anistiados de novo] It would only be effective if the action and the judge’s decision could be faster than the release of all these people. Because, otherwise, it is a possible decision, but it is a difficult decision to fulfill, for logistical reasons, “he says.
Crimes committed by the defendants of 8/1 and the coup plot anistable?
The Constitution defines that drug trafficking, terrorism, and heinous crimes are not anistable, including the criminal organization, one of Bolsonaro’s convictions for the Supreme.
There is no mention of crimes against democracy, such as the case of the coup plot and the attacks of 8/1.
In 2023, the Supreme Court considered the grace granted by then -President Bolsonaro to Daniel Silveira unconstitutional, arguing that the benefit was given to a “first -time political ally” and that attacks on democracy could not be forgiven.
Marina disagrees with the court’s decision, but states that the case may serve as a precedent for a possible amnesty judgment.
Regarding the inclusion of crimes against democracy in the list of non -anistable, the lawyer recalls that there was no change in the constitution in this regard. “What happened was an interpretation that they could not receive pardon because in a democracy cannot forgive crimes against it.”
Diego argues that the constitutional text classifies these crimes as imprescriptible and unenforceable, which generates a paradoxical situation if they are amnesty.
“A crime that does not prescribe is a crime that does not end the possibility of criminal prosecution, that is, there is a contradiction. A crime cannot be imprescriptible and anistable at the same time. It can be persecuted at any time, but can be forgiven at any time?”
