Among all the uncertainties that surround the amnesty project that is being undergoing in Congress since last week, suggested that two of them dismissed in his search to “pacify the country”.
On the one hand, it ruled out the full maintenance of the penalties established by the Federal Supreme Court () in the historical judgments of those responsible for the attacks of 8 January and the coup plot. On the other hand, it also ruled out the aspirations of the pockets of a broad, total and unrestricted amnesty. He wants to reform the sentences of these condemned from which they reduce the final penalties.
Criminal lawyers heard by Sheet They evaluated the options before Congress and the judiciary and to what extent they can generate in Brazilian society the sense of impunity of those who committed crimes against the Republic. This is because, depending on the changes adopted, the reduction of penalties can be such to the point of being condemned to fulfill them already in open regime, for example.
For lawyer Pier Paolo Bottini, the proposal to reduce the dosimetry of penalties has “a technical advantage because, unlike amnesty, it can hardly be declared unconstitutional by the Supreme Court.”
For the FGV Criminal Law Professor Roquel Scalcon, there are two legislative ways to reduce sentences. “Either the penalties of the crimes themselves are reduced or it is not established that it is not possible to cumulatively apply certain crimes,” she says, referring to the debate on the violent abolition of the Democratic Rule of Law (with a sentence of 4 to 8 years) and the crime of coup (4-12 years), played by some jurists as one crime.
“The reduction of the specific penalties of each crime does not seem to me to be a correct measure because the penalties are not high for these crimes, including compared to other countries. They have been high because they have sometimes applied five crimes at the same time,” he says.
Study done in 2023 milder than countries such as Germany, the United Kingdom, France, Mexico and Argentina.
Scalcon explains that, in any case, the change focuses on all convicts for the same crimes. “The Constitution states that every new beneficial law must be applied retroactively to all existing cases. And the Supreme would be forced to review the penalties.”
For lawyer Theo Dias, the discussion of amnesty follows the “Brazil’s trend of looking for pacification solutions that contemporary and put the problem under the rug” and began motivated by penalties applied to the defendants of January 8 that he considers “excessive, which generated a sense of injustice in part of society.”
“I believe it was a mistake of the Supreme Court not to opt for the absorption of the crime of attempted abolition of the Democratic Rule of Law for the crime of attempted coup.
At the same time, he evaluates, the penalties for the coup plot’s craftsmen-the generals Braga Neto, Augusto Heleno and Paulo Sérgio Nogueira and the former president-were appropriate to the case. “Penalties for these crimes should be very high, as the imposition of an authoritarian regime results in the commission of numerous other crimes, such as torture, homicides and censorship.”
In their case, Dias understands that the crimes of violent abolition of the rule of law and coup of state crimes were committed at different times. “Until December 31, 2022, they tried to abolish the rule of law to maintain Bolsonaro in power. After Lula’s inauguration, in 2023, they tried a coup d’état,” he argues.
Bottini points out that, in a discussion still in abstract, if the penalty reduction proposed by parliamentarians is very significant, it can take directly convicted to the so -called open regime. Reserved for those who fulfill penalties below four years, this regime allows the convict to work or study without supervision and then retrace his home.
“A reduction of this type can generate a sense of impunity in the population,” he says.
According to the teacher of Criminal Law, “the effects of the reduction of penalties for the citizen who accompanied the trial would first be a disallower of the Supreme decision and, second, a sense of impunity.”
Dias evaluates that there is a path of reduction of penalties by the judiciary that would avoid changes in law, which judges fear. “It would be better a reversal of the Supreme Court jurisprudence for cases of January 8 to make way for criminal review actions by the defendants already convicted and convicted with lower penalties for the remaining cases.”
For him, the change of criminal types in the heat of events may have bad results for the country, with a message that the cost is low to try a coup d’état. “The writing of criminal types should be made from technical criteria, without social cry, with time for maturing and debates involving the legal community.”
