Although the House discusses sentence reduction options to coupled action by also seeking to target the former president (PL), there is legal margin so that one of the main bets of this articulation does not apply to the former president and the summit of the coup plot action.
According to experts consulted by SheetIf a change that seeks to some extent may be approved, there is a possibility that, by applying the new law, interpret that such a change would not affect Bolsonaro and his allies.
This reading starts from the fact that while the January 8 attacks were, in Bolsonaro’s case, they were considered to be convicted in the first class one, such as the acts of September 7, 2021.
With this, in the case of a unification, the Supreme could still evaluate that the crime was committed more than once in the case of the former president and the coup plot.
A path, on the other hand, that would hardly open margin for interpretation of the Supreme would correspond to the pure and simple reduction of the maximum and minimum penalties provided for these crimes. This would benefit both those convicted of 8/1 and those of the coup plot.
Bolsonaro was. Of this amount, 6 years and 6 months were at an attempt to abolish the Democratic Rule of Law, while 8 years and 2 months refer to the penalty for attempted coup.
The Federal Deputy (Solidarity-SP), who was nominated for the former president, has avoided making statements about the newsroom that will be adopted and says the text is still in negotiation.
As showed the Sheet In a report this Friday, according to people who had access to the text, a. In addition, to fix that in these cases the progression regime occurs after the sentence of the sentence, no longer a quarter.
Asked by the report on Thursday (2), the rapporteur said that the proposal to reduce the maximum and minimal penalties was also under negotiation.
Bolsonarists, in turn, defend in public that one will be approved. And, as revealed the Sheetthe way to bet on a penalty reduction PL would endorse part of the STF ministers.
The lawyer and professor of criminal law at FGV Raquel Scalcon does not see logic in changing the size of the penalties of the crimes themselves, in the Penal Code, pointing out that they are not high.
She sees as a proper way to include a rule to prevent coup and abolition crimes from being applied concomitantly. “[Assim] It could not accumulate his feathers, as in theft and theft. “
In her assessment, even if there is this kind of change, there is room for the judiciary to understand that it does not apply to Bolsonaro.
“All these rules, to say that only a crime prevails, assume that we have a great fact, a great conduct,” Rachel explains, adding that in Bolsonaro’s case, the PGR narrative brings much more facts, not just 8/1 and that ministers can say that they are not applying both crimes to the same facts.
Eduardo Muylaert, who is a lawyer and has been Secretary of Security and Justice in Sao Paulo, understands that the best option would be to adopt a writing that covers both conduct in one type, with the current maximum penalty of 12 years.
“Instead of having two crimes, it would have a crime with only two ways of getting the crime,” he says, pointing out that this option would be better for not generating the discussion about whether one crime absorbs the other.
He does not interpret that there would be a non -application to Bolsonaro and the defendants of the coup plot, but reinforces that the analysis will be up to the STF. And despite understanding that it would be bad to decrease current penalties, for him there would be no unconstitutionality in the measure.
Ademar Borges, lawyer and professor of constitutional law at IDP (Brazilian Institute of Teaching, Development and Research), says it is contrary to legislative amendments at this time, both for not considering the bad law and seeing a kind of “suspected attempt to change individual sentences”.
Disregarded this premise, he evaluates that, in the event of creating a unique criminal type, the change would not impact Bolsonaro, arguing that the Supreme can understand that the crime was committed for more than once, adding the penalties.
For him, on the other hand, if the option of decreasing the penalties of current crimes is made, the measure could be unconstitutional, if the decrease is accentuated, especially if lower the minimum penalties below 4 years, allowing replacement of imprisonment penalty with alternative penalties.
Renato Stanziola Vieira, who is a criminalist lawyer and a doctor of criminal procedural law from USP (University of São Paulo), evaluates that it would be unlikely to change the crimes benefit the former president.
“I think it will be very difficult even a criminal change to cover Bolsonaro’s situation from the point of view of acquittal of one type,” he says. “If the crime comes with the lightest penalty, it will be worth all the people who were convicted of these crimes.”
He further stresses that he sees as unconstitutional writing that eventually seeks to limit the magistrate’s interpretation of whether one crime has absorbed the other or not. “It is an affront to judicial independence to analyze the specific case.”
