which sentenced the former president () and seven other defendants from the central core of the coup plot this Wednesday (22) by the (Supreme Federal Court), the reporting minister will have little room to decide monocratically on the .
This is because, in theory, he could only make an individual decision if he understands that they do not meet the minimum requirements for admission, as explained by experts consulted by the Sheet. Furthermore, in this case, the defenses can present questions so that the class can also assess the issue.
With the publication, the deadlines for defenses for the filing of possible appeals begin to count. According to the court’s rules, motions for clarification, reserved for situations in which the defense understands that there was some obscurity, inaccuracy, contradiction or omission in the decision, can be presented within 5 days after the publication of this document, which has the function of formalizing the terms of the .
Those in favor of the defendant have a slightly longer period of 15 days – a period that can, in practice, be extended, given that the embargoes suspend the deadline until the merits are judged.
Although there is the possibility of monocratic decisions, it is unlikely that the minister will take any action without at least submitting it to the First Panel. This is because, in the case of a monocratic decision, lawyers will have tools at their disposal — the so-called regimental appeals, in legal jargon — to take it to the class for analysis.
Also if the appeals are admitted, the natural path is for the analysis of the merits of these questions to be carried out by all the ministers and not individually by Moraes.
On the other hand, Moraes as rapporteur has more room to decide monocratically on issues involving the fulfillment of the sentence of Bolsonaro and the other defendants, such as the location of the prison and the eventual granting of house arrest. Also in this case, however, it would be appropriate to present an appeal to take the discussion to the class.
Bolsonaro is. If your conviction is upheld, the sentence must only be served after these resources have been exhausted — something that court ministers .
In theory, the defense can file successive motions for clarification if it understands that the answer to the previous question still has unclear points.
Although there is no defined limit on the number of motions for clarification that can be filed, if the court considers that there is only an intention to delay the closure of the process (by repeating arguments already presented in previous motions, for example), it can understand that it is merely delaying and declare the decision final, for example. In this scenario, merit is not analyzed.
“Any appeal, any manifestation, the rapporteur can assess monocratically, when he understands that that appeal is manifestly unappealable or when it is an appeal that does not comply with an understanding already established by the court”, says Rossana Leques, criminal lawyer and master in criminal law from USP (University of São Paulo). “[Mas] Afterwards, the defenses can present an appeal, so that the case can then go to the class.”
Based on this, professor of criminal law at Uerj (University of the State of Rio de Janeiro) and criminal lawyer Davi Tangerino argues that, even in the event of second or third embargoes, in which a monocratic approach by the rapporteur alleging delay in nature would become more feasible, Moraes would probably submit the decision to the class.
“They avoid these monocracies, because inevitably the defense or the Public Prosecutor’s Office will get worse and it will have to go to the class equally”, he says.
Renato Stanziola Vieira, who is a criminal lawyer and has a doctorate in criminal procedural law from USP, explains that there would be no option for Moraes not to submit any grievances for analysis by the class. “As long as he doesn’t take it, the res judicata won’t happen, there has to be some decision about that”, he explains.
While declaration embargoes are analyzed by the First Panel itself, infringing embargoes, if accepted, would take Bolsonaro’s case to a new trial, only by the Plenary.
this should not be enough for this type of appeal to be admitted. According to a STF precedent recently applied by the First Panel in another case, at least two votes acquitting the defendant of at least one of the crimes would be necessary to do so.
Lawyer and professor of criminal law at UFMG (Federal University of Minas Gerais) Frederico Horta believes, because there is this jurisprudence against the knowledge of offenders for this type of case, that Moraes will monocratically deny knowledge of this type of appeal, if it is presented by the defense.
He adds, however, that the group would probably then discuss the appropriateness of the appeal by re-questioning the defense — there is disagreement among those interviewed as to who would analyze the appeal in this case, there are those who understand that it would be the full case.
A possible decision on how Bolsonaro should serve his sentence will be up to Moraes, the case’s rapporteur, after the end of the process. Under the argument of the former president’s health weaknesses, the defense must plead that he, in a similar way to what was granted by Moraes to former president Fernando Collor.
In the case of a closed regime, three possible destinations have been mentioned: the Superintendence in Brasília, a special cell in the Papuda Penitentiary Center, also in the capital, and an Army barracks. The last hypothesis, however, .
Antonio Santoro, lawyer and professor of criminal procedural law at UFRJ (Federal University of Rio de Janeiro), says that, once the final judgment is certified, it is up to the rapporteur and not the class to determine the beginning of the sentence.
“The rapporteur can decide monocratically about serving the sentence in the home modality, which does not prevent the filing of an eventual appeal by the defense, which must be judged by the panel.”
