The defense of the former president (PL) focuses on a reduction in sentences to the (Supreme Federal Court) for attempted coup d’état and signals the presentation of a new appeal.
The judgment of the appeal should take place from November 7th to 14th in a virtual session in the First Panel and marks the beginning of a new phase of the process against the former president.
Experts say that defensive theses explore topics that, from a technical point of view, could open room for revision. Despite this, they agree that the arguments should be buried by the ministers.
Embargoes for clarification — a type of appeal presented by Bolsonaro’s lawyers and other convicts involved in the crucial core of the coup plot — make it possible to point out obscurities, inaccuracies, contradictions or omissions in a decision.
The former president’s defense has also signaled that it intends to file yet another appeal by speaking of “future infringing embargoes”. This other class allows the merit of actions to be re-discussed, but it is only applicable to the others.
In Bolsonaro’s case, he only voted to acquit him. On Tuesday (21), the minister asked to leave the First Panel and should not participate in the trials relating to the appeal phase.
Luisa Ferreira, professor at FGV Direito SP, says that the defense prioritized the debate on reducing sentences. Despite this, he states that the conviction must be maintained by the court, even considering some of the theses plausible.
Among them, the debate on the possibility of joint conviction for the crimes of attempted coup d’état and attempted violent abolition of the democratic rule of law stands out. In this case, the existence of a material competition, which results in the sum of the penalties, or a formal competition, in which the highest penalty is applied, is also discussed.
“Through one action, did the defendant commit two crimes or are there two actions with two results? This is an important issue of punishment. Firstly, I already think the application of the two crimes is debatable. And, in addition, there is the question of what the crimes are,” he says.
Claudia Barrilari, PhD and director of IBCCrim (Brazilian Institute of Criminal Sciences), agrees that, as it was presented, the appeal has little chance of changing the decision.
“These are points that, in my opinion, can no longer be reviewed in the motion for clarification, whose integrative nature aims to clarify, and not re-discuss the merits of the decision, as seems to be the objective of the appellant lawyers”, he states.
Professor Antônio José Martins, from Uerj (in the State of Rio de Janeiro), considers that there is a technical margin for revision, but sees a low probability of this occurring.
He highlights, for example, the discussion about bis in idem in the sense of using the same circumstance to aggravate the sentence more than once and about mediate authorship — when an agent uses another person as an instrument to commit a crime.
The professor states, however, that it is unusual for the Supreme Court to reopen debates on the merits in clarification embargoes. “The likelihood of major transformations resulting from declaration embargoes is small, especially because it would subvert the very nature of the resources.”
Criminalist Renato Vieira, PhD from USP, assesses that the ministers of the First Panel should judge that the matters presented in the embargoes exceed the limit for this type of appeal and, consequently, deny them.
From then on, the defense has two paths: oppose new embargoes for declaration or infringing embargoes. The expectation is that at some point the rapporteur will consider the delaying appeal, that is, that the defense is trying to delay the process, and determine the final decision.
Only then should the court decide where Bolsonaro will serve his sentence: in a common prison, in a military unit or under home care. The court expects this phase to end this year.
