The one that denied the first appeals of the former president (PL) in the case of the coup plot leaves room for the (Supreme Federal Court) to determine the start of the sentence next week.
This is the conclusion reached by lawyers consulted by Sheetbased on the remaining deadlines for the defense, the instruments still available to the former president’s lawyers and expectations about the paths that ministers can take.
The projection considers the case and the jurisprudence pacified in the court on the appropriateness of the so-called embargoes for declaration and infringing embargoes.
The ruling published this Tuesday deals with the trial in which the first embargoes filed by Bolsonaro against the leader of an attempted coup d’état were rejected.
Now, the former president’s lawyers can file new embargoes for declaration or infringing embargoes. Motions for clarification are a resource that allows clarification of a point in a decision. They must be submitted within five days.
Infringing embargoes, in turn, make it possible to re-discuss the merits of criminal actions, but, according to the Supreme Court’s own understanding, they are an appropriate resource only in the event that at least two ministers have disagreed with the others. This did not happen in the case of Bolsonaro. He had four votes for conviction and only one, from Luiz Fux, for acquittal.
USP criminal procedural law professor Gustavo Badaró says he considers the interpretation an error, because the court’s rules do not require both votes, but states that the jurisprudence is consolidated in this sense and should not be revised.
A similar scenario occurred in the trial of appeals filed by the defense of the former president, convicted by the STF in 2023 for the crimes of passive corruption and money laundering on charges of .
The court had already rejected the motions for clarification presented by Collor and, in a monocratic manner, Moraes rejected the infringing motions and ordered the immediate execution of the prison sentence.
The justification, also extended to appeals from two other convicts in the case, was that the appeals were of a delaying nature, that is, they aimed to delay serving the sentence.
If Moraes actually makes a monocratic decision in this sense, Bolsonaro’s defense can appeal, with a , which could take the case to the First Panel. Moraes himself can also do so by taking the decision to a referendum among his colleagues.
Infringing embargoes can be filed within 15 days from the publication of the decision on the merits of a trial. In Bolsonaro’s case, this occurred on October 22nd. As the count was interrupted with the declaratory embargoes, if this deadline is applied, it will go until November 28th.
But according to Pamela Torres Villar, a specialist in criminal law from the University of Coimbra, the jurisprudence on the appropriateness of infringing embargoes could serve as a basis for decreeing the closed regime as early as next week. For her, as the appeal is not technically applicable, the final decision may be decreed even before the end of the deadline for filing.
In theory, the defense can still file new motions for clarification if it understands that the answer to the previous question still has unclear points.
But also in this hypothesis, Collor’s case serves as a precedent, and the risk for Bolsonaro’s legal strategy remains: Moraes may declare the appeal “merely delaying”.
Another factor that could weigh in on the arrest being declared next week, according to Pamela, is the speed in which the process is carried out. “His office [Moraes] It’s very fast. Not only in these high-profile cases. Overall, it is a very productive cabinet. They usually make decisions quite quickly”, he says.
Criminalist Renato Vieira, PhD in criminal procedural law from USP, says that Bolsonaro’s case exemplifies the problem of judging criminal actions directly by the STF, without another degree of jurisdiction.
Infringement and clarification embargoes, the only possible resources for the defense of the defendants in this case, are not broad review resources, as would be an appeal to the second instance. “This opens up a configuration problem for the Brazilian system,” he says. “And the Supreme Court has to deal with it.”
