The deadline for presenting appeals in the trial of the coup plot could lead the minister, of the (Supreme Federal Court), to order the definitive arrest of the former president () and the beginning of serving his sentence at the beginning of next week.
since this Saturday morning (22), by order of Moraes. He stated that there was a risk of the former president fleeing and ordered him to go to a Superintendency room in Brasília.
This, however, is not yet the order to serve the 27 years and three months sentence to which he was sentenced.
The decision on Bolsonaro’s definitive arrest could take place in the next few days, after the deadline for presenting new appeals by the defenses of convicted defendants ends on Monday (24).
Members of the STF state that a determination could be made as early as Tuesday (25), if Moraes maintains the understanding that a second presentation of appeals would only be a delay and would not have the capacity to change the outcome of the trial.
Moraes could deny these appeals individually, determine the start of serving the sentence and send the case for confirmation to the First Panel of the STF. This expectation also takes into account the history of decisions taken by Moraes, the instruments available to the former president’s lawyers and the paths that ministers can take.
The projection, according to lawyers interviewed by the Sheetconsiders the case and the jurisprudence pacified in the court on the appropriateness of the so-called embargoes for declaration and infringing embargoes.
Last Tuesday (18), the trial ruling was published in which the first embargoes for clarification presented by Bolsonaro against , on accusations of being the leader of an attempted coup d’état, were rejected.
Now, the former president’s lawyers are preparing new embargoes for clarification, a resource that allows clarification of a point in a decision. They must be presented within five days, which ends at the end of Monday.
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, 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 in fact makes a monocratic decision in this sense, Bolsonaro’s defense may present 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 December 1st.
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.”
