With the main process being by decision of the minister, the former president’s legal assistants () assess that the defense can file a criminal review action with the (Supreme Federal Court).
Although this is likely to happen, it should be distributed to the rapporteur of one of the ministers of the court’s Second Panel, a panel that has ministers sympathetic to Bolsonaro among its members.
Two of them, Kassio Nunes Marques and André Mendonça, were nominated by the former president to the Supreme Court. Luiz Fux was previously a member of the First Panel and voted for Bolsonaro’s acquittal.
In addition to them, ministers Gilmar Mendes and Dias Toffoli make up the Second Panel.
Criminal review can only be presented by defenses after definitive convictions of defendants. The action, which is autonomous, aims to invalidate the sentencing decision.
The Supreme Court’s regulations provide that these review actions will be distributed to ministers from the group that did not judge the convicted person — that is, in Bolsonaro’s case it would go to the Second Panel — and, in the event of an appeal, they will be judged by the court’s plenary session.
A good number of actions of this type that come before the Supreme Court are automatically rejected, without analyzing their merits. They are often actions signed by the convicts themselves, presented through handwritten manuscripts.
According to the Code of Criminal Procedure, a review can be admitted by a court under three conditions.
The first is when the sentencing decision is contrary to the text of the law or the evidence in the case. Another hypothesis is if the conviction is based on testimonies, examinations or documents that are proven to be false.
Finally, review is also permitted if new evidence of a convicted person’s innocence or a circumstance that authorizes a special reduction in sentence is discovered.
“It is an action that can only be used by the defendant, by the convicted person, it can never be used by the prosecution, by the Public Prosecutor’s Office. There is no deadline [para apresentar]it could be in a year or in five years”, says Raquel Scalcon, professor of criminal law at FGV Direito SP.
“In Bolsonaro’s case, it seems to me that the defense would try to rely on a violation of the law or the evidence in the records. It turns out that this section is the most subjective of all, and it is the most difficult for you to win. As a rule, if you show that you have false evidence or new evidence that shows innocence, the criminal review is more objective”, he states.
Bolsonaro’s defense had until the end of Monday night (24) to present the so-called embargoes for clarification, which would question possible omissions or contradictions in the decision that condemned the former president.
However, they gave up presenting this appeal and intended to file infringing embargoes, which could review Bolsonaro’s conviction.
In theory, there would be a deadline of next week to present the infringing embargoes, but there is consolidated jurisprudence in the court not to allow this to happen when there are less than two votes for the acquittal of the defendant in the class — and in Bolsonaro’s case there was only one, that of Luiz Fux.
Their lawyers, Celso Vilardi, Paulo Bueno and Daniel Tesser, said they intend to present these infringing embargoes even after the process is closed.
Officially, they are still not talking about review action. But interlocutors of the former president who follow the process do not rule out this possibility.
Convicts from other famous trials in the Supreme Court even filed criminal review actions, such as the case of publicist Ramon Hollerbach Cardoso, in the Mensalão.
In 2017, minister Edson Fachin denied following through (i.e., deemed unfeasible) the action he presented. The minister argued that the request was not based on new evidence discovered after the conviction, and that the arguments presented by the defense did not invalidate the conviction.
Criminal review is not intended to function as a mere instrument of non-conformity on the part of the convicted,’ said Fachin at the time.
