The understanding that opened up space for the minister to determine that of the former president () this Tuesday (25) has been established for years in the (Supreme Federal Court), but is questioned in the legal world.
The deadline for the defense to file new arguments — an appeal used to clarify a decision point — ended last Monday (24), but the former president’s lawyers could still try another type of appeal: .
There is, however, solid jurisprudence in the court to the effect that offenders — which allow the merits of actions to be re-discussed and have a longer term — can only be admitted when there are two votes for acquittal. This is not Bolsonaro’s situation.
Experts disagree on this interpretation. One party considers that, as it is not based on law or regulations, it may violate the right to full defense. Another believes that there is no irregularity and that the understanding is supported by law.
Bolsonaro was convicted in the First Panel by a score of 4 votes to 1. The only one to disagree was the minister, who voted to acquit the former president.
The Code of Criminal Procedure provides for the possibility of violators when there is a non-unanimous second instance decision. The legislation does not address the Supreme Court or how many votes are needed for the appeal to be analyzed by the magistrates.
The Internal Regulations of the STF establish that the possibility of violating the decision of the plenary session depends on the existence of at least four dissenting votes. The text says nothing about how many votes are needed in the classes or about the nature of the divergence.
The main precedent is that of the former mayor of São Paulo, convicted of money laundering. In 2018, the court established the theory that violators are valid against a majority decision in criminal proceedings in the classes as long as there are two acquittal votes in favor of the defendant.
The logic is that, in the second instance, the groups are normally composed of 3 judges. A non-unanimous decision there requires 1 dissenting vote (0.33 of the total number of judges). Hence why, in the STF plenary, the number is 4 (0.33 x 11 = 3.66) and, in the Supreme Court, 2 (0.33 x 5 = 1.65).
Thus, according to Raquel Scalcon, professor at FGV Direito SP, neither the Criminal Procedure Code nor the STF regulations require a qualified divergence. This was a gap filled by ministers based on a logic of proportionality.
For her, as the criterion is not provided for in any of the standards, this jurisprudential construction is not the most appropriate from the point of view of legality. “There was a creation of a rule that is not written, a worse rule, which is against the defendant, against the right of defense.”
Criminalist Renato Vieira, PhD in criminal procedural law from USP, says that this interpretation limits a resource created to favor the defense and goes against the legislator’s logic: “Instead of guaranteeing the exercise, it undermines the right to appeal activity.”
For the lawyer, the debate is not limited to the former president’s case and involves a broader political-criminal choice, which must be revisited. The possibility of the appeal being analyzed does not mean an automatic victory for the defense; violators can be denied, he says.
The more restrictive understanding of infringing embargoes has already been applied, by Moraes himself, in the criminal action that convicted the former president and, more recently, in the case of hairdresser Débora Rodrigues dos Santos, the .
Retired prosecutor from São Paulo, lawyer Fauzi Hassan Choukr says he does not see excesses in the Supreme Court’s interpretation. For him, the understanding is supported by both the law and the international system that deals with the right to defense.
“[As normas devem garantir] that the accused party in the criminal proceedings has the right to protest against the decision that is harmful to him in an effective and complete manner. Now, [mas] This does not mean that there must be an appeal against any and all decisions”, he counters.
Maíra Salomi, vice-president of the Criminal Law Commission of the IASP (São Paulo Lawyers Institute), considers, on the one hand, that this jurisprudence brings speed to the process and a greater level of legal certainty to a gap in the internal regulations.
On the other hand, he believes that this interpretation contradicts the principle of broad defense. “We are dealing with a criminal conviction, which involves custodial sentences, so it should have a more beneficial interpretation, and not a more restrictive one.”
