With the end of the deadline for appeals in the coup plot process decreed by the minister of the (Supreme Federal Court), on Tuesday (25), the former president () began to serve the definitive sentence of 27 years and three months for his involvement in the attempted coup d’état.
Moraes ordered the case to be final and unappealable after the former president’s defense did not file new motions for clarification. For the minister, there is no legal provision for other resources.
The STF’s understanding is that infringing embargoes, another applicable appeal, would only be admitted if there are two divergent votes in the Panels. In the trial of the coup plot, only the minister voted to acquit the former president.
Bolsonaro had already been preventively detained at the headquarters in Brasília since Saturday (22), when Moraes understood that there was a risk of escape. They weighed in on the enactment of the measure with a soldering iron and the call for a vigil held by the son of the former president and senator Flávio Bolsonaro (PL-RJ).
Since then, Bolsonaro has remained in custody at the PF to serve his final sentence. Moraes understood that the defense’s request for the former president to serve his sentence at home, where he had been under house arrest since August, was hampered by preventive detention.
Understand the path to prison in the PF and what the prognosis for the former president was.
Why was Bolsonaro arrested at home and then at the PF?
Since August, the former president has been under house arrest at his home in Brasília. Moraes made the decision on the 4th of that month after understanding that Bolsonaro had failed to comply with precautionary measures banning the use of social networks after recording videos for supporters.
The minister had also ordered the use of an electronic ankle bracelet, and it was for violating this device that Bolsonaro had his preventive arrest ordered on Saturday (22) by Moraes.
What is preventive detention for?
Provided for in article 312 of the Penal Code, preventive detention has, among its objectives, to “ensure the application of criminal law”. The wording given to some hypotheses for enacting this measure, such as “guarantee of public order”, are considered vague by the professor of criminal law at UFRJ (Federal University of Rio de Janeiro) and Uerj (State University of Rio de Janeiro), Antonio Martins.
He considers, however, not to believe that this is the case with the former president. “There are more concrete hypotheses, for example, when there is a threat to the normal development of the process. Whether in relation to the production of evidence and witnesses, or a risk of flight. In the specific case of the former president, this was the reason for the decree of arrest”, he says.
How long can Bolsonaro be imprisoned in a closed regime?
The former president’s sentence totals 27 years and three months for the crimes of attempted violent abolition of the democratic rule of law, attempted coup d’état, criminal organization, damage to listed property and qualified damage.
In Brazilian legislation, regime progression – when a detainee goes from closed to semi-open or open – is governed by the Penal Executions Law. The rule provides that the defendant must serve between 16% and 70% of the sentence to alleviate prison conditions.
According to lawyers interviewed by Sheet, There are disagreements surrounding the calculation to determine how long Bolsonaro will remain in a closed regime.
For progression, percentages of 16% for non-violent crimes and 25% for violent crimes may apply to the ex-president’s sentences. There is also the possibility of unification, in which the incidence would be restricted to 25%. In both scenarios, Bolsonaro can.
Will the prison time served before the final sentence be reduced?
There is a legal provision for the time in which Bolsonaro was under house arrest and preventively detained in the PF, which began to be officially fulfilled on Tuesday (25).
Experts believe that the scenario for the former president is confusing. The reason is that Bolsonaro was placed under precautionary arrest — at home or at the PF — due to decisions taken following the developments in the accusation of obstruction of justice that weigh against him, his son and federal deputy Eduardo Bolsonaro (PL-SP), and Paulo Figueiredo.
“This certain confusion comes from a ‘door opened’ by the minister himself. Moraes will be able to say that the time in which he [Bolsonaro] was placed under precautionary arrest is not associated with this specific case, but rather with another investigation. But there is also room to consider in the calculation”, says lawyer Pamela Torres Villar, specialist in criminal law from the University of Coimbra.
What are the criteria for defining the location of the prison?
The Criminal Executions Law provides that custody of defendants must take place in penitentiary units close to their families and social surroundings. The rule, according to Villar, serves the resocializing function of sentences.
Martins states, however, that although the general rule is compliance in a prison unit, there is freedom for the judge to choose the location considered most appropriate. In Bolsonaro’s case, the professor explains that there are other circumstances to be taken into consideration.
“It makes sense, taking into account the risks that may exist to the physical integrity of someone who held the position of President of the Republic. In this sense, it seems worth discussing. But there is actually no express prediction”, he states.
Can Bolsonaro start serving time at home?
House arrest, explains Villar, tends to happen in two cases. The first would be to comply with a precautionary measure during the course of the process. This was Bolsonaro’s case from August until his arrest at the PF headquarters last Saturday (22).
The other hypothesis depends on the defendant’s health status. The criteria in these cases, provided for in the Criminal Executions Law, include advanced age (over 70 years old) and other health situations that justify serving the sentence at home.
Is it still possible to appeal the decision?
It is possible to file a motion for declaration. If filed, says Villar, these appeals would possibly be rejected. Furthermore, they can be considered “merely delaying”, that is, with the purpose of postponing the end of the process. This could lead to the former president’s defense being convicted of bad faith litigation and having to pay a fine.
Is it possible for Bolsonaro to reverse the conviction?
The possible path, according to Martins, is a request for criminal review, an autonomous action that allows the re-discussion of a definitive conviction. He emphasizes, however, that the criteria for the review to be accepted are very specific and the chance of success is low.
“It is generally presented with a certain distance from the conviction. Imagining the moment that the conviction occurred and that the same court recognizes that the conviction occurred against the facts, it seems very unlikely to me”, says the professor.
What is criminal review?
Provided for in article 621 of the Code of Criminal Procedure, this procedural class does not prescribe and can be presented at any time, even years after the final conviction.
“There are three criteria [para a revisão criminal]: the finding that the conviction contradicted the facts, the finding that false evidence was gathered or new evidence emerged that demonstrates the innocence of the convicted person”, says Martins.
