The defense of the former president () may try to reverse the conviction in the (Supreme Federal Court) for the coup plot after the minister closes the action and determines that the sentence will be served, but a.
The judge declared last Tuesday (26) the (expression used for a decision that can no longer be appealed), based on an understanding whose jurisprudence, although , is consolidated in the court.
The alternatives available to the former president’s lawyers to try to reform this decision are scarce, and the chances of a legal solution prevailing based on the current scenario are slim to say the least, say experts consulted by Sheet.
In a statement, Bolsonaro’s defense said they were surprised by the official end of the process. lawyer Celso Vilardi, who represents the former president, stated that he will oppose infringing embargoes despite the final and unappealable decision.
Infringing embargoes are an exclusive defense resource in the case of non-unanimous decisions. In the Supreme Court, the already settled interpretation is that they are only applicable in class actions when there are two votes for acquittal.
Criminal lawyer Lucas Miranda, professor of criminal law, considers that Moraes’ decision makes any new appeal unfeasible. This does not prevent embargoes from being filed, but it means that they should not even be received.
“There is a political issue related to filing these appeals, because, logically, there will be a discourse that there was no full possibility of appeal. This serves more for a political motivation than a legal motivation”, he states.
The alternative after the final judgment is . It is an action, not an appeal, aimed at correcting judicial errors, such as illegal decisions, based on false evidence or that can be reviewed in light of new elements.
For example, a video, which was not attached to the file, is discovered years later, showing that the killer is one person, and not another. Or, it turns out that the court convicted someone of simple trafficking and solely for the possession of caffeine.
“It seems unlikely to me that this argument has a high chance of success. This is not only because of the case, but because of the type of legal analysis that is carried out based on these options”, says lawyer and professor Ivan Zonta.
According to him, these actions are appropriate in very limited situations. “Usually it has to be something very blatant for it to fit into this option, to fit into these possibilities for filing a criminal review”, he states.
The Supreme Court’s internal regulations establish that, if the criminal review is filed against the decision of one group, the distribution of the action is made among the ministers of the other — in Bolsonaro’s case, the Second Panel. But the power to judge lies with the plenary.
Lawyer Christiano Falk Fragoso, professor in the criminal law department at Uerj (State University of Rio de Janeiro), cites another option: calling the Inter-American Commission on Human Rights.
This was one, which represents the general, former Minister of Defense and former candidate for vice on Bolsonaro’s ticket. Lima cited a “systematic violation of the right to defense.”
The procedure for activating the commission, which could take the case to the Inter-American Court of Human Rights, requires exhaustion of all legal channels available in Brazil. For this reason, dealing with offenders and criminal review is important, says Fragoso.
“[A defesa] doesn’t lose anything”, says the professor. “He can say: ‘I filed the appeal and they didn’t admit it’, disputing whether the Supreme Court’s jurisprudence requires two votes [para os infringentes] would not violate the principle of double degree of jurisdiction.”
The Inter-American Court of Human Rights is based on the American Convention on Human Rights. The analysis focuses on whether there were violations of any right provided for in the charter, such as the right to defense or silence, in addition to the principle of double degree of jurisdiction.
A decision by the international court may recognize a situation of violation, but does not have the power to annul or reverse a judicial decision in Brazil. In practice, it is something more political and symbolic than a legal tool to reverse a conviction.
