The federal deputy (-MG) may have complications in court for failing to comply with the decision of the minister, of the (Supreme Federal Court), by using a cell phone during a visit to the former president (PL).
The scenario, however, is considered unlikely by experts interviewed by the Sheet. They are also divided regarding the adequacy of the search and seizure request for the congressman’s cell phone, requested in a criminal report taken to the Supreme Court by the congresswoman (-SP).
The scene of Nikolas with a cell phone visiting Bolsonaro, who was under house arrest, was captured by TV Globo last Friday (21). On social media, the parliamentarian criticized the broadcaster for the filming and stated that he had no intention of violating Moraes’ August decision, which prohibits visitors to the former president from “using cell phones, taking photos or recording images.”
The fact, however, has already had repercussions for Bolsonaro, asking him to explain the use of the device.
On social media, Nikolas stated that he had not received prior notice of the restriction. “Without official communication, there is no way to allege non-compliance. I reiterate that at no time did I have any intention of failing to comply with a court decision.”
The deputy’s visit to the former president took place hours before the electronics. The attempt to damage the equipment caused Moraes to order the politician’s preventive arrest, which took place on Saturday (22).
After the images of Nikolas with the former president were released, deputy Erika Hilton presented a criminal report to the STF. The text says there is “strong evidence that the acts carried out by the Noticiado [Nikolas]especially the use of a cell phone with the defendant and interaction in a custody environment, not only violate a court order, but also suggest active participation in the coordination that preceded the escape attempt, configuring assistance, instigation or facilitation of non-compliance with a court order”.
The piece argues that there is sufficient evidence of the crime of disobeying the legal order of a public official, provided for in article 330 of the Penal Code and punishable by 15 days to six months, in addition to a fine. It also cites the possibility that Nikolas may have fallen foul of article 351 of the same code, regarding promoting or facilitating the escape of a legally imprisoned person. In this case, the penalty is imprisonment from six months to two years.
Finally, the representation requests the opening of a police investigation and the search and seizure of Nikolas’ cell phone, among other requests. This Wednesday (26), the PSOL bench in the Chamber of Deputies also stated that it had filed a request for an investigation with the PGR (Attorney General’s Office).
According to Luisa Ferreira, professor of criminal law at FGV-SP, Nikolas being caught using his cell phone could have legal implications, but the scenario is unlikely.
She understands that the objective of the judicial ban is to prevent Bolsonaro from using third parties to access the device. Therefore, non-compliance would result in implications for the former president himself, if he had not already had the precautionary measure aggravated by preventive detention and, now, by definitive conviction.
According to Luisa, just the fact that the deputy used his cell phone on the same day that the former president tried to take off his ankle bracelet is not enough evidence of a crime. Therefore, she also says she finds the request to seize the device “weak and reckless”, if there is no other evidence that associates Nikolas with an escape attempt.
For Ricardo Gueiros, law professor at Ufes (Federal University of Espírito Santo), the episode should not bring criminal consequences.
According to him, the crime that would best fit the case is 349-A of the Penal Code, about entering a prison establishment with a telephone, without legal authorization.
“If Nikolas had entered a typical prison establishment, the crime would have been categorically manifest.” The expert argues that the criminal type could extend to the case, since home confinement is a type of prison.
A caveat to this logic, however, is that, “in criminal law, there is a restriction on any type of interpretation that may be too extensive”, adds the expert. Therefore, he understands that the use of cell phones in this specific case would tend not to be penalized.
The request to seize the cell phone is reasonable, for Gueiros, “out of caution, and even for the protection of Nikolas himself [no sentido de resguardá-lo de uma acusação de tentativa de fuga]”.
For Marcelo Crespo, coordinator of the ESPM law course, the parliamentarian may have committed the crime of disobedience, if he was in fact aware of the prohibition. In this case, an implication in justice and the configuration of a crime would be likely.
“If he was aware of this decision, he has to answer for disobedience. But the question is: was he aware of this?”, asks Crespo. “If it were a decision in a Nikolas lawsuit, there would be no doubts. But, in this case, the lawsuit involves a third person. That’s why the answer in this case is not so objective.”
Crespo understands that, if the parliamentarian knew about the prohibition, it is necessary for the authorities to launch an investigation to investigate the conduct. Regarding the request to seize the device, the expert says it makes sense in the context, involving a request for a vigil that, according to authorities, could facilitate Bolsonaro’s escape, and an attempt to break the ankle bracelet.
