The difference in the sentences of the former president () and others in relation to those of those convicted in other political scandals since redemocratization, such as and , can be explained by the quantity, severity and nature of the crimes tried, according to experts.
In the case of the coup plot, the initial sentences of those accused of being part of the crucial nucleus range from — in the case of Bolsonaro — to 2 years — in the case of the whistleblower.
An analysis of the first convictions in these scandals — also considering subsequent ones, acquittals and sentence reductions in the three cases, without including pardons, pardons or annulments — indicates that those involved in the attempted coup d’état may serve more time in prison than most of those found guilty in other cases, with different criminal types.
With the exception of the deputy (PL-RJ), who had part of the process suspended after , the defendants in the coup plot were convicted of all five crimes charged to them by the (Attorney General’s Office).
In the case of the monthly allowance, characters such as the former minister and former PT president José Genoino received sentences of 10 years and 10 months and 6 years and 11 months, respectively.
Dirceu was initially convicted of the crimes of gang formation and active corruption. Penalties for these crimes range from 1 to 3 years and from 2 to 12 years.
The former PT president was also convicted of conspiracy, in addition to passive corruption in principle, the penalty for which is 2 to 12 years in prison under the Penal Code.
Publicist Marcos Valério, accused of operating the scheme, received a greater sentence, being sentenced to 40 years and 4 months in prison for the crimes of gang formation, active corruption, embezzlement, money laundering and currency evasion.
In the Lava Jato case, Lula was convicted of the crimes of passive corruption (2 to 12 years) and money laundering (3 to 10 years) with an initial sentence of 9 years and 6 months.
Convicted of active corruption (2 to 12 years), criminal organization (3 to 8 years) and money laundering (3 to 10 years), businessman Marcelo Odebrecht initially received a sentence of 19 years and 4 months.
Luisa Ferreira, lawyer and professor of criminal law at FGV Direito SP, states that the penalties for those convicted of the coup plot can be considered high, but this is due to the sum of the conduct.
“There were five in total [na trama golpista]. In the Mensalão, for example, the majority were convicted of two or three crimes. (…) In Lava Jato, there are countless developments and processes, not necessarily all by the same Court. The difference is in the number of crimes”, he says.
Criminalist Tulio Vianna, professor of criminal law at UFMG (Federal University of Minas Gerais), says that the monthly allowance, Lava Jato and the coup plot have little in common other than having placed high-ranking authorities in the Republic in the dock.
He also assesses that Bolsonaro and others accused of the plot received high sentences for the number of crimes. “When these penalties are added together, the result is high. It is not a problem with the law, but with the choice of framework made by the court.”
Lawyer and professor of criminal law at UFRJ (Federal University of Rio de Janeiro) and Uerj (State University of Rio de Janeiro) Salo de Carvalho says that, in Brazil, the calculation of sentences takes place in three phases, regulated between articles 59 and 76 of the Penal Code, and reconciles objective and subjective criteria.
“It’s a system [de aplicação de penas] quite complex, consisting of several stages, in which the judge must analyze a series of circumstances. It is not an arbitrary choice by the judge. Logically, some circumstances are more open than others, which can give room for differentiation.”
The penalty can be mitigated if the offender is under 21 years old on the date of the incident or over 70 years old at the time of conviction. Or it can be aggravated in cases of crimes committed for futile reasons, using cruelty or against children.
If it is up to the Judiciary to apply it to specific cases, the length of sentences established for each crime, which include minimum and maximum limits, are choices made by the Legislature.
Antônio Martins, also a professor of criminal law at Uerj and UFRJ, defends the Brazilian calculation model and claims that it is more accurate than some foreign ones. On the other hand, he considers some penalties to be too high and states that there are disproportionalities.
“Intentional bodily injury in traffic, for example, is punished with a higher penalty than intentional bodily injury, whether in traffic or not. It makes no sense that a crime committed with intent is less serious than a crime committed through carelessness,” he says.
Salo says that these discrepancies can also be observed in the crimes applied to the compared cases. For him, the fact that the maximum sentence of 12 years is the same for the crime of passive, present in Lava Jato and the Mensalão, and for the coup and abolition crimes, indicates this disproportion.
“The penalties are almost equivalent, but the legal good ‘Rule of Law’ is more important than the legal good ‘public administration’. This is because the Penal Code, which dates back to the 1940s, was reformed punctually, but not with a global vision of the criminal repression system”, he says.
For Luísa, a solution would be to increase the Judiciary’s room for maneuver to the detriment of the limits established by the legislator. “The judge has the case before his eyes. The legislator thinks in the abstract. He sees the ‘thousand possibilities’ how a coup can be attempted, for example. We should have more flexible bases for the judge, in a well-founded way, to indicate what is the appropriate penalty for the specific case”, he states.
