The proposal to reduce penalties a () approved on Wednesday (10) creates an exception to the rule on the subject and, therefore, can be challenged, in the opinion of experts consulted by the Sheet.
They speak of a mistake in the project, which presents a change in the accumulation of penalties for anti-democratic crimes, and mention the possibility of a veto by the president () based on legal arguments.
The rapporteur’s proposal (Solidariedade-SP) will now be evaluated in the , after having been approved in the Chamber by 291 votes against 148. The text proposes a new rule to add the penalties for crimes against democracy and foresees changes in the regime progression for some crimes, leaving others out.
If approved, Bolsonaro could spend less time in a closed regime (between 2 and 4 years, compared to an estimate in today’s scenario of between 6 and 8 years). Additionally, the total sentence of 27 years and 3 months would be reduced.
The conviction in the (Supreme Federal Court) is the result of the sum of five crimes, including: attempted violent abolition of the democratic rule of law, which earned the politician 6 years and 6 months in prison, and a coup d’état, with 8 years and 2 months.
With the text of Congress, the former president’s total years in prison would be reduced because, in the case of anti-democratic crimes, only the penalty for the one that generated the longest period of imprisonment (coup d’état) would be applied, with an increase of one-sixth to half, according to Lucas Miranda, master in law from UFMG (Federal University of Minas Gerais). As a result, the politician’s total sentence could be around 22 years, in the mildest scenario.
The expert explains that there are three ways to calculate the sentence in contexts with more than one crime. The first is through material competition, applied when the defendant commits different crimes, with more than one action. In this case, the penalties for the crimes are added. This was how the STF ministers.
Another hypothesis is formal competition, when the defendant commits more than one crime with a single action. “Imagine that I throw a stone, break the car window and still hit the driver. With that, I commit the crime of damaging the car and the crime of bodily harm. It’s the same act, of throwing the stone, that made me commit both crimes”, explains Miranda.
If, in this scenario, there are autonomous desires (intention both to break the car and to hurt the driver), the penalties are also added, in the case of the so-called improper formal competition.
In the case where there is only one intention (in the example, if the defendant wanted to break the glass, but accidentally injured someone), the specific formal competition applies, in which only the penalty for the most serious crime is computed, with an increase of one sixth to half.
“What the project envisages is applying the formal competition itself in all cases for crimes against the democratic rule of law, both in different actions and in an action with autonomous purposes”, says Miranda.
Thus, in crimes against democracy, the judge would always have to apply the most serious crime, with an increase, and not add up the crimes.
For Miranda, the text is “wrong, as it creates an exception to the rule of applying penalties in cases where there is more than one crime, but on a case-by-case basis, only for cases of crimes against the democratic rule of law, without any legal justification for this”.
Diego Nunes, law professor at UFSC (Federal University of Santa Catarina), understands that the project generates a “classic reason for a veto by the President of the Republic”.
He states that applying the formal competition itself makes sense for those who were convicted only for January 8, since they would be in a single context (the day of the attack), divided into several crimes.
This would not be the case, however, with the coup leadership, which, according to the STF, . “In this case, the law requires the penalties to be added,” he says.
Nunes understands that the project “forces the judge to apply the opposite of what the Penal Code says” and could generate a “rain of actions” predicting its unconstitutionality, in addition to a presidential veto.
The expert also states that changes in the rules for regime progression constitute coercion in the course of the process, generating a gigantic ripple effect throughout the criminal system.”
“This could be considered an ad hominem legislative change [ou seja, feita para alcançar uma pessoa específica] and, therefore, be vetoed by the president or be a reason for the filing of an ADI [Ação Direta de Inconstitucionalidade] in the STF, considering that it violates the logic of the law being general, abstract and impersonal.”
For Pierpaolo Cruz Bottini, lawyer and professor of criminal law at USP, the change in regime progression proposed in the project “perpetuates an unequal application of criminal law, which has existed in Brazil since colonial times”.
“Those who commit property crimes receive the harshest treatment, from the police approach to the execution of the sentence, and those who commit tax, corruption or crimes against the democratic rule of law receive more beneficial treatment.”
He calls the section that provides a specific rule for the accumulation of penalties for anti-democratic crimes technical. “There is a brutal violation of the principle of equality. There is no logical or legal reason to establish this exception for crimes against the rule of law.”
