Once the president’s veto () has been overturned, the law that benefits the former president () and reduces sentences for those convicted of January 8 and the coup plot will depend on defense requests for punishments to be recalculated on a case-by-case basis. But its constitutionality may still be challenged.
This Thursday (30). He had been completely rejected by the PT member. The proposal, which had been articulated since the end of last year, was an alternative to the original project that provided for the granting of an amnesty.
Experts say that, after being published, the law will already take effect. With this, the defenses of accused and convicted people can request immediate application, depending on each person’s situation. The expectation is that the decision will be made by the minister.
Publication
First, the law needs to be published. There is a constitutional deadline of 48 hours for the President of the Republic to promulgate the project in the event of a veto overturned. If the government does not do so, the responsibility passes to the president of , (-AP), with the same deadline.
With the publication of the law, says Maíra Salomi, vice-president of the Criminal Law Commission of the IASP (São Paulo Lawyers Institute), the effect is immediate. It depends on each case, but if the convicted person is entitled, defense requests can be made on the same day.
“With the publication, lawyers for each of the convicts must formulate a request in the criminal execution records requesting the application of the new law, which, as it is more beneficial, can be applied in cases already judged”, says the criminalist.
Orders
In general terms, it says that the penalties for the crimes of attempted coup d’état and violent abolition of the democratic rule of law cannot both be applied in the same context. In this case, the more serious punishment of the two applies, plus an increase in the sentence.
It also sets a shorter time to serve the sentence for progression to the regime for these crimes, regardless of repeat offense or use of violence or serious threat, as well as reducing the sentence for crimes committed in a crowd context.
Lawyer and doctor in criminal procedural law from USP Renato Vieira states that defenses can make simple requests addressed to the case’s rapporteur — depending on the stage at which the matter is (still in action or already in criminal execution) — asking for immediate application.
In the case of the processes of the acts of January 8, 2023 and the coup plot, the reports have been concentrated on the figure of minister Alexandre de Moraes. He is the one who must decide how the legislation applies to penalties already set, without the need to take it to the class.
Decision
FGV Direito SP professor Luísa Ferreira states that there is not much room for interpretation. “It is mandatory that a new law that benefits the defendant be applied,” she says. The only exception for the judge not to apply the new law would be for the magistrate to consider it unconstitutional.
“There is this caveat,” she says. “So, the party provokes, and Minister Alexandre says, for example, that he will not apply the law because it is unconstitutional. There is an incident of unconstitutionality, when there is a provocation of non-application of the law in that specific case.”
Moraes, in this hypothesis, could rule out the application of the law in a specific case in a monocratic way, without necessarily going through the plenary. The difference is that this type of measure only applies to the process under discussion, it does not have an effect that applies to everyone.
There is also a scenario in which parties from the government base sue the (Supreme Federal Court) through an ADI (direct action of unconstitutionality). In this case, the decision is made by the court plenary, including the possibility of paralyzing other actions.
