RENATA GALF
SÃO PAULO, SP (FOLHAPRESS)
The understanding of the STF (Supreme Federal Court) that the first defendants tried and convicted for the acts of January 8 had committed both the crime of coup d’état and the abolition of the democratic rule of law is the target of criticism by experts consulted by the report .
There are two legal perspectives on the case: 1) that there was in fact the commission of more than one crime or 2) that, despite the fact appearing to fit into more than one criminal type, it would be necessary to choose just one of them to avoid punishing a single conduct twice – which is prohibited in the legal system.
The report interviewed 7 experts in the field of criminal and constitutional law. Among them, only 1 agrees with the STF’s interpretation. Another 5 consider that there was double punishment for the same fact, and 1 understands that the most appropriate would be to punish for just one crime, but believes that it can only be said whether there was double punishment based on the analysis of each case.
Experts point out that this issue may be questioned in appeal to the STF, in the so-called embargoes. The type of possible appeal, however, will depend on the content of the judgment, a document that formalizes the terms of the decision.
The STF’s understanding was that, by invading the buildings of the three Powers, the participants were committing the crime of trying to “abolish the democratic rule of law, preventing or restricting the exercise of constitutional powers”, which carries a penalty of 4 to 8 years in prison, and, at the same time, they had the intention of trying to depose the legitimately constituted government – whose penalty is 4 to 12 years in prison.
The argument to say that there was an attempted coup is that those involved in the acts expected that, with the destruction and seizure of the buildings, there would be a need for a Law and Order Guarantee operation, from which the military would support the deposition of the elected government.
In the case of the first defendant, the total sentence determined by rapporteur Alexandre de Moraes was 17 years. He was followed by ministers Edson Fachin, Luiz Fux, Dias Toffoli, Cármen Lúcia and Rosa Weber.
Ministers Luís Roberto Barroso and André Mendonça understood that it would not be possible to convict the defendant for both crimes.
Barroso understood that the crime of coup d’état would be constituted and that this would already include the crime of abolition of the democratic rule of law.
Mendonça considered that there would be a crime of abolition of the democratic State, arguing that the means used by the invaders would not be adequate to achieve the result of the coup.
The two crimes at the center of the debates were recently included in Brazilian legislation, in 2021, so there is no jurisprudence guiding their application.
Professor Diego Nunes, professor of the history of criminal law at UFSC (Federal University of SC) and organizer of the book “Crimes against the Democratic State of Law”, considers that the Supreme Court’s decision resulted in double punishment for the same fact.
For him, it would be a case of applying only the crime of coup d’état, which he sees as broader and more serious, and which would include the content of the crime of abolition. “A coup by the State, even if it initially directly affects the Executive, the government, it affects the freedom of the Judiciary and the freedom of Parliament.”
Also for Oscar Vilhena, professor at FGV Direito SP, the cumulative application of the two penalties is incorrect. He assesses that, in this specific case, the crime of coup d’état ends up absorbing the crime of abolition of the democratic State, as occurs in cases such as bodily injury and homicide.
“The interpretation that seems most correct to me is that the way to achieve the coup is a rupture, an attempt at abolition”, he says. On the other hand, Vilhena reflects, an attempt to close the STF, in isolation, would only be the crime of impeding the exercise of Powers.
For criminal lawyer Frederico Horta, professor of criminal law at the Federal University of Minas Gerais, double punishment ended up prevailing for the same attack on democratic institutions.
He considers that the conduct that would best fit would be a coup d’état, with the greater penalty for this crime being one of the arguments. “This is an indication that this crime encompasses the entire unfair nature of this fact, not only the threat to the Executive Branch, but also the threat of such an attempt to the other Branches.”
Also in the opinion of Mariângela Gama de Magalhães Gomes, professor of criminal law at USP, there was a double punishment for the same conduct.
She says, on the other hand, that the crime that would best fit January 8th would be abolition, arguing that it would absorb the crime of coup d’état, which would be the impediment of the exercise of one of the Powers.
She has this interpretation, despite the fact that the penalty for a coup is higher – which for her could eventually be a point to criticize in the legislation.
Even though she disagrees, Mariângela explains that in principle she sees no error in the STF’s decision, but that it is necessary to evaluate the arguments that will appear in the ruling.
Lawyer Renato Vieira, president of IBCCrim (Brazilian Institute of Criminal Sciences), considers that there was double punishment. He states that, in the concrete situation, it is necessary to look at the purpose of the agents.
“They confronted the various Powers? Yes, but what is the main reason and what is the main objective they wanted to achieve? The deposition of the elected government, and that is a coup d’état.”
Retired judge Wálter Maierovitch, in turn, agrees with the position of the majority of the court that the two crimes are autonomous and that both were committed. He criticizes, however, the dosage of penalties, which he considered excessively high.
For Maierovitch, each of the crimes protects different assets. The crime of violent abolition would protect democracy, while the coup d’état protects the republican regime.
“What is the conduct aimed at abolishing the democratic State that was attempted? It’s all this regimentation and the solution to the coup”, he says. “What is the attack on the Republic? Trying to terminate Lula’s inauguration.”
For Chiavelli Falavigno, professor of criminal law at UFSC, the crime of abolition would function as a stage, a presupposition, to arrive at the coup d’état, and the safest reasoning, in accordance with the principle of minimum intervention in criminal law, would be that of condemning for just one of them.
She emphasizes, however, that imputing both crimes is a possible interpretation, depending on the evidence. For her, the understanding of whether or not there was double punishment has to be analyzed on a case-by-case basis.
On January 8, 243 people were arrested in the act inside the buildings and in Praça dos Três Poderes, according to the STF. Another 1,927 camped in front of the barracks were taken to the Police Academy, of which 775 were released.
To date, 1,345 have been denounced by the PGR (Attorney General’s Office) and have become defendants, who are now awaiting trial (only 3 have been tried so far). Among them, 232 complaints are similar to those already judged – including more serious crimes; another 1,113 correspond to less serious crimes and are suspended for analysis as to whether there will be an agreement.
Currently, 117 remain in prison for undemocratic acts and attacks on the buildings of the three Powers.
CRIMES AGAINST THE DEMOCRATIC STATE IN THE 8/1 CONDEMNATION
Violent abolition of the democratic rule of law: When someone attempts, with the use of violence or serious threat, to prevent or restrict the exercise of the three Powers. Penalty of 4 to 8 years in prison.
Coup: It is the attempt to depose, through violence or serious threat, the legitimately constituted government. Penalty of 4 to 12 years in prison.
The post STF decision against 8/1 defendants is criticized for double punishment and should be appealed appeared first in Jornal de Brasília.
Source link
THE NAIS IS OFFICIAL EDITOR ON NAIS NEWS