The First Panel of Brazil’s Supreme Court (STF, in Portuguese) has decided to accept the indictment presented by the Attorney General’s Office (PGR, in Portuguese) against former President Jair Bolsonaro (Liberal Party) and seven other people, who made up the first group of defendants in the cases of attempted coup and violent abolition of the democratic rule of law.
As a result, they have become defendants and will face criminal charges for the crimes of armed criminal organization, attempted violent abolition of the democratic rule of law, coup attempt, damage qualified by violence coupled with serious threats against the state’s assets and with considerable damage to the victim, and deterioration of listed heritage. The sentences could range from 20 to 26 years in prison.
In his vote, the case’s rapporteur, justice Alexandre de Moraes, gave a long presentation of the pieces of evidence previously presented by the PGR and defended the acceptance of the charges and the opening of a criminal action.
“At first, what is required of the complaint is the materiality of the crimes imputed to the accused and the materiality of the crimes has already been recognized by the Supreme Court in 474 complaints that have identical materiality, the same crimes narrated despite the different participation of several people accused. The Supreme Court has already recognized the materiality of these crimes with 251 convictions, 4 acquittals and 219 ongoing criminal proceedings,” he said.
Justice Flávio Dino was the second to vote. He said he has doctrinal and jurisprudential comfort in accepting the complaint. “Based on the premise that these crimes must be committed in combination, there is technical feasibility for the complaint to be accepted,” he argued. “We’re not making a legal classification here. We’ll do that when the time comes,” he said.
“Some say there wasn’t a dead person on January 8. On April 1, 1964, there were no deaths either, but they came later. Coups kill,” said Dino. “This kind of argument is an aggression against families who lost their loved ones during a dark period in our history.”
“Therefore, I think that the complaint has the essential materiality and viability because there was violence, and it could produce enormous damage. And the fact that this was not the case does not exclude its typicality”, defended Dino, following the rapporteur’s vote.
Luiz Fux, a dissenting voice in the First Panel of Brazil’s Supreme Court, made several points regarding the PGR’s complaint. Using technical language, the justice even mentioned a request for examination of the case records of the woman who graffitied with lipstick one of the statues in front of the Supreme Court building to argue that the penalties applied in these cases should be better pondered. “Justice is not something you learn, but something you feel,” said Fux.
“Judges, in their lives, always have to repeat their mistakes and successes,” he added. Despite his remarks, the justice praised the efforts of the PGR and of the rapporteur, following Alexandre de Moraes in accepting the complaint.
“Dictatorship kills,” said the dean of the panel, justice Cármen Lúcia, who summarized the actions observed by the Supreme Court in the days and months leading up to January 8, 2022. “There has been more than one attempt to silence democratic institutions, which is extremely serious. In fact, this was recognized by the lawyers themselves,” said the minister.
“We need to go back to January 8 to reveal this machine that tried to dismantle democracy,” said Lúcia, recalling that more than 80% of the Brazilian population opposed the anti-democratic acts of January 8, according to polls.
“The seriousness of this fact, and the continuous taking of illicit and criminal acts and measures were carried out and culminated in the so-called ‘Selma party’,” said the justice, about the name given to the January 8 attacks, recognizing, therefore, the complaint presented by the Attorney General’s Office, voting to open the criminal action. “Brazil needs to know what happened, and whoever committed the crime has to pay for it,” she said.
The last justice to vote was the president of the collegiate, Cristiano Zanin, who considered that there was materiality and plausibility in the complaint the PGR presented. “There are several elements supporting the complaint we are analyzing here,” said Zanin.
Now that the indictment has been accepted, criminal proceedings will be launched to judge the case’s merit. The first stage is the pre-trial phase, when the prosecution and defense witnesses are called, as well as the testimony of the individuals charged and the final arguments of the Public Prosecutor’s Office. After this process, the justices will have to vote to convict or acquit the defendants and then stipulate sentences individually.
The defendants could only appeal to the plenary of the Supreme Court if the rapporteur – justice Moraes – had voted differently. Otherwise, their defenses can only file so-called motions for clarification, when details of the decision are questioned, such as the extension of the sentences without the possibility of revoking it. Once the motions for clarification have been voted on, the final judgment is made.
