Coup plan really took place? Was there a crime? Jurists disagree

Operation Tempus Veritatis, launched by the Federal Police (PF) on February 8 at the behest of Minister Alexandre de Moraes, of the Federal Supreme Court (STF), has sparked controversy in the legal world due to several of its aspects. The key thesis of the operation itself, that there was a plan for a coup d’état in 2022, is contested by some jurists.

There are also disagreements about the possibility of criminalizing the conduct of those involved. Experts consulted by People’s Gazette have different views both on the text of the Penal Code related to the subject and on the interpretation of the facts investigated.

The legal action targets some politicians and military figures linked to Jair Bolsonaro, in addition to the former president himself. The investigation revealed the existence of a draft decree that proposed the arrest of Moraes and the calling of new presidential elections. The new accusations are mainly based on the testimony of Mauro Cid, Bolsonaro’s former aide-de-camp, and a video that shows the former president questioning the reliability of electronic voting machines in front of his ministers.

Alessandro Chiarottino, PhD in Constitutional Law from USP, is adamant in saying that, at least in view of what has become public so far, the authorities involved did not commit a crime. He notes that, in Brazilian Criminal Law, preparatory acts are not punishable, especially in criminal types such as “violent abolition of the Democratic Rule of Law” (article 359-L of the Penal Code) or “coup d’état” (article 359- M), which require violence or serious threat. “Everything that didn’t happen, as far as we know,” he says.

Fabio Tavares Sobreira, professor of Constitutional Law and specialist in Public Law, also highlights that planning or even preparing a crime are not punishable acts in Brazil. The Brazilian Penal Code, explains Sobreira, adheres to the concept of iter criminis, which means “path or itinerary of the crime”. This path is made up of four stages: consideration, preparation, execution and consummation of the crime.

The first two stages are never punishable under the Penal Code. For Sobreira, in the case in question in Operation Tempus Veritatis, there was not even a thought of a crime.

Rodrigo Chemim, professor of Criminal Procedure at Positivo University and doctor in State Law, presents a different view. He agrees that, in relation to article 359-L of the Penal Code, there was no crime in any of the conduct mentioned.

Regarding article 359-M, however, Chemim sees a possible link with January 8th, in which, for him, “there was actually violence for this purpose [de golpe]”. “Whoever acted in these terms that day committed the crime of attempting a coup d’état. And, under the terms of article 29 of the Penal Code, ‘whoever, in any way, contributes to the crime is subject to the penalties assigned to him, to the extent of his guilt'”, he assesses.

For Chemim, both those who acted directly in the violent acts of 8/1 and those who incited or instigated them can face criminal charges. “Finally, there must be proof that those involved acted with the intention of contributing to the criminal result. If there is proof of this incitement or instigation, they will respond to the extent of their culpability. It is also important to say that it is not necessary to demonstrate the existence of prior or express agreement of will between the parties. It is enough for the agent to be aware that, with his conduct, he contributes to the criminal result”, he adds.

Janaina Paschoal, PhD in Criminal Law from the University of São Paulo (USP), expresses surprise at the revelation that the draft in question was considered and debated, but emphasizes that, without access to the full case file, it is not possible to issue a fair opinion about the case. She argues that Cid’s statement and the subsequent police operations increased the seriousness of the case, but, for now, she discards the link with the acts of January 8th, which, in her opinion, should be classified as damage to public property.

“I continue to say that the people who ended up vandalizing the buildings of the three powers are not perpetrators of the crimes of coup d’état and suppression of the Democratic Rule of Law. In my opinion, they should answer for damage to public property. Regarding the leadership, I would need to have access to the entire file”, he states.

Criminal lawyer João Rezende highlights that the legal controversy over the recent police operation ends up being reinforced by defects in the text of the Penal Code itself, commonly pointed out by experts in the field. “The criminal types of title 12 of the Penal Code [que abarca os artigos 359-L e 359-M], which deal with crimes against the Democratic Rule of Law, have very open, very generic nuclear verbs, and this ends up being a problem. ‘Attack against the Democratic Rule of Law…’ ‘Attack’ is a very open verb and ends up leaving room for arbitrariness, as happens with any generic legal provision”, he comments.

One of the theses used by the Judiciary and the Federal Police in Operation Tempus Veritatis is that there was a criminal organization responsible for the preparatory acts of the alleged coup plan. The insistence on characterizing the group as a “criminal organization” is not accidental. Rezende explains that, in law 12,850 of 2013, which provides penalties for criminal organizations, a group of four or more people organized hierarchically, focused on committing a crime, can be included in this law, even if they are in the preparatory stage of the crime. .

The name “coup draft” is misleading, says jurist

Fabio Tavares Sobreira argues strongly against the STF’s prerogative to prosecute former president Bolsonaro after the end of his term. He goes further: he states that the draft found by the PF is not a coup, but rather an instrument provided for in the Constitution.

“Firstly, former president Jair Messias Bolsonaro is no longer president, therefore, he can no longer be prosecuted before the STF,” he says. “Secondly, perhaps one of the most sensitive and unfair points in my opinion is the argument that there was a ‘draft of the coup’,” he says. For Sobreira, the intention of the draft in question was to rely on article 136 of the Federal Constitution to declare a state of defense.

“Article 136 of the Federal Constitution authorizes the President of the Republic, whether right-wing or left-wing, to decree a state of defense if he understands that public order or social peace are being threatened by serious and imminent institutional instability”, he explains.

If the state of defense were decreed, continues Sobreira, the Executive would not be overriding the other Powers in an arbitrary way, as the National Congress should be communicated to decide whether the presidential decree would be maintained or not.

“If the decision of the National Congress were to overturn the presidential decree, the effects of the state of defense would immediately cease, without prejudice to the investigation of crimes of responsibility committed by the President of the Republic”, he adds.

“In summary, a draft or a simple piece of paper that could have been materialized in a presidential decree, which would be monitored and ratified or not by the National Congress, cannot be sufficient to violate all the individual rights of a former president, ministers and supporters, when the Constitution itself leaves it up to the Executive Branch to interpret what would be an imminent institutional instability, which would be controlled by the Legislative Branch”, summarizes the jurist.