The new evidence of acts of a coup nature by the then president Jair Bolsonaro (PL) and his surroundings revealed with the Federal Police’s Operation Tempus Veritatis last week generate controversy about what the criminal framework of the conduct described there would be.
According to the decision of Minister Alexandre de Moraes, of the STF (Supreme Federal Court), the facts reported have materiality of the crimes of coup d’état and abolition of the democratic rule of law.
Experts consulted by Sheet diverged from each other. The controversy revolves around the question of which investigated conducts stop being preparatory acts for a crime –not punishable– and become an attempt to commit it.
Among the arguments for the new operation, the PF presents messages that show that Bolsonaro discussed with general officers of the Armed Forces the issuance of a coup decree. And even though he even requested modifications to the coup draft presented by an assistant, the order remained for the arrest of Moraes, who was being monitored, and for new elections to be held.
Furthermore, in a ministerial meeting three months before the election, Bolsonaro ordered government members to publish statements about electoral fraud and urged those present to devise a strategy to guarantee the maintenance of the government.
Messages also show that Mauro Cid, Bolsonaro’s former aide-de-camp, gave guidance in his conversations about where coup protesters should carry out their acts.
Among those interviewed, there are those who consider that such episodes in themselves would constitute a crime, in the attempted form, even if the attacks of January 8 had not occurred. There are also those who see them as mere preparatory acts for a crime that ended up not being carried out.
The crime of coup d’état is when someone tries to depose the legitimately constituted government, through violence or serious threats.
The crime of abolition of the democratic rule of law occurs when someone acts with violence or serious threat to try to prevent or restrict the exercise of constitutional powers, such as, for example, the free functioning of the Supreme Court.
The logic in this case is that, if the attempt is successful, it would not even be possible to talk about punishment, because any new regime in power would not punish itself.
In the opinion of Davi Tangerino, criminal lawyer and law professor at Uerj (State University of Rio de Janeiro), the meetings already constitute a crime, highlighting that the draft coup decree would characterize a serious threat.
“The crime is trying to abolish it, that is, we transform the attempt into a complete crime. This makes it very difficult for us to clean up what is a preparatory act in these cases,” he says.
He considers it difficult to say that there was no execution of Bolsonaro’s orders, that everything would have been restricted to preparatory acts, pointing out, for example, the formation of coup camps.
“I think the mistake here is that we try to link the idea of a coup only to January 8th,” he says. “It proves the entire coup intention, but it was not the only way to carry out a coup.”
Luís Greco, professor of criminal law at the Humboldt University of Berlin, when evaluating the elements brought in this new decision, such as the meeting in which Bolsonaro would have discussed the draft decree of the coup with the military, says that the crimes of a coup would not be configured. State and the abolition of the democratic rule of law.
This is because, for him, the beginning of the execution of these types of crimes is missing, given that both require violence or serious threats to their configuration — an understanding that he also applies to the case of Moraes’ monitoring.
“The meeting is not the beginning of violence or a serious threat”, says Greco. “A meeting to discuss an action strategy, this is a preparatory act.”
He understands that, in principle, meetings alone will never be an attempt at these crimes, but that, together with other elements, this configuration is possible. He assesses, however, that there is a complexity in demonstrating the causality between these acts and the attacks in Brasília.
For lawyer Tatiana Stoco, who is a professor of law and criminal procedure at Insper, based on the set of elements listed in the decision, it is possible to identify a criminal organization set up with different fronts with a very rigid common plan.
“I see the clear configuration of the crime of trying to abolish the democratic rule of law. It is not just a preparatory act, we are already at the beginning of this execution”, she says.
She does not understand the different acts as something isolated, but as a set of a larger work. “It didn’t start there [no 8 de janeiro] This attempt began before, with all these objectively traceable measures so that they could reach their objective.”
Criminal lawyer Frederico Horta, professor of criminal law at the Federal University of Minas Gerais, considers that, alone, the meetings would only be preparatory acts and, therefore, not punishable. “Without January 8th, the coup cannot begin,” he says.
However, for him, it is not possible to analyze the new evidence separately from January 8th.
Horta understands that the new evidence indicates that most of the PF’s targets are at least instigators of the attacks in the federal capital and that, depending on the evidence against each of them, they could be classified as participants in the coup attempt.
“The draft of the coup is proof of the intention. It links Bolsonaro to what happened, showing that he acted as a malicious instigator, that is, wanting that mobilization to happen”, he states.