Dino’s project to toughen laws threatens the opposition, say analysts

The bills presented last week by the Minister of Justice, Flávio Dino, to curb attempts to “destruction of the Democratic State of Law” tend to threaten the current government’s political opposition and reproduce, on a large scale, the excesses that have been committed against the right, in recent years, by the Federal Supreme Court. Longer sentences, open definitions of new crimes and permission for blocking assets and summarily losing mandates are the biggest concerns among criminalists consulted by the People’s Gazette.

Gested in the first months of the year, after the depredation of the seats of Powers on January 8, the proposals were announced a week after the clash between Minister Alexandre de Moraes and a group of Brazilians at the airport in Rome. In Moraes’ version, a family would have cursed him and attacked his son; the family already stated that there was excess of the minister’s son and that the confusion was due to access to the VIP room of the place; for Dino, there was an attempt to prevent or restrict the Judiciary.

Since 2021, this conduct, if configured, characterizes the crime of violent abolition of the Democratic State of Law, with a penalty of 4 to 8 years in prison. The attempt to depose, through violence or serious threat, the legitimately constituted government, as pointed out on January 8, constitutes the crime of coup d’état, punishable by 4 to 12 years in prison. These and other crimes were included in the Penal Code to replace the old National Security Law.

Dino’s proposal intends to include in the law the crime of inciting and financing these crimes, with penalties that can reach 4 and 12 years, respectively. He also proposed to create a new specific type of crime, that of “trying to prevent the free exercise of functions” of high authorities, “by means of violence or serious threat”. It would be valid for President of the Republic, Vice President, Government Ministers, Presidents of the Senate and Chamber, Ministers of the STF and Attorney General of the Republic. The penalty would be 4 to 8 years in prison.

If the convicted person is a politician, he loses his mandate and is prevented from holding public office for 8 years after the end of the sentence. If you are an ordinary person, you are prevented from being hired by the Government, or receiving any benefit, for up to 5 years after the final sentence. If you are a partner in a company, you may be suspended from the partnership.

In the second project, Dino proposed that, before sentencing, if there is “sufficient evidence” of authorship or financing of crimes against the Democratic State, the judge be authorized, on his own initiative or at the request of the Public Ministry or the police, to block assets and bank accounts of the investigated person, the assets of his company and even “intermediate persons”.

Experts consulted by the report see several dangers.

André Marsiglia, a lawyer who defends freedom of expression, considers that the package hits government critics and the opposition in full. “This project delegates to the Judiciary an absurd power, to make parliamentarians hostage to the possibility of, at any time and at any time, losing their mandate, not only by the TSE, but by the Supreme Court itself, because for federal parliamentarians there is forum prerogative. The idea is to embarrass the opposition,” he says.

He notes that the proposal says that, after conviction, this effect will be “automatic”. Does this mean that the judge can grant this outright? That you don’t need to wait for the final decision? There is not even clarity here of what this means in practice.”

Another important impact, according to him, is on free enterprise, in the devices that allow the blocking of a company’s assets or dismissing a partner investigated or convicted of anti-democratic acts.

“Not only will the person who commits these crimes with serious violence be punished in this severe way, but the people who incite by any means – namely the press and the internet – these crimes. So criticism can be read as incitement and people can lose their jobs, they can lose their companies, and they will be hostages, therefore, of the impossibility of criticizing the government or public authorities. This is absolutely unconstitutional.”

For the doctor and professor of criminal law Janaina Paschoal, the possibility of confiscating people’s assets, even before a conviction, is the most serious point of the package. “There is no requirement of correlation with the crime or proportionality of the measure. They will reach the assets of companies and family members. Any behavior, the state takes away everything that a person has. They’ll start taking away critics’ assets, treating criticism as attacks. Imagine this happening in the most diverse counties, against the most diverse critics”, she says.

The open and comprehensive definitions of the proposal are a special concern, mainly due to the precedents opened by the STF in recent years in its application. Retired delegate, master and professor of criminal law, Eduardo Cabette recognizes that restrictions on freedom of expression are legitimate when the law is used to slander, defame and insult people, authorities or not.

“The problem with these legislations is in the wording of these criminal types, which are very open. They have many expressions, many expressions that are not well defined, such as ‘anti-democratic acts’, ‘anti-democratic movements’, ‘any attack’. These things mean that, for example, a mere discussion about an airport fits into legislation that concerns attacks against the Democratic State, against the stability of democracy, against the stability of the Brazilian State itself. This is not the case,” he says.

“If I or a politician say that if a STF minister does not act correctly, does not comply with the law, we are going to file an impeachment request against him, would that be a ‘threat’?”, he exemplifies. He notes a contradiction on the left, which has always criticized the old National Security Law, but now tries to repeat it in legislation “a thousand times more authoritarian”, “making a rhetorical use of the word democracy as an excuse, a pretext for all kinds of abuse of rules, of the principles of criminal law, of criminal procedure”.

The eventual approval of the proposal, according to him, could create a ripple effect throughout the Judiciary. “It is very important that the Judiciary itself, the Public Prosecutor’s Office and the police are aware that they must apply these laws with care. grain
salis, very carefully, only in very serious cases. But this is difficult because you have a hierarchical contamination that comes from the top of the STF, STJ and goes down, trickles down to the base of the pyramid of authorities, picking up prosecutors, delegates, first-degree judges. So these very broad interpretations end up being accepted and repeated by all authorities. There needs to be an awareness that this has to stop,” he warns.

For him, a more reasonable proposal would be to better define the crimes and, moreover, remove them from the Penal Code, leaving them in a separate law, to make it clear that it would be applied only in special cases. Measures such as blocking of assets and search and seizure, moreover, are already provided for in the current legislation, but are, as a rule, applied when there is sufficient evidence of authorship and materiality of a crime, in addition to just cause.

Finally, Cabette also sees an excess in the proposed larger feathers. Increased penalties, reprimands, do not solve the problems. If people want this certain climate of revanchism, of conflict, to improve, what is the best way? It is not changing the law, it is taking the laws that we have and acting always, in all cases, within the law, complying with the Constitution, the Civil Code, the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, complying equally for all. Recognize the rights of all people, no matter what political spectrum, be it right, left, center. A false solution, which comes through repression, will not work. It will only increase the pressure, the conflict. And it will generate a series of abuses, a series of injustices, ”he says.