Generic denunciation of January 8 contradicts recent understanding of the STF

The accusations by the Attorney General’s Office (PGR) against more than a thousand people who, in one way or another, were present at the Army Headquarters or at Praça dos Três Poderes, on the day of the invasion of the buildings of the Planalto Palace, Congress and Federal Supreme Court, in Brasilia, do not follow the recent understanding of the higher courts regarding the individualization of each person’s conduct.

Since January 8, the agency has already denounced 1,037 people. Most of them, around 800, were charged with the crimes of inciting animosity by the Armed Forces against democratic institutions and criminal association, whose penalties add up to less than 4 years of detention, in case of conviction.

The others, who participated in the invasion of the headquarters of the Powers, were denounced for more serious crimes, such as armed criminal association, violent abolition of the Democratic State of Law, coup d’état, qualified damage against the Union’s patrimony, and deterioration of listed patrimony, whose penalties can exceed 30 years in prison, in the event of being convicted.

It so happens that, at least for these two groups, the hundreds of complaints are practically identical, in which only the name and personal data of the accused person are changed, in order to identify him or her. The denunciations of the first group, called “incitadores”, are 12 pages long and tell that the campers at the HQ contested the fairness of the elections, the release and candidacy of President Luiz Inácio Lula da Silva (PT), and that they began to ask the Army a military intervention, for “the seizure of the Constituted Powers and the installation of a dictatorship”.

Based on reports, the complaint shows photos of the structure set up in Brasília in front of the HQ. Afterwards, it says that the person “joined this association, whose desideratum was the commission of crimes against the Democratic State of Law”.

The PGR, however, does not say what the person actually did: if, for example, he contacted the military to encourage a coup, or if he carried banners or chanted slogans in favor of the intervention. Based on photos, the complaint records that this type of demonstration was part of the camp, and deduces that the person acted in that sense.

Complaints rejected by the STF and STJ

A survey of the People’s Gazette on recent decisions by the Federal Supreme Court (STF) and the Superior Court of Justice (STJ) points out, however, the requirement that, in accusations against people involved in collective crimes, there be “an effort to identify the contribution” of each one for opening a criminal case. Otherwise, the complaint must be rejected.

The expression was used by Minister Gilmar Mendes when extinguishing, in 2016, a criminal case against six partners of a publishing house, accused of tax crimes, for providing false statements to the Revenue to pay less taxes. When denouncing them, the Public Prosecutor’s Office chose to accuse all of them for the fact that they appeared in the social contract as responsible for the management. For Gilmar Mendes, it was not enough. “I consider the description of the conduct of the accused to be insufficient, and the criminal action should be extinguished, without prejudice to a new proposal, resolving the vice”, voted the minister, in which he was followed by three other members of the Second Panel of the STF: Ricardo Lewandowski, Dias Toffoli and Teori Zavascki.

The decision marked a shift in relation to previous decisions, related to corporate crimes, which did not require, at the complaint stage, a very detailed description of the conduct of each of the accused. The jurisprudence allowed this to be done in the course of the criminal action, the next phase, in which the parties present more evidence and deepen the case.

After that, in August 2021, the Second Panel of the STF rejected a complaint against Ciro Nogueira (PP), former Minister of the Civil House in the management of former President Jair Bolsonaro (PL), presented in Lava Jato, due to lack of individualization of conduct. Along with two other PP politicians, deputy Eduardo da Fonte and former deputy Marcio Junqueira, he was accused of embarrassing a criminal investigation involving a criminal organization. The group would have tried to bribe and even threaten to kill José Expedito, a former employee, so that he would desist from denouncing them in corruption schemes.

In his vote, Gilmar Mendes stated that the PGR did not satisfactorily describe the circumstances, manner and means by which Ciro Nogueira and federal deputy Eduardo da Fonte, another accused, would have participated in these acts, failing to indicate elements evidence that would point to their pressure on the former employee. “These attempts to embarrass justice would have occurred in face-to-face meetings between José Expedito and Marcio Junqueira”, he highlighted. “There is no evidence that could suggest that Ciro Nogueira and Eduardo da Fonte met or even communicated with the witness”.

José Expedito stated that he received payments to obstruct investigations against the politicians. But, according to Gilmar Mendes, there was no evidence of delivery or receipt of these amounts in the investigation and complaint. He was followed by Lewandowski and Nunes Marques. The complaint was archived.

A similar understanding had already been signed by the STJ, still in 2017. At the time, the Special Court, formed by the 15 most experienced ministers, unanimously rejected the complaint against the former governor of Amapá and current minister of Social Development, Waldez Góes. He was accused of being part of a group, also made up of civil servants and businessmen, who allegedly defrauded a public bid in the state. He was denounced for criminal association, embezzlement, frustration with the competitive nature of the bid and illegal contract extension.

Rapporteur of the case, Minister Nancy Andrighi considered that the facts narrated by the Public Ministry were not sufficiently delimited to demonstrate, individually, how the governor would have contributed to the frustration of the bidding. “The complaint can be classified as generic, as it undermines the adequate representation of the alleged criminal facts and prevents the understanding of the accusation that is imputed to the accused, causing, consequently, damage to his right to a full defense”, she concluded.

Cases of collective violence also require individualization

The jurisprudence established in the superior courts is also reflected in cases involving violence with groups of people. In 2018, the Public Defender’s Office of Rio de Janeiro contested the arrest of 159 suspects of being part of the largest militia in the state, detained during a party. All were suspected of illegally carrying a weapon and forming a private militia.

“The situation that there would be a state of flagrante delicto is very porous. Even because the weapons were not found with anyone specific. What is missing is the detailed specification of the details and the individualization of the conduct of each one”, said public defender Ricardo André de Souza to the Conjur website at the time.

At the time, the government of then President Michel Temer considered authorizing, during the federal intervention in Rio’s security, the issuance of collective warrants for search and seizure or arrest, without exactly identifying the targets, but entire regions dominated by factions, especially in favelas. . The measure was eventually discarded due to pressure from the legal community, which pointed to a lack of individualization of conduct.

In 2016, Justice released two men caught with a rifle, a pistol and more than 4 kilos of marijuana, in Morro da Carioca, for the same reason. One day after the arrest, during a custody hearing, the judge in the case pointed out that the conduct of each of the accused was not detailed by the Civil Police in the police report. “I verify the regularity of the flagrante delicto, bearing in mind that the circumstances of the arrest are not clear, nor the individualization of the conduct of those caught in the act, assisting the defense with reason.”

In September of the same year, the Court of Justice of São Paulo annulled the conviction of 73 military police officers for the death of 111 inmates in the Carandiru prison, in 1992. of the agents.

What a lawyer for prisoners says on January 8

In order to consider a generic complaint, the Judiciary is based on article 41 of the Code of Criminal Procedure (CPP), according to which the accusation must contain “the exposition of the criminal fact, with all its circumstances, the qualification of the accused or clarifications by which if it can be identified, the classification of the crime and, when necessary, the list of witnesses.”

Defender of several participants in the act of January 8, lawyer Calebe Ribeiro says that, since the beginning of the case, PGR, police and Judiciary have failed in the individual description of the conducts. “It started with the arrest report in flagrante delicto. The right thing, according to article 312 of the CPP, would be for the prisoners to be taken to the police authority, the delegate, who would typify the conduct, according to the fact narrated by the police”, he says.

On the night of January 8, however, it was Minister Alexandre de Moraes who first imputed several crimes to the participants, including terrorism, already contested by the PGR, as it did not cover politically motivated acts.

Caleb also contests the typification given – in general – to who was encamped and who participated in the invasions. “Just because they were sitting in a tent, peacefully, they were denounced. Because they were at the HQ, they were charged with the crime of inciting the Armed Forces’ animosity against the institutions, and association for the commission of a crime against the State. The complaint treats as if all people were united for a coup d’état. It’s wrong. Were there people wanting to violently overthrow Lula? Perhaps, but most were questioning the fairness of the ballots, not satisfied with the transparency of the process. Some believed that there was a wrong interpretation of the Constitution, so that the Armed Forces could intervene to recount the votes”, says the lawyer.

As for the invaders of the buildings of the Three Powers, the defender claims that they should only be denounced for damage to public property. For him, the prosecution should say what each one broke inside the buildings. “Attempt to overthrow the rule of law without weapons? They attacked the buildings, not the authorities. It was a demonstration of revolt, like others that had already occurred, in the days of June 2013, and in the invasion of Congress by the MST, in 2006. In none of these cases, the participants were accused of terrorism or coup d’état”, argues Calebe .

Against this type of criticism and to counter the questions, the PGR has maintained that it does comply with the requirement of individualization. It does this by separating the denounced into groups: those of inciters (camping at the HQ) and those of invaders (who vandalized the buildings).

“Although, due to the peculiarity of the case, the complaints contain similar excerpts – which is natural, since they deal with the same fact (acts of January 8th) -, the petitions narrate the different behaviors verified in the attacks on the headquarters of the Three Powers , so as to allow all those accused to defend themselves adequately and in accordance with the legislation, which will be done in the course of the criminal action, if the complaint is received by the Judiciary”, said the body, in a note published on its official website.

On the last 9th, Minister Alexandre de Moraes, rapporteur of the case, declared that, for him, there is individualization of conduct. “The STF is analyzing it in detail and individually so that, quickly, those who committed the crime are held accountable under the terms of the law. Those who have committed a lighter crime will have a lighter sanction, those who have committed a more serious crime will have a more serious sanction,” he said.

It is still not known, for sure, whether the STF itself will analyze the complaints, how and when. According to the House’s bylaws, this decision – which allows the opening of a criminal action – is taken by the plenary, formed by the 11 ministers. The text of the rule, however, says that it applies to authorities with privileged jurisdiction, which is not the case for campers and invaders. Within the STF, there are suggestions that, once the complaints are closed, everything be sent to the first instance, where ordinary judges would start to handle the processes.