IBCCrim: Use of inquiry by Moraes can help Bolsonaro – 05/26/2023 – Power
The use of the digital militias inquiry, under the report of the Minister of the STF (Federal Supreme Court) Alexandre de Moraes, to investigate the alleged fraud scheme in the vaccination records of former president Jair Bolsonaro (PL) can, if proven the lack of connection, jeopardize the entire investigation.
The analysis is carried out by the president of IBCCrim (Brazilian Institute of Criminal Sciences), Renato Vieira. He claims that using the inquiry as an umbrella causes the investigation to lose focus and generate distrust.
In the case of the probe promoted from Mauro Cid’s breach of secrecy, Vieira sees the risk of annulment of the evidence, if the lack of proportionality in access is proven.
For the criminalist, it is necessary to change the Constitution so that the Supreme Court ceases to act in matters of a criminal nature.
Vieira also criticizes bills that could increase incarceration in the country and racism in the justice system. For the lawyer, by choosing another white man for the Supreme, President Lula (PT) is much less committed to the issue than would be expected.
Bolsonaro is investigated on suspicion of altering vaccination records in the digital militia inquiry. What is the risk of not dismembering this investigation? It seems to me that the matter under examination there is not about digital militias, so I see the maintenance of this case before the Supreme Court as an apparent problem.
If there is a declaration sooner or later that the authority could not proceed with it, we have a vice of absolute incompetence which nullifies all prosecution. No one can be prosecuted or investigated except by a specific authority naturally invested with that function.
When a procedure is used, be it fake news or digital militias, as a possible umbrella, under which any and all investigations fit, a bad example is that the lowest-ranking authorities take it for granted. These are examples of investigations that it is not known how and when they will be completed. An investigation that becomes tentacular begins to cover such a number of people that it ends up no longer having a specific focus and, therefore, confidence in the system itself ends up being diminished.
Folha revealed a probe promoted from the breach of secrecy against Bolsonaro’s former assistant Mauro Cid. What is the risk to the investigation if disproportionate access to data is proven? There we have a debate for annulment of the test and, consequently, of the evidence derived from it. It’s called the fruit of the poisoned tree theory. Once the annulment of a certain test is discussed, what follows directly will also be annulled.
Bolsonaro said he was not aware of the alleged fraud in his vaccination record. How do you assess the evidence against the former president? There is legal work ahead for the lawyers to defend the former president, but it seems to me very little credible that he knew nothing, because he didn’t skimp on mentioning Mauro Cid as an agent of the most unrestricted trust.
In the understanding of an institute that values human rights, much more serious is the shameful situation that, to defend himself against a criminal problem, he verbalizes once again that he has not been vaccinated, that he is against the vaccine.
What are the chances of Bolsonaro being arrested? We have to be committed to human rights and the construction of a Brazil with a less selective, bloody and racist Criminal Justice.
The chances of the former president or of any citizen being arrested must be seen in the same measure: the presence of situations that indicate caution, that is, the danger to the smooth running of a criminal case. If he is disappearing with documents, coercing witnesses and giving concrete evidence that he will disappear and evade law enforcement. So yes, we have a situation of precautionary measures in the criminal process and the last of them –and this has to be valid for everyone, it is not for Zezinho and it is not for Jair– is preventive detention.
Criminalists have disagreed about whether Minister Moraes adopts methods common to those used by Lava Jato. What’s your rating? We should not make a synonym comparison between Lava Jato and what is happening now. What happened in Lava Jato was an unbridled lack of control, with a very violent and specific media campaign that even generated unconstitutional bills. We had coercive conductions, temporary arrests, immoral incentives to plea bargains and competition between the prosecution and the judiciary.
What we are seeing today is not comparable because it is an attempt to put a stop to the former president’s anti-civilization crusade. We see a position led by a minister of the Supreme, but who comes to quell another evil that emerged from 2018, and which is supported by several fronts of investigations of various and very serious crimes. It is an attempt to place Brazilian society on another level, but even so, the issue of control deserves to be taken into account.
Is Moraes’ conduct similar to Sergio Moro’s? I do not think. We are experiencing a problem of maintaining the system of democracy that we did not have before. We can discuss mistakes, excesses, lack of control, but the context is radically different.
I hope that we conclude these investigations so that the Supreme Court returns to work with the guardianship of the Federal Constitution. We have an opportunity to be seized, which is to discuss a resizing of the STF’s attributions. The Federal Supreme Court should not be a court that originates criminal actions, this hinders the constitutional discussions that the Supreme Court should have.
It is not the role of the Supreme to supervise police investigations and it is not the role of the STF to judge criminal cases. The role, as Supreme Court, should be the narrowest constitutional court or appellate court role it may be, but that depends on a constitutional rearrangement.
Is it feasible to have this discussion with a conservative Congress like today? This risk that we will always have. What we have is a document, which is the Constitution. The issue arose with the trial of the monthly allowance and it was a different government, another Congress. The problem of conformation of the Supreme Court as an authentic constitutional court is lasting.
The STF bothered Congress by ruling the judgment of actions on the regulation of big techs, postponed to June. What worries you about this debate? We would not be in this tension if the economic activity of big techs were already more regulated.
I agree with Minister Alexandre de Moraes’ starting point of view that there is no control over what happens there. This is so true that companies with such immense economic power are disinforming society, putting pressure on public debate in an embarrassing way.
I see the moment as important for us to control these activities. This does not mean censorship, ideological bias. This means an adaptation to the constitutional dictate. Within the platforms, the content you want is disseminated, because there is an interest in economic gain and that alone justifies control within a democracy.
IBCCrim criticized Senator Sergio Moro’s bill to extend the sentence of those who plan attacks against authorities. Why? First, there is already a law that protects authorities, witnesses, victims.
Second, because very high penalties are established there, ranging up to 12 years at the most for a situation of instigation even if the act does not happen.
Third, because technically the consummated crime and the attempted crime are punished with the same penalty. There are inconsistencies in the general theory of criminal law that cause some surprise coming from a doctor from a Brazilian public university.
The institute also expressed concern about the bill that amends the anti-terrorism law, approved by the Constitution and Justice Committee in the Senate. IBCCrim is together with other entities in this debate, such as IDDD, Conectas and Artigo 19. We already have an anti-terrorism law since 2016. It is not because of this law’s high deficiency that we do not see punishments. It is because there is no terrorism in Brazil. I see this rediscussion as a risk to freedom of expression. Particularly, we are talking about the MST (Landless Rural Workers Movement). We have to be very careful so that in a democratic State of Law people have the right to demonstrate peacefully even if it causes discomfort.
We have always advocated that criminal justice be seen as a minimum. This provides an unbridled expansion of the arms of criminal justice. The Brazilian penitentiary system is hell and it will explode. This is the crusade we have to solve. IBCCrim is aware of how racist the justice system is. Racist here at the Court of Justice, because it does not reflect Brazilian society.
When President Lula signals the nomination of another white man to the STF, does he turn his back on this discussion? He proves to be much less committed than would be expected. Much less.
Renato Vieira, 47
President of the Brazilian Institute of Criminal Sciences and founding partner of the Kehdi Vieira office. Doctor and Master in Criminal Procedural Law from USP, graduated in Law and Master in Constitutional Law from PUC-SP.