Is there any opportunity for Moraes to order Bolsonaro’s preventive arrest?

Decreeing the preventive detention of former president Jair Bolsonaro for a visit to the Hungarian Embassy would be an excess, according to jurists interviewed by the People’s Gazette. Evidence that there was a request for political asylum in the European country would be necessary for preventive detention to be ordered. The possibility of applying the measure was defended by government supporters after the release of a video showing that Bolsonaro spent two days at the Hungarian Embassy. Federal Supreme Court (STF) minister Alexandre de Moraes, rapporteur of the investigation against Bolsonaro, asked the former president’s defense for explanations within 48 hours.

Defense lawyers confirmed the stay at the embassy, ​​but stated that it was only “to maintain contact with authorities from the friendly country”. Bolsonaro is an ally of Hungarian Prime Minister Viktor Orbán. The Federal Police, on the other hand, confirmed that they must open an investigation to investigate the visit. Furthermore, the Ministry of Foreign Affairs summoned Miklós Halmai, ambassador of Hungary, to provide clarifications. Halmai appears in the images accompanying the former president.

“This hypothesis of preventive detention solely due to his stay at the embassy would be very fragile. It would be a huge effort of interpretation to judge this as a suspected escape. I consider it an exaggeration”, said Adriano Bretas, professor of Criminal Procedural Law in the postgraduate program at Escola Paranaense de Direito.

To date, there is no evidence that there was an attempt at political asylum.

In this case, preventive detention would, in theory, be a precautionary measure that would serve to ensure that Bolsonaro would not flee abroad, if convicted. In February, Moraes forced the former president to hand over his passport and demanded that he remain in Brazilian territory. The former president’s lawyers even asked the STF to return the document.

Alexandre Queiroz, criminal lawyer and master in Political Science, believes that it is necessary to have overwhelming evidence of an escape attempt to order preventive detention. “If it is not proven that there was at least one attempt at political asylum, in my opinion, there is no possibility of it being understood as non-compliance with the precautionary measure that prevents leaving the country.”

Queiroz explains that, under the Treaty of Vienna, embassies are not considered foreign territories. The same convention considers, on the other hand, that the space is considered inviolable and there would be some restrictions in relation to compliance with Brazilian jurisdiction. “Based on the literal nature of the measure, which is to prohibit him from leaving the country, there was no non-compliance, as he effectively did not leave Brazil”, he adds.

Jurists disagree on whether the STF should investigate the visit

“I think that this visit would not necessarily need to involve an explanation. The former president does not have any precautionary measure preventing him from making this type of visit. Whether institutional or private, therefore, there is no need to justify this”, points out Bretas.

Queiroz believes that Moraes acted correctly in gathering information from Bolsonaro’s lawyers. “I am, at times, critical of some of Minister Alexandre de Moraes’ decisions, but in this specific case, before taking any drastic measures, the minister tried to listen to the defense”, he ponders.

“It cannot be assumed that Bolsonaro tried to avoid the application of Brazilian criminal legislation, but it is necessary to investigate. Then, the defense will present its version. The opening of an investigative procedure has also been determined. In my view, it would be up to Moraes to also formally listen to the embassy”, counters Queiroz.

Before decreeing arrest, Moraes could prevent Bolsonaro from visiting embassies

“If any precautionary measure is necessary, arrest is the last option. The most drastic of them. If it were necessary to protect oneself from any precautionary need in the process, there are less serious measures than imprisonment”, highlights Bretas.

“Moraes could add another precautionary measure to prevent Bolsonaro from visiting embassies”, highlights Queiroz. According to the lawyer, the Code of Criminal Procedure allows the prohibition of access or attendance at certain places as an option for a precautionary measure (art. 319, item II).

“The application of any other measure would already be an extreme, since at no point did Bolsonaro dodge the calls for justice. Quite the contrary, he has a history of attendance”, reinforces Bretas.