Lawyers for 8/1 defendants criticize “mob crime” and virtual plenary

Two decisions by the Federal Supreme Court (STF) could seal the fate of the next 231 defendants of the 8th of January in the coming days: the trial of the accused in a virtual plenary session and the acceptance of the thesis of “crowd crime” as an argument to judge those involved in a single form, excluding the individualization of cases. For lawyers of the defendants heard by the People’s Gazettethe decisions prevent the broad defense guaranteed by the Federal Constitution.

On Wednesday (20), Minister Alexandre de Moraes, of the STF, denied a request from the Brazilian Bar Association (OAB) that challenged the decision of the president of the STF, Minister Rosa Weber, to judge the defendants virtually. The entity’s argument is that a compulsory trial, without the option of taking place in a physical plenary session, violates “due legal process, the adversarial process and the right to defense”. On the other hand, the physical plenary session provides lawyers with the opportunity to carry out oral arguments in real time in a clear and effective manner.

In the trial of Aécio Lúcio Costa Pereira, first convicted of January 8, the Supreme Court accepted the thesis of the Attorney General’s Office (PGR) that the acts of vandalism at the headquarters of the Three Powers resulted from a “multitudinous crime”, that is, committed by a crowd, in which the people involved influenced each other with the common objective of overthrowing the government of President Luiz Inácio Lula da Silva (PT) through violence or serious threat and preventing or restricting the exercise of powers Judiciary and Legislature.

Defenses point out illegalities in the process

Lawyer Morgana Kjelin, who defends 46 defendants, states that the defense did not have access to evidence of the “mob crime” presented by the PGR, which would make the defense of her clients unfeasible.

“The majority of ministers recognized that the crimes occurred in the form of mob crime, claiming that they have sufficient evidence, that they have documents, records, photos, videos and statements from prisoners on social networks that prove these violent actions. It turns out that the defense does not have access to this evidence. So how are they going to incriminate someone without the right to defense? There is no way to talk about this crime, because mob crime is when one influences the other and everyone was aware. But it is well known that, in fact, this demonstration, the intention of these protesters was to demonstrate in a peaceful and orderly manner”, says the lawyer.

She also criticizes the determination of a virtual trial, as she considers that it reduces the lawyer’s role in the process. “The oral trial session is of great importance to the accused’s right to full defense. When it occurs virtually, it does not detract from the virtual form, but when it occurs virtually, without the consent of the parties, it places the lawyer at a lower level. Including , article 6 of the Law Statute specifies that there is no hierarchy or subordination between lawyers, magistrates and members of the Public Ministry”.

Responsible for defending 24 defendants, lawyer Ezequiel Silveira argues that the use of “mob crime” in the case would be unconstitutional. For the jurist, the fact that the accused were in Praça dos Três Poderes does not equate them to those who invaded public buildings.

“The figure of the “multitudinous crime” is unconstitutional, as it violates the principle of presumption of innocence (art. 5, item LVII, CF), and the individualization of the penalty (art. 5, item XLV, CF). This is objective criminal liability, which is prohibited in the Brazilian legal system, which adopts the principle of subjective criminal liability. If crimes were committed in Praça dos Três Poderes, on January 8th, the simple fact that someone was nearby cannot join, by osmosis, the criminal desire of others. Such a situation is legally impossible, as there is no “geographical” adherence to criminal practice”, said the lawyer.

And he added: “Several people went to Praça dos Três Poderes to demonstrate peacefully. If there were people who carried out depredations, they should be identified and punished in accordance with the law. However, it is not acceptable for some to pay for the crimes of others. If it is not possible to individualize actions, the principle of in doubt pro reo [“na dúvida, em favor do réu”], and acquit the accused. And not condemn them to extremely high sentences for the crime of “live”, as happened last week.

Lawyer Claudio Caviano, who represents 18 defendants, stated that the publicity of the process, guaranteed by oral arguments in plenary, is a right established by Brazil in international treaties.

“The law seems to have been definitively buried, because this [o julgamento virtual] violates the principle of broad defense and adversarial proceedings. The entire process is public. This is a duty that is stated in our Constitution, in the Code of Criminal Procedure, in the Covenant of Saint Joseph of Costa Rica and in the Universal Declaration of Human Rights. All of this is being suppressed quite arbitrarily and we don’t see that it can be corrected after this breach. The principle of publicity is a fundamental principle of every democracy”, said the jurist.

He highlighted that the virtual trial removes the technical defense on the part of the lawyer, work considered essential in a process. “When the process is placed in the virtual plenary, it suppresses the lawyer’s right to speak for his represented client. Advocating is speaking for someone. They are preventing the lawyer from speaking for his client. This violates the prerogatives of our profession and violates article 133 of the Federal Constitution, which says that lawyers are essential”.

Unlike the defendants defended by Morgana and Silveira, Caviano’s clients have had their complaints suspended for 120 days following Moraes’ decision. Upon receipt of 1,345 complaints, the magistrate determined that part of them be suspended so that the PGR can analyze whether or not to propose Criminal Non-Prosecution Agreements (ANPP).

Editorial of People’s Gazette highlighted the choice that could be given by the PGR to the defendants: “confess to a crime that they are convinced they did not commit in order to escape from prison, or maintain their innocence and face a trial whose outcome is quite predictable, in light of the entire climate witch hunt mounted in relation to January 8th in public opinion, in the Judiciary and in the federal government”. If he accepts the agreement, “the person under investigation would not be tried and would not be at risk of returning to jail, only having to perform community service and pay a fine.”

Jurists question the “mob crime” thesis

Despite being provided for in the Brazilian legal system, the “crowd crime” thesis used by the Supreme Court in the case of the January 8 protesters does not seem to apply in this situation. Lawyers outside the case interviewed by the report state that the occurrence of the crime requires certain conditions to be configured.

According to civil lawyer Emerson Grigollette, the protesters on the 8th were not in a position to carry out a coup d’état. “Admitting that those almost 2 thousand people – including countless children, elderly people and many other unarmed people – would be capable of carrying out a coup d’état, deposing a government or even abolishing the current Brazilian State is admitting that we live in total anarchy, in a complete absence of the State. Obviously, the law does not require the consummation of the coup or the abolition of the current state, but, on the other hand, there is no way to deny the need for the existence of a real and effective potential for conduct to be consummated, which I do not envisage, even under magnifying glass, about the case in question”, said the jurist.

In cases of crowd crimes, broad defense becomes an essential condition for the process. “It is not new that our Courts deal with so-called multitudinous crimes, that is, crowd crimes, so to speak. The jurisprudence is majority in the sense of admitting its occurrence. However, this same majority understanding follows the reasoning that multitudinous crimes are only admissible when full defense and contradictory action are fully exercised, which, as we have seen in recent years, has not been respected”.

Criminal lawyer Adriano Soares da Costa also questioned the real potential for a coup d’état by the defendants and explained that individual conduct must be analyzed in cases of multitudinous crimes. “Did the mob really want to overthrow the government? Did those who participated in it have this awareness? What specific individual conduct would demonstrate awareness of this purpose? Did the accused directly participate in the depredation? Was the accused inside or outside the public buildings that were invaded? To answer these questions, only individual judgments and their individual defenses guarantee due legal process”, said the jurist.

Criminal Law professor Gustavo Dandolini, professor at the Federal University of Rondônia (UFRO), argues that using the “crowd crime” thesis must be done with caution. “Although offenses involving the gathering of people are not uncommon, the specific interpretation given by the STF can be seen as an adaptation of existing laws to deal with this type of offense. The jurisprudence and interpretation of Criminal Law are constantly changing, but this application of the law must be carried out with caution and responsibility, recognizing that it must be applied only subsidiarily, being the last resort to regulate social interactions in a democratic society based on the State of Law”, explains the professor.