Lawyers of those arrested on January 8 denounce rights violations

Summary of this report:

• Six months after the depredations in Brasília, the elderly, people with comorbidities and women with minor children are still in prison without individualization of conduct. Among the 253 people who are still detained, there are several who meet the requirements for provisional release.
• In April, lawyers and relatives of prisoners created an entity to denounce illegalities in the processes. In a report by the organization, 26 violations of the rights of prisoners were identified.
• For the detainees’ lawyers, the STF does not have the competence to try the accused, who do not have a privileged jurisdiction, but the processes remain in the Court thanks to a maneuver by the rapporteur, Minister Alexandre de Moraes.
• Notified at least five times by the association, the OAB has failed to take a position on the alleged violations. In the report, the highest defense entity for lawyers did not point out any measures taken to prevent abuse.

The necessary punishment for the authors of the episodes of vandalism to the buildings of the Three Powers on January 8 has been mixed with numerous illegal measures under the command of the Minister of the Federal Supreme Court (STF) Alexandre de Moraes, rapporteur of the seven investigations that are being processed in the Court to investigate the conduct of those involved in the depredations.

This is what lawyers who are part of the Association of Relatives and Victims of January 8 (Asfav) maintain, an entity created in April to demand respect for due process of law in investigations. Six months after January 8th, 253 people are still in custody in Brasilia without individualization of conduct, that is, all were denounced for the same crimes and remain in prison without even appearing as defendants. Among the prisoners, several are elderly, people with comorbidities and mothers of underage children, and most have no criminal record.

So far, more than 2,000 people have been arrested and accused of involvement in the acts. Over the months, the majority began to respond to cases in freedom using an electronic anklet, weekly presentation to the Court, home collection at night and on weekends and other precautionary measures.

“The accusations of the PGR [Procuradoria-Geral da República] are generic, the same for everyone. We resorted to a plagiarism identification system used in educational institutions, which presented a 98% comparison between complaints. They are absolutely the same, they just change people’s names”, says lawyer Gabriela Ritter, founder and president of Asfav. “The decisions [do ministro Moraes] that keep people locked up are also the same. There is no individualization of conduct, nor evaluation of comorbidities, appreciation of anything. It’s like a batch process”, he asks.

Since its founding, the association has focused its efforts on denouncing the case to the press, jurists and the Brazilian Bar Association (OAB). Recently, at a national congress on criminal law held in Brasilia, representatives of the organization delivered a report to jurists pointing out the alleged violations in the conduct of proceedings. At an event held by the National Council of Justice (CNJ) in June, the president of the STF, Rosa Weber, also received a copy of the report from Asfav members. “But the minister has already individualized the conduct”, said the minister, mistakenly, to then promise that she would read the entire document.

This Wednesday (5), the president of the association would participate in a public hearing in the Chamber of Deputies on the theme “Illegal arrests on January 8 and disrespect for the prerogative of lawyers”. The hearing, however, was cancelled, but should take place later this month.

Report points to 26 violations of prisoners’ rights

In the report delivered to jurists, Asfav listed 26 violations of the rights of detainees. One of the lawyers’ main questions is that the cases should be processed in the Federal Court and not in the STF, since prisoners do not have privileged jurisdiction. “The STF is the last resort, so resources are scarce. People are not being entitled to the double degree of jurisdiction [princípio
constitucional que garante a todos os cidadãos a reanálise de seu processo em
uma instância superior]”, says Gabriel Ritter.

Another point mentioned is that many prisoners continue to be detained even though they have the right to provisional release, since they are first offenders, have a fixed address, a legal profession and have no evidence against them in the process.

Defenders also cite violation of the accusatory system, with Minister Alexandre de Moraes acting “as a true accuser” and keeping people in prison even with the opinion of the PGR in favor of release.

The lawyers also mention the general absence of responses to the lawyers’ petitions, in particular requests for provisional release. According to Asfav, on occasions when there is a return, lawyers receive identical documents even for different demands, with only the change of names and personal data of prisoners.

“Often, there is not even a response to simple requests such as changing the area around which the residence is located, to expand the monitoring perimeter. We are convinced that there is no evaluation of the petitions. Everything is in automatic mode, which we call ‘complying with the table’ to give public opinion an idea of ​​legality”, declares lawyer Claudio Caivano, responsible for the defense of more than a dozen people suspected of participating in the acts.

List of prisoners includes a woman who arrived in Brasília after the end of the depredations and elderly people with comorbidities

On January 8, around 300 people were arrested in Praça dos Três Poderes. They all appear in Inquérito 4922, which investigates “material perpetrators of crimes”. Even if there is no evidence to prove the conduct of each of the detainees, all were generically denounced for five crimes – including armed criminal association and coup d’état – which, together, can result in sentences of up to 29 years.

The following day, around 2,000 people were arrested at the Army HQ in Brasília, where supporters of former President Jair Bolsonaro were camped. Although several hours had passed since the end of the acts of vandalism, all were arrested in flagrante delicto. According to reports from prisoners, the detention reached even a homeless person who went to the camp every day to eat.

Those arrested on January 9 are part of Inquérito 4921, which investigates “masterminds and people who instigated the acts”. All were equally accused of incitement to crime and criminal association, which, added up, can reach three and a half years in prison.

Some of the cases stand out. One of them is that of Iraci Nagoshi, a retired teacher, aged 70, who was arrested on the 8th and is still being held today accused of five crimes in the “package”. She was in Praça dos Três Poderes with a 72-year-old friend who was also arrested. According to the defense version, the two did not even have the physical conditions to participate in the acts of depredation.

In addition to his advanced age, Iraci has a series of comorbidities and even spent more than months without his medication for diabetes, according to the defense. She also lost her glasses during prison and spent several weeks without the accessory. In prison, she lost weight, had bouts of anxiety and signs of depression; one of her children has advanced cancer.

The friend who accompanied her was released and responds freely using an electronic ankle bracelet. The elderly woman, who also suffers from comorbidities, needs to undergo previous tests for a surgery scheduled for September. For one of the exams, it is essential to remove the electronic equipment. The defense is now trying to temporarily remove the anklet.

“People who went there to break, vandalize, set fire to, have to pay. But Ms. Iraci is an example of several prisoners who are answering for the same thing without the slightest description of what each one would have done, which overflows with illegality”, says the lawyer Jaysson França, responsible for the defense of the two elderly women.

“I have already filed habeas corpus, an appeal, several reiterations of requests for provisional release mentioning all this context and nothing. The minister simply ignores it; he doesn’t say yes or no,” he continues.

Another curious case is that of a 41-year-old businesswoman (the name will be kept confidential at the request of the accused), mother of two children under 12 years of age. She proved in the records that her bus, which came from Rio Grande do Sul, arrived in Brasília only at 7:30 pm on January 8, that is, when the episodes of violence had already ended. Even so, she was arrested for four months and today responds in freedom, using an electronic anklet, for the crimes of incitement to crime and criminal association.

A third case is that of the father of the founder of Asfav, whose name will also be kept confidential. Elderly, with no criminal record and with diabetes and hypertension, he remains in prison to this day. Since his arrest on January 8, he has lost 20 kilos. He is currently experiencing a sensitive health condition that prevented him from urinating for days. The information given to family members is that he is in an emergency queue for an appointment with a urologist.

“In my father’s cell there is a 72-year-old man and another man with cancer. There are cases in which the penitentiary system has asked families to provide medicines that the SUS has not been able to provide. They cannot afford to keep all these people in prison”, questions the lawyer.

Notified several times, OAB is silent in the face of complaints

For lawyers of prisoners suspected of participating in the depredations, the OAB has been silent in the face of complaints of alleged irregularities in the processes and offenses against the prerogatives of lawyers. A People’s Gazette contacted the Federal Council of the OAB specifically detailing five notifications delivered to the entity since February 1 with the description of the alleged irregularities and requesting a position as to what had been done by the Order since then.

“The Federal Council of the OAB has acted to guarantee the full exercise of defense by the lawyer, whenever demanded or warned about violations of professional prerogatives”, replied the entity in a note, without specifying what were the measures taken in the case in question.

The report sent a new request with a request for details of the actions taken so far to investigate possible illegalities. The entity no longer returned to the contacts of the report.

It is worth mentioning that the first purpose of the OAB, according to Law 8.906/1994, known as the “Statute of the OAB”, is precisely “to defend the Constitution, the legal order of the democratic State of law, human rights, social justice, and to fight for for the good application of laws, for the speedy administration of justice and for the improvement of legal culture and institutions”.