Legal experts point out weaknesses in the January 8th CPMI report

The final report of the Joint Parliamentary Commission of Inquiry (CPMI) on January 8 called for the indictment of former president Jair Bolsonaro (PL) as the intellectual author of the coup attempt and several military personnel, such as former vice-presidential candidate Walter Souza Braga Netto (PL). According to the opinion prepared by senator Eliziane Gama (PSD-MA) approved by the collegiate, “the facts show that Bolsonaro was the author, whether intellectual or moral, of the attacks perpetrated against institutions”, culminating in the invasion and vandalism of the headquarters of the Three Powers .

Although an investigation into Bolsonaro and 60 other people was requested, the report does not automatically imply the indictment of any of them. Instead, the report functions as a recommendation to the Federal Public Ministry (MPF) and the Federal Attorney General’s Office (AGU).

Jurists consulted by People’s Gazette point out that the opinion does not guarantee the opening of new investigations, either due to the lack of evidence and consistency of the allegations or because it repeats the actions already taken by the Federal Supreme Court (STF), MPF and Federal Police.

Interestingly, the rapporteur bases her indictment requests on the theory of “control of the facts”, the same one used to convict defendants in the Mensalão scandal. It considers complicity even in the absence of proven intention to commit the crime. In a note released on Tuesday (17), Bolsonaro’s defense expressed outrage at the request for his indictment in the CPMI’s final report of January 8. “The proposed indictment – ​​in addition to the absence of elements that connect the former president with the acts being investigated – appears to be partial, biased and completely paved with political rather than legal bias”, he highlighted.

Weak CPMI report makes it difficult to open cases by the MPF

André Marsiglia, a specialist in freedom of expression and digital law, believes that, even though it is “quite generic and imprecise”, the CPMI report could impact the many processes and investigations that Bolsonaro is currently responding to. “Until now, Bolsonaro’s possible intellectual participation in the events of January 8 was being investigated. The conclusion of the commission’s opinion points, however, to the direct responsibility of the former president, through the instrumentalization of authorities and State bodies,” he said. The lawyer understands that the document is “legally fragile”, but, “because it is a political case”, it will be taken into consideration by the Attorney General’s Office (PGR) for new indictments.

During the debate that preceded the approval of the report by the majority of CPMI members, senator Damares Alves (Republicanos-DF) harshly criticized the work of rapporteur Eliziane Gama, pointing out inconsistencies and serious errors of a legal nature. “This report will not prosper. As soon as it is taken to the Federal Public Ministry (MPF), it is rejected due to obvious flaws, with imprecise and incorrect data and a lack of solid evidence to formulate suspicions,” she said.

In the same vein as foreseeing the impossibility of the report resulting in new indictments, deputy Delegado Ramagem (PL-RJ), also informed that he will represent against the rapporteur in the MPF for partiality and procedural defects, in addition to condemning her “useless opinion” . Ramagem was the coordinator of the group of 16 opposition deputies and senators who presented a separate report, in opposition to the official commission, later added to another independent one, by senator Izalci Lucas (PSDB-DF).

CPMI tries to associate vandalism with a criminal organization

For constitutional lawyer Vera Chemim, the indictments proposed by CPMI will only result in the opening of a new case against Bolsonaro if “the object of a supposed and future action is different from those already under investigation”. In any case, for this to occur there must be “strong evidence of authorship and materiality of the commission of an illegal act, whether of a criminal, civil or electoral nature”. At this point, the jurist recognizes that rapporteur Eliziane Gama may have used the legal concept of “domain of fact” as a valid strategy to circumvent the need for such “materiality”. “This is a very controversial theory. Despite this type of approach, it is necessary to gather the minimum elements of evidence to be able to present a complaint to the Public Prosecutor’s Office”, she highlighted.

The rapporteur uses this theory to justify the indictment of Bolsonaro and others, although they probably did not obtain concrete evidence to do so, based on the argument that they operated as a criminal organization, something very complex and the reason why principals are indicted as perpetrators like the participants or executors.

“In any case, it is worth highlighting that the CPMI report only has the capacity to suggest the practice of illegal acts. Who will investigate and indict, if applicable, is the Public Ministry,” he said.

The accusations made by the rapporteur recall the same articles of the Penal Code for which the defendants in the January 8 investigation have been convicted, such as criminal association, violent abolition of the democratic rule of law and coup d’état. To apply the thesis of mastery of the facts, the rapporteur is considering “criminal association” as “criminal organization”, seeking conviction with imprisonment and payment of fines, if the MPF presents a complaint and it is accepted by the STF.

Paraná Public Prosecutor’s Office Rodrigo Chemim also highlighted that indicting someone is a “purely administrative act”, which serves to formalize the suspicion, but without any connection to the MP and without being the condition for carrying out criminal action.

The aggressive tone of the report reinforces the idea of ​​persecution

He drew attention to the blatant tone of accusation used by the rapporteur, which was seen as a political bias and also as a way of filling gaps in content, capable of making the continuation of the investigations unfeasible. For political scientist Ismael Almeida, the tone of the report could favor Bolsonaro, as the intention to condemn him at any cost becomes more visible, making him a victim of persecution by the power apparatus.

He recalls that Covid’s Parliamentary Commission of Inquiry (CPI), for example, presented different requests for indictment to the MPF, some of which were accepted, but no charges have yet been proposed. Much of it has been archived and others are still in the due diligence phase. As for the theory of control over the incident, he believes that it is clear that it is difficult to attribute responsibility to the former president for the vandalism, when he was not even in the country.

In practice, the report serves to undermine Bolsonaro’s figure, reinforcing the narrative that he is the mastermind of a failed coup engineering. Many of these arguments and supposed signs are already embraced by the investigations chaired by Minister Alexandre de Moraes, of the STF.