Mendonça and Nunes Marques oppose Moraes on invasions

Although he had the support of most colleagues in repressing the invasions of the headquarters of the Three Powers, Minister Alexandre de Moraes has already received repairs within the Federal Supreme Court (STF). Some measures considered excessive by the legal community have already begun to be pointed out within the Court, and openly, by ministers André Mendonça and Kassio Nunes Marques, in two judgments last week.

The two ministers, appointed by former President Jair Bolsonaro (PL), disagreed, to a greater or lesser extent, with Moraes’ decision to arrest Anderson Torres, former Secretary of Security for the Federal District and former Minister of Justice in the Bolsonaro government, and that of removing Governor Ibaneis Rocha (MDB) from office. For both, it was necessary to prove with facts that the measures were necessary and adequate.

Mendonça and Nunes Marques considered the invasions very serious, due to the violent character of the demonstration, something not allowed by the Constitution. But they pointed out, at first, that they disagree with the typification of terrorism. They highlighted that the law in force in Brazil on this crime only characterizes attacks committed by xenophobia, discrimination or prejudice based on race, color, ethnicity and religion, and not by political or ideological motivation, as was the case.

“So far, at least from what can be seen from the current stage of the investigation, all factual references indicate acts motivated by reasons of a political-ideological nature, which, it should be reiterated, in no way justifies (nor mitigates) what happened” , wrote Mendonça in his vote. “The occurrence of political acts classified as ‘anti-democratic’ does not appear as a motivation provided for in Law No. 13,260/2016”, recorded Nunes Marques.

Both also highlighted, in the case of the arrest of Anderson Torres, the fact that there would no longer be a risk to public order with his freedom, as Alexandre de Moraes pointed out – the premise was that, released, the former secretary could contribute to new acts violence against institutions. The reason for the contrary is that, still on Sunday (8), Torres was exonerated from the position of secretary and that the security area was taken over by the federal intervenor Ricardo Capelli, appointed by President Luiz Inácio Lula da Silva (PT).

“I understand that those investigated can no longer cause, by action or omission in the conduct of public security policies, the aforementioned reiteration in the commission of the investigated crimes. Absent, therefore, contemporaneity in the presence of the reasons leading to precautionary custody in the absence of indication that such investigated may, in some way, allow the reiteration of criminal conduct”, wrote Mendonça.

He added that, to justify a preventive detention, the seriousness of the conduct is not evaluated – something dimensioned in the final judgment of the process, to determine the penalty –, but rather its usefulness in preventing the occurrence of more crimes (the maintenance of public order ), to preserve the investigations or to prevent the investigated person from frustrating possible punishment, for example, fleeing the country – Torres was on vacation in the United States, but he returned to turn himself in to the Federal Police after learning of the arrest warrant.

Nunes Marques went further: he considered that there is no evidence that Torres even committed the crimes pointed out by Moraes, not only terrorism, but also those of criminal association, violent abolition of the Democratic State of Law, coup d’état, threat, persecution , incitement to crime, and damage to public property.

All of these crimes were attributed to the invaders, but, for Moraes, they could also have been committed by Torres and Ibaneis for “deceitful omission”. The idea is that they would have intentionally failed to provide the necessary security to prevent invasions. Nunes Marques, however, considered that this assumption is not supported based on what is known so far. For him, there was, at most, negligence, which does not allow the imputation of crime.

He highlighted that, in his defense, Ibaneis Rocha proved that he ordered the end of the camp in front of the Army Headquarters, from where the demonstrators left, but that this order was not carried out because the Army itself did not allow it. In addition, he mentioned a message he sent to the commander of the PM, at 3:39 pm on the 8th, when the invaders had already started vandalizing the Congress. “Get these bums out of Congress and arrest as many as possible,” wrote Ibaneis.

In his vote, Mendonça also drew attention to another point that has been ignored by Moraes: the responsibility of federal government authorities in the case. Right-wing parliamentarians have been charging the minister, so far unsuccessfully, with an investigation into alleged omission by the Minister of Justice, Flávio Dino, who was aware of the risk of invading the headquarters of Congress, the Planalto Palace and the STF. Dino says that the competence to take care of security was primarily the responsibility of the Federal District.

Mendonça defended, in his vote, that everyone be investigated. “I emphasize the need for the investigation to be extended to all agents and public bodies – of any level or instance – who, invested with constitutional and legal duties, notably in the areas of intelligence (members of SISBIN) and public security, have omitted or failed in the exercise of its duties, either in the duty of sharing intelligence information, or, based on this information or any other data indicative of risks, in the planning or execution of the security scheme”, he said.

In the vote on the removal of Ibaneis, Nunes Marques also noted that it would not even be up to the STF to analyze the case. As he is governor, the forum for judging him is the Superior Court of Justice (STJ). Removal from office, moreover, would be an excessive measure, in the minister’s understanding, again because security is already under federal intervention.

“There are no elements of conviction that allow us to conclude that the Governor of the Federal District could repeat the commission (by omission) of the crimes attributed to him or that he would exert a deleterious influence on the investigations, in order to frustrate the application of the criminal law”, he pointed out.

Nunes Marques also disagreed with other measures determined by Moraes: the arrest in flagrante delicto of all those who were still camped in front of Army barracks, and the suspension of entire profiles on social networks. He claimed that they were disproportionate orders, greatly limiting the rights of assembly and free expression of thought.

“The generic argument that such environments harbor “terrorists” necessarily requires the identification of those responsible for the criminal offenses that occurred on 01/08/2023 – which caused great damage to public property – and the individualization of their criminal conduct”, he said, regarding the order to dismantle camps and arrest demonstrators.

Regarding social networks, it allowed only the removal of illegal content, not the suspension of profiles. “The removal of profiles, accounts or channels on social networks removes, in advance, the right to expose ideas with lawful content in the most diverse fields (political, economic, social, legal, historical, cultural, among countless others); and removes the individual from social networks, an environment for expressing the rights inherent to his personality, characterizing a true penalty of banishment from the digital world ”, he wrote.

In the trials, held on the 11th, eight other justices accompanied Moraes, giving him victory to endorse his decisions: Edson Fachin, Luís Roberto Barroso, Luiz Fux, Dias Toffoli, Ricardo Lewandowski, Cármen Lúcia, Gilmar Mendes and Rosa Weber. None, however, made their written votes available in the system.