Mendonça and Nunes Marques ruled out a coup thesis at 8/1

The ministers of the Federal Supreme Court (STF) differed in relation to the thesis about an attempted coup on January 8th. At the trial of Aécio Lúcio Costa Pereira, this Thursday (13), nine ministers accompanied the inquiry’s rapporteur, Alexandre de Moraes, to sentence the defendant to 17 years in prison for attempted coup d’état, among other crimes. But André Mendonça and Kássio Nunes Marques voted against this understanding.

Minister Mendonça considered that there was no plan designed to install a new regime in the country. “A coup d’état demands acts not only of removal from power, but of the establishment of a new institutional political order. So, I have to remove the elected power, and institute or take actions that lead me to seek to institute a new power, even if it is illegitimate. I need to define what I’m going to do with the National Congress, I need to define what to do with the Federal Supreme Court, I need to define what will be done with the press, with people’s freedom, with the university environment”, he said.

“A series of planning and conduct, which, with due respect, I did not see in these movements. The perspective of their action was to create a situation of institutional instability, but any coup d’état action would depend on the action of other forces. Basically, from the military,” he said.

Nunes Marques, in turn, argued that Aécio should only be convicted of damage to public property and deterioration of property because there would be no potential for an effective coup d’état, even if there was an attempt.

He argued that the 2021 law, which created crimes against democracy, should be interpreted by the “potential to produce on a concrete level” the abolition of the Democratic Rule of Law. “Although the abolition of the Rule of Law does not occur, which could be accomplished, as a rule, by force of a true coup d’état or a revolution, it is necessary, as required by the criminal law, that one of the Powers of the Republic, due to of violence and serious threat, is prevented or has restricted the regular exercise of its duties with sufficient intensity to abolish the Democratic Rule of Law”, said Nunes Marques.

In other words, without an effective impediment or restriction on the exercise of powers, the crime would not be constituted. “The truth is that the depredation of the buildings that are the headquarters of the Powers of the Republic at no time threatened the authority of the dignitaries of each of the Powers, nor the Democratic State of Law that has long been consolidated in our country since the Constitution 1988”, stated the reviewing minister.

Moraes and 8 other ministers understand that there was an attempted coup

Moraes opened the trial, still on Wednesday, saying that the records, the testimony of witnesses and the conclusions of the federal intervenor prove that the public buildings in Praça dos Três Poderes were invaded using violence or serious threats, to try to “depose the legitimately constituted government, through the depredation and occupation of the headquarters buildings of the Three Powers of the Republic”.

Several ministers echoed Moraes when he said that the January 8 act was not a “walk in the park”, refuting defense claims that there were no conditions to overthrow the government. For the majority, the attempted coup d’état, with attacks on other powers, was based on the idea that the result of the 2022 election, with the victory of Luiz Inácio Lula da Silva (PT) over former president Jair Bolsonaro (PL), it would not be legitimate.

Barroso said that the trial has a “didactic and civilizing” character. “The attempted coup d’état, which seems to me to be characterized here, is a reunion with the worst days of our past. Preaching for the return of a military regime, of a dictatorship, is once again reviving ghosts that haunted the generation of all of us who are here and who lived through difficult days, from an institutional and democratic point of view, that began with the 1964 coup. ”, he stated, referring to the removal of a president through unconstitutional means.

Afterwards, he highlighted that many protesters wanted to review the electoral result, claiming that fraud had occurred in the counting of votes. “All of this was explored based on a lie, that there was fraud in the elections. The idea that the president was not legitimately elected. The source code that runs at the polls was opened a year before the elections, it was examined and monitored by all entities that so desired, by the parties, by the Federal Police, by the Public Ministry. And for better or worse, I invited the Armed Forces to inspect it, and although unfortunately they behaved suspiciously, in the end they produced a report saying that they found no fraud.”

Barroso understood, however, that the crime of violent abolition of the Democratic Rule of Law was not characterized. “In my view, the crime of attempted coup d’état absorbs the crime of violent abolition of the Democratic Rule of Law,” he explained.