Moraes and Nunes Marques disagree about severity and blow in 8/1

In the first trial of a defendant arrested on January 8, a crucial question divided ministers Alexandre de Moraes and Kassio Nunes Marques: whether or not the invasion and depredation of the buildings of the Federal Supreme Court (STF), Congress and the Palácio do Planalto constituted an attempt at a coup d’état and to prevent or restrict the exercise of constitutional powers?

For Moraes, the case’s rapporteur, the crowd’s objective was to depose President Luiz Inácio Lula da Silva (PT) through a military intervention conducted by the Armed Forces, with the aim of installing an authoritarian regime. For Nunes Marques, reviewer of the criminal action, there was no chance of this happening, and as a result, the invaders should only be condemned for causing damage and deteriorating public property.

The difference in the severity of the conduct was expressed in the proposed punishments. Moraes defended a sentence of 17 years in prison in a regime initially closed to the sanitation technician Aécio Lúcio Costa Pereira, plus payment of R$30 million (along with other convicts, to repair the damage caused), in addition to a fine of R$44 thousand for the crimes charged, which would include criminal association. Nunes Marques proposed 2 years and 6 months in the open regime and a R$2,640 fine.

The trial will continue this Thursday (14), with the votes of ministers Cristiano Zanin, André Mendonça, Edson Fachin, Luís Roberto Barroso, Luiz Fux, Dias Toffoli, Cármen Lúcia, Gilmar Mendes and Rosa Weber. The decision depends on a majority of 6 votes among the 11 ministers, who will also be able to judge three other defendants accused of the same crimes. In total, 232 people were accused in the same way, in complaints with a standard text.

In this Wednesday’s session, Moraes fully accepted the accusations of the Attorney General’s Office (PGR), which invoked the thesis of a “multitudinous crime”. The idea is that it would not be necessary to detail, in the complaint presented, each act of the person caught in the act inside the invaded buildings. It would be enough to take into account the result of the conduct he practiced with the “mob”: the supposed attempt to abolish the Democratic Rule of Law, the premise of the complaint.

“It is proven in the records, both by the testimonies of witnesses listed by the Federal Public Ministry, and by the conclusions of the federal intervenor, that Aécio Lúcio Costa Pereira, as a participant and member of the caravans that were at the Army HQ camp that weekend, and an invader of public buildings in Praça dos Três Poderes, using violence or serious threats, attempted to depose the legitimately constituted government, through the depredation and occupation of the headquarters buildings of the Três Poderes of the Republic”, stated Alexandre de Moraes.

During the reading of the vote, he also showed videos of Aécio Pereira inside the Senate plenary, where he was arrested, and on the Congress ramp, celebrating the invasion. “Friends of Sabesp, who didn’t believe, we’re here, who didn’t believe, I’m here for you too, f…, look where I am, at the president’s table”, said the sanitation technician, wearing a t-shirt with the phrase “ federal military intervention.”

To prove that there was an attempted coup, Alexandre de Moraes highlighted the fact that several protesters made videos of the moment of the invasion. “Why do they film themselves and put it on social media? Because they were sure they would achieve a coup d’état. The feeling of impunity was so great that they filmed it, so they could later say that they participated in the coup d’état, they were sure that the Armed Forces would join in and that the police would not remove them, and they ended up incriminating themselves,” he said.

The minister also cited excerpts from Aécio Pereira’s statement, in which he admitted that he left São Paulo with the aim of “fighting for freedom”. When asked about this by the police, he replied that he could not “say whether the procedure to achieve such freedom would be to depose the elected president”.

Nunes Marques says the conviction should be for damage to property

Nunes Marques, in turn, argued that the invader 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 point 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 of 1988”, stated the reviewing minister.

“Nor is there any element of evidence, no matter how small, of the practice of any act of violence or serious threat against any political agent, representatives of one of the Powers of the Republic, not even civil servants”, he added.

The minister also ruled out the crime of criminal association. “In this case, it cannot be assumed that all the defendants arrested in the invaded buildings or in the vicinity of them manifested without distinction such an associative bond with a certain stability and with the objective of committing undetermined crimes”, he highlighted.

Nunes Marques also did not adhere to the “multitudinous crime” thesis, which would undermine the complaint presented by the PGR, which he considered generic. The prosecution, he stated, should have demonstrated in detail the conduct of each of the defendants. “It was the duty of the prosecution to have scrutinized the conduct of each accused, which in fact it did not do, since the complaint is completely indeterminate in relation to the circumstantial data of the accused’s conduct in relation to the crimes under analysis”.

What the PGR said about the defendant

Responsible for the accusation, the Attorney General’s Office (PGR) also asked for the sentence to pay a fine of R$ 100 million, to cover losses to vandalized buildings, valued at R$ 25 million, and collective moral damages, for attacking democracy .

When defending the conviction, deputy prosecutor Carlos Frederico said, during the oral argument, that the defendant’s delight in the violent acts carried out was noticeable. “Their subjective adherence to the coup intent of the anti-democratic horde is indisputable,” he said.

The complaint against the technician does not detail which objects he had vandalized, but for the Federal Public Ministry, this would not be necessary. The body maintained that there was a “multitudinous crime”, committed by a mob of people, with the result, in this case, being the attempt to carry out a coup d’état to remove President Luiz Inácio Lula da Silva.

What the defendant’s defense said at the STF

In defense of Aécio Pereira, lawyer and retired judge Sebastião Coelho da Silva began the oral argument by stating that the client was being subjected to a “political trial”, which would be proven by criticisms of the protesters made, outside the process, by Moraes and Carlos Frederico, and the fact that he does not have a privileged forum to be judged by the STF.

“Our Constitution says that no one will be prosecuted or sentenced except by the competent authority, with the inherent resources. There will be no exception court, and here we have the list of people who can be tried by this court, and in the specific case that we are examining, unequivocally, the jurisdiction for the trial lies with the federal court of first instance”, stated the lawyer.

Over the course of an hour, he and another lawyer refuted the complaint, reiterating that it was generic, without evidence of individual acts by Aécio Pereira that could certify that he would be capable, together with other protesters, of carrying out a coup d’état, not even of who allegedly committed vandalism and violence on the day of the invasion.

“Did anyone bring a rifle to Brasília? Among those people who were there on January 8th, there was none. Was there an impediment to the functioning of the Powers? Which Power stopped working due to the action that took place in this building and other buildings? This Supreme Court was in recess, Congress was in recess. The President of the Republic, the following day, held a meeting with Your Excellencies, there at Palácio do Planalto, and they walked here. Was there a single day when the Powers didn’t work? Not a single day,” he said. He admitted that there was damage to the buildings, but reiterated that there were no ministers on the STF.

At the end of the oral argument, addressing the ministers, Sebastião Coelho stated that “they are the most hated people in this country”. Your Excellencies must be aware that they are the most hated people in this country.” Afterwards, he expressed solidarity with the Military Police of the Federal District, including arrested police officers. “Imprisoned and without pay. This is torture! Taking away the salary of a man, Minister Alexandre de Moraes, without a conviction! This cannot happen, these families are desperate and tortured!”

Moraes refuted the statement. He stated that “extremists who do not like the Federal Supreme Court are the minority of the population”. “This was demonstrated at the polls and in the coup acts, which a minority carried out. This was repudiated by the Brazilian population, who are serious, orderly, dignified, and who were degraded by what was done here in Praça dos Três Poderes,” he stated.

What the attacker said in the process

When he was arrested, inside the Senate, Aécio Pereira told the police that he had arrived in Brasília in the morning, coming from São Paulo together with friends from the “Patriotas” group – there are dozens of the type spread across the country, who are characterized by friendliness. with the military and support for former president Jair Bolsonaro.

During interrogation, he stated that his objective was to “fight for freedom”, but that he could not say whether the procedure to achieve this would be to depose Lula. He said that he did not damage anything in Congress and that, when trying to leave the galleries, there were several people breaking glass. He would have then decided to return and remain there, and was later arrested by the Legislative Police.

His lawyers said that, before heading to Congress, Aécio Pereira was searched near the Brasília Cathedral, when it was proven that he was not carrying any object that posed a risk to the physical integrity of other people or to public buildings. “His entry into the plenary was in search of safety,” said the defense, adding that he “was concerned about asking people to get out of there.”