The lack of description in the decisions made by Supreme Minister Alexandre de Moraes regarding the hierarchy of the alleged criminal organization that planned a coup d’état in favor of former president Jair Bolsonaro (PL) indicates a staged investigation strategy that is adopted in cases with complex criminal groups.
The decisions also do not indicate what the former president’s eventual legal status would be in the structure under investigation. Although several of Bolsonaro’s conducts were described in the investigations, such as his alleged participation in the drafting of a draft decree to carry out a coup, he was not the target of more severe measures such as search and seizure.
In the current stage, it was only determined that his passport would be collected and that he would not communicate with other people being investigated.
According to Moraes’ decision, the PF identified several groups of the criminal organization and named the names of its members, but Bolsonaro was not included in any of them.
For the PF, the criminal organization can be divided into six groups: nucleus of disinformation and attacks on the electoral system; nucleus responsible for inciting military personnel to join the coup d’état; legal core; operational nucleus to support coup actions; parallel intelligence core; and a nucleus of high-ranking officers with influence and support for other nuclei.
According to criminalist Maurício Zanoide de Moraes, professor of criminal procedure at USP, the description of these groups indicates the functions performed by the suspects, but does not reveal the hierarchy of the group.
Zanoide de Moraes says that defining the chain of command is a basic requirement for characterizing the crime as a criminal organization, which is why other investigation stages must be ongoing.
Pierpaolo Bottini, criminalist and professor of criminal law at USP, states that “investigating criminal organizations is not a simple task, there must be method and intelligence. As a rule, it starts from the direct executors of the acts and gradually gathers information about their structure, hierarchy and command . Identification of the leadership takes some time, it is the final act of the process”.
For criminal lawyer Ana Carolina Moreira Santos, president of the Commission for Women Lawyers of the OAB (Brazilian Bar Association), Pinheiros subsection, “from the collection of evidence with the identification of the immediate perpetrators, the actions perpetrated by them and the objectives , it is possible to identify the mediate perpetrators, the top members of the criminal organization”.
According to Moraes’ decision, the current stage of investigations addresses facts related to the attempted coup d’état and the violent abolition of the democratic rule of law.
The group’s actions are under investigation to “disseminate the narrative of fraud in the presidential elections, even before the election takes place, in order to enable and, eventually, legitimize an intervention by the Armed Forces, with violent abolition of the democratic rule of law, in the dynamics of a true digital militia”, according to Moraes.
One of the most serious facts attributed to Bolsonaro by the PF was his alleged role in drafting a decree to give a formal appearance to the coup actions.
According to Moraes’ decision, the draft “constituted exceptional measures, with details of ‘recitals’ about alleged interference in the Judiciary in the Executive Branch, to decree the arrest of several authorities and the holding of new elections in view of alleged fraud in the presidential election”.
The draft decree would have been the subject of meetings called by then-president Bolsonaro that involved both civilian members of the government and active military personnel, according to the PF.
“Regarding this point, the police authority highlights the occurrence of monitoring by several authorities, including the rapporteur of this investigation [Moraes]in order to ensure compliance with the arrest order, in the event of the coup measures being carried out”, completes the decision.
For Moraes, the practice of crimes against democracy and criminal association has already been proven, the maximum penalties for which amount to 23 years in prison.
The punishment for those investigated, however, may exceed this total if it is proven that the suspects also committed acts of violence.
The most serious crime described in the order is that of attempting to carry out a coup d’état — which carries a minimum sentence of 4 years and a maximum of 12 years, in addition to the punishment corresponding to the violence used to seek power.
The other crime recognized by Moraes is that of attempting to violently abolish the democratic rule of law. This crime occurs when someone acts with violence or serious threat to prevent or restrict the exercise of constitutional powers, such as, for example, the free functioning of the Supreme Court. The punishment ranges from 4 to 8 years in prison, in addition to the penalty for the violence used.
In relation to suspects arrested in the PF operation on Thursday (8), Moraes also cited the occurrence of the crime of criminal association, which carries a penalty of 1 to 3 years in prison.