Nunes Marques and Mendonça counter Moraes in votes on January 8

In the judgment of the first hundred complaints against demonstrators involved in the protest and vandalism against the Three Powers, on January 8, ministers Kassio Nunes Marques and André Mendonça countered several points of the vote of the rapporteur of the case, Alexandre de Moraes.

Although defeated, they accepted a good part of the arguments of the defenses, both from the group accused just for participating in the camp in front of the Army Headquarters, in Brasília, and the group caught inside the Planalto Palace, the Congress and the Federal Supreme Court, partially depredated that Sunday.

The complaints against one hundred participants in the acts have already been received by the majority of the STF. It means they will now face criminal prosecution as defendants. Throughout the action, they will have another opportunity to defend themselves, calling witnesses to testify in their favor, or gathering new evidence to try to convince the Justice of eventual innocence.

In analyzing the complaint, however, Nunes Marques and Mendonça criticized important points of the rapporteur’s arguments and the very way in which the case is being conducted in the STF.

First, both agreed that the protesters could not even be investigated, let alone prosecuted in court. For this, they cited recent decisions, many from Operation Lava Jato, which reaffirmed the understanding that only in very exceptional cases, people without the so-called privileged jurisdiction are judged in the STF.

In fact, specific inquiries were opened in the STF against Clarissa Tércio (PP-PE), André Fernandes (PL-CE), Silvia Waiãpi (PL-AP), Coronel Fernanda (PL-MT) and Cabo Gilberto Silva (PL-PB). , all supporters of former President Jair Bolsonaro (PL). They became targets for having announced, commented on or shared videos of moments of the invasion on their social networks.

To justify maintaining the denunciations in the STF, Alexandre de Moraes stated, in his vote, that the crimes attributed to people who were camped at the Army HQ or to those who invaded the buildings would have an “evident connection” with five right-wing deputies who are also investigated for allegedly encouraging the January 8 demonstration.

Citing the Attorney General’s Office, which made the allegations, Moraes spoke of an “intersubjective bond” between protesters, and a “close connection” with parliamentarians, since evidence gathered against some could influence the situation of others.

For Kassio Nunes Marques and André Mendonça, however, the rapporteur’s vote does not indicate what these connections would be. For this reason, they argued that the case of the protesters – either the campers or the invaders – could not even be processed by the STF.

“I did not identify a concrete circumstance – in the vote given by the Rapporteur [Moraes] – that could determine the exceptional attraction of jurisdiction, by connection or salute, to process the investigations and criminal actions arising from Inquiries 4921 and 4922, in which the defendants do not have the prerogative of jurisdiction, in relation to investigations still in progress involving jurisdiction holders by prerogative of function in this Supreme Court”, wrote Nunes Marques.

In other parts of the vote, he even made an indirect criticism of Moraes, suggesting that he cannot exercise a “universal judgment” on cases involving attacks on institutions – the expression has been used a lot by ministers and lawyers in recent years to criticize the concentration of cases involving corruption with former judge Sergio Moro, within the scope of Lava Jato. For Nunes Marques, the inquiries against the five deputies who publicized the January 8 demonstration should not even necessarily be investigated by Moraes. Inquiries against them, he noted, should have been freely drawn among the ministers.

Moraes invoked the investigations for himself as he saw the link between the act against the Powers and the “fake news” inquiries and the “digital militias” inquiry. But also in these cases, Nunes Marques said that the relationship between these investigations and the January 8 protesters has not been demonstrated.

“Over time, there was a decision-making dynamic revealing the excessive expansion of the objects of Inquiries 4,781 and 4,874, in which arrests and numerous precautionary measures were granted, a reality that persists to the present date”, criticized Nunes Marques.

André Mendonça also noted that there was no description of the conduct of the deputies and their possible connection with the demonstrators. For him, it makes no sense for these to be prosecuted along with politicians in the STF, not least because they respond to different surveys.

“The holders of jurisdiction by prerogative of function eventually denounced will not exercise, in one way or another, their defenses in the midst of the processes brought by the complaints here under discussion, because, wherever such processes are processed, here or in the first instance, there is no appear as parts of them. They will not, in principle, be at the hearings, they will not contradict witnesses, they will not ask questions. Anyway, they are not party to this procedural relationship,” he wrote.

Relying also on the most recent jurisprudence of the STF, Mendonça reinforced that even if there was a connection between the parliamentarians and the protesters, the rule would be the dismemberment. In other words: only those cases that have privileged jurisdiction should remain in the Court, and cases against ordinary citizens should be sent to the first instance, without the prerogative.

A harmful consequence for the protesters would be the suppression of the possibility of appealing to the different instances of Justice, since the Supreme Court is the highest body of the Judiciary. In other words, against your decisions, there is no one to appeal.

Generic complaints

Nunes Marques and Mendonça also emphasized, in their votes, the fact that the PGR’s accusations, and also Moraes’ votes, were practically identical in relation to the two groups of denounced. The first group is made up of those camped at the Army HQ, accused of criminal association and incitement of the Armed Forces against the Constitutional Powers (Executive, Legislative and Judiciary). The second group, invaders and vandals, is accused of damage to public property, depredation of listed property, attempted abolition of the Democratic State of Law, coup d’état and criminal association.

For the two ministers, the complaint against the campers should be rejected in full. Both understood that, just because they were gathered in front of the HQ the day after the invasion of the headquarters of the Powers, it did not mean that they would all be encouraging an intervention by the Armed Forces to seize power. If part of them manifested themselves in this sense, it would be up to the PGR to identify exactly who would have practiced this conduct, when and how.

“He left the charge of identifying and exposing the allegedly criminal facts, with all their circumstances”, pointed out Nunes Marques. “The allegations start from mere conclusions, with photos and descriptions of the activities carried out in the camp in front of the Brasília Headquarters, without pointing out any concrete behavior of the denounced that could support such an accusation”, he wrote next. For him, the PGR’s complaints “only narrate, in a generic way, the abstract gravity of the investigated crimes”.

There would still not be, in the understanding of Nunes Marques, the crime of criminal association. Citing legal scholars, he said its setup requires a group of people to come together for the deliberate purpose of committing “indeterminate crimes”, which would not be the case.

Mendonça also pointed out the lack of individualization of the behavior of those encamped. For him, saying that people joined a demonstration that contained banners and shouts of order asking for intervention does not mean that they agreed with that. “The problem with this prosecution’s narrative, however, is that it assumes, without proof, an absolute uniformity and homogeneity of that mass of people”, wrote the minister.

“Do not forget that in the camp, surely, there were malicious people, people who wanted a coup d’état, people whose reasons for being there harmonized with the deceit narrated by the Public Ministry. And it is even possible to consider that there were a good number of them. Such circumstances, however, do not authorize the presumption that rigorously everyone who was there acted with the same intentions and, therefore, do not allow the uniform imputation against all those people, without pointing out elements that demonstrate, individually, the subjective guilt of each which one”, pondered Mendonça. “Generalizations are always reckless. in criminal law, and in malan partem [contra o investigado]inadmissible”, he asserted.

He gave the example of the 2013 demonstrations, in which most protesters were not even investigated because they did not participate in acts of vandalism. He recorded that, on 9 January, people arrested at the HQ did not resist the police approach, and suggested that many did not even know they were going to jail. “Nobody tried to flee and nobody disturbed the stage, according to the words of the military police who were in the operation and were heard in the inquiry”, recorded the minister. Mendonça added that, in their testimonies, several said that they arrived in Brasília at the end of the 8th.

Against the invaders, Mendonça accompanied Alexandre de Moraes and accepted the complaint for all the crimes pointed out – even though he defended the decline of cases to the first instance. Nunes Marques, in turn, understood that they should not answer for all the accusations. For him, only accusations of damage to public property, deterioration of listed assets, attempts to abolish the Democratic State of Law, due to the fact that depredations have affected, for weeks or months, the functioning of institutions are valid.