PGR agreement proposal brings dilemma to defendants camped on January 8

The willingness of the Attorney General’s Office (PGR) to offer an agreement of non-criminal prosecution to the defendants of the 8th of January who were camped at the Army Headquarters (QG) brought them a dilemma. If, on the one hand, they are tempted to make the deal, to quickly get rid of the exhausting process, monitoring with the electronic anklet and an almost certain conviction in the Federal Supreme Court (STF), on the other hand, they would be forced to confess to crimes that are sure they didn’t. That’s what lawyers for several defendants have been pondering along with them, in conversations that began last week.

Several of these defenders, who work as a group, are already planning to broadcast live to the accused and their families to explain the advantages and disadvantages of the agreement, its practical consequences and even the psychological effects on the defendants, many of whom are facing intense suffering. during the last few months.

This Tuesday (22), Minister Alexandre de Moraes, who conducts investigations at the STF and who is responsible for approving any agreement, gave a positive sign for the negotiations. He suspended the criminal actions already opened against more than a thousand defendants who did not directly participate in the invasion and depredation of the headquarters of the Powers, giving the PGR time to evaluate the conditions that will be proposed to them to get rid of the process.

The criminal non-prosecution agreement is a recent creation, approved in 2019 by Congress within the so-called anti-crime package. Very common in the United States, it can be agreed between the Public Prosecutor’s Office, the body in charge of the prosecution, and the investigated person, in the event of less serious crimes, with a penalty of up to 4 years; committed without violence or serious threat; and when the investigated confesses that he committed the crime.

It is up to the MP himself to assess the granting of this benefit, if he considers it to be necessary and sufficient for disapproval and crime prevention. In this case, the agency proposes that the investigated party confess and fulfill certain duties, such as repairing the damage caused, giving up property or rights acquired through the crimes, providing services to the community and paying a fine.

If the investigated person accepts and complies with everything, he is free from the complaint, the criminal process, any restrictions – such as the use of the ankle bracelet, prohibitions on contact with other investigated people, limited displacements – and eventual conviction. He won’t have a dirty record in court or a bad record. But he also won’t be able to make another deal for the next five years; thus, if you engage in any other crime, you will have to pay for it.

Accused must assess consequences of eventual conviction

The possibility of closing such an agreement has attracted the attention of a good part of the 1,156 people arrested in front of the Army HQ on January 9, the day after the invasion and depredation of the STF, Congress and the Planalto Palace. The PGR acknowledges that it has no proof that they have not engaged in acts of vandalism or attempted a coup d’état. At most, they gathered to incite the military to contest the election or to remove President Luiz Inácio Lula da Silva (PT).

For this reason, the body accused them of crimes of inciting animosity by the Armed Forces against constitutional powers and criminal association, whose sum penalties reach 3 years and 6 months in prison – at this level, the convict remains in the open regime and the punishment is converted into provision of services and fine. These would be more or less the same obligations that would be imposed in a criminal non-prosecution agreement.

The difference is that there would be no conviction and its harsh consequences: the dirty record, which implies that, in a future crime, the person would already be considered a repeat offender or with a bad record and, therefore, would receive a greater sentence, if convicted; the social stigma caused by criminal conviction, which can hinder the search for a job; in addition to the suspension of political rights, which is a ban on voting and running for office, until the end of the sentence.

The suggestion of offering agreement to the camped defendants came from the Brazilian Bar Association (OAB) and was adopted by the PGR. Although many defendants are tempted to accept, some still resist, because they consider that they have not committed any crime. They were at the HQ expressing their indignation in relation to the electoral process, which they considered partial to benefit Lula’s victory, and therefore, unfair to former president Jair Bolsonaro (PL).

They still felt safe and understood that they were within the legal framework, especially after the Armed Forces, in an official note issued in November, considered that they had the right to demonstrate peacefully in the area. “The fact that there are banners with ‘SOS Forças Armadas’, to impute an incitement to a coup is pushing too hard”, says Carolina Siebra, lawyer of several camped defendants.

“Agreement throws prolonged and inhuman prisons under the rug”, says lawyer

In addition to considering them innocent, Carolina Siebra argues that the process they were subjected to is full of illegalities and that there is no evidence to convict them, because the complaint is generic and does not individualize the conduct of each one.

For the lawyer, the PGR’s decision to offer an agreement is intended to throw under the rug prolonged and inhuman prisons to which the campers were subjected. She says that some prisoners and accused were not even in Brasilia on January 8th and therefore did not participate in the camp. They were detained because they were there on the morning of the 9th to collect belongings from family members and ended up being taken to a gym without knowing they were being arrested. There were elderly people who didn’t know what was going on, according to her.

“They know that the police committed illegality in arresting them and this agreement is a way of circumventing that, forcing people to confess and, thus, say that they were always right”, says Carolina. “If we were in the normal Democratic State, these people would be clearly innocent. Also because there is no proof that they committed anything”, adds the lawyer.

For her, evidence that the PGR knows that many are innocent is that initially, when it denounced the campers, the body told the STF that it would not offer a non-criminal prosecution agreement because it understood that the crimes were serious and that the benefit would not would serve to prevent and reprove the conduct.

The PGR changed its view and now says that there was a “dissipation” of the threats to the Democratic State. The body defended the settlement of the agreement even after the offer and acceptance of the complaint – the STF is still evaluating whether this is possible. Logically, if it considered that there was no seriousness or threat of reiteration of crimes, the PGR could have offered the agreement before any formal accusation.

Defender sees little prospect of acquittal, in the face of statements by ministers

Public defender Gustavo Ribeiro, who with colleagues from the Federal Public Defender’s Office (DPU) assists more than a hundred defendants who were camped out, says that it will be up to each one, individually, to choose whether or not to accept the agreement. “The disadvantage is that the case will not be discussed on the merits. Even if the person considers himself innocent, he takes the blame”, he summarizes.

Choosing not to accept the deal has consequences. For him, the person will face a process with little prospect of acquittal, due to the various statements already given by the majority of STF ministers of harsh disapproval of the conduct, which signals that they will vote for conviction. In addition, as they are already being processed in the last instance of Justice, the chance of reversal is minimal – it is possible to file appeals, but the judges will be the same and it is very rare for ministers to review their own sentences.

The defender also says that, if the PGR can effectively offer the agreement – this will still depend on Alexandre de Moraes’ authorization – and if the defendant accepts, it will still be up to him to assess, with the defense, whether the required consideration is reasonable. In practice, whether the services to the community and the stipulated fine are compatible with the person’s individual condition.

“It’s no use imposing something that the person cannot comply with”, says Ribeiro, remembering that several defendants are poor and elderly people. That is, they may not have the income and assets to pay a high amount and may not be physically able to provide the community service that may be required. In this case, it will be an individual negotiation, and not a collective proposal – this differs from the current procedure, with standardized complaints for everyone.