Points of investigation into Bolsonaro have no consensus – 03/20/2024 – Power

Impediment of Alexandre de Moraes, trial on January 8th outside the competent court, concentration of power in a single minister, restriction of access to Mauro Cid’s testimony and veto of contact between lawyers.

These are points about the investigations against Jair Bolsonaro (PL) that have already raised doubts or are criticized by the former president’s defense. Bolsonaro is being investigated in cases such as the coup plot, jewelry embezzlement and vaccination card fraud, for which he was indicted this week by the PF.

Despite agreeing on the inadequacy of the decision related to contact between lawyers, experts consulted by the Sheet differ on the validity of the other arguments. They make the reservation that the observations are based on general premises, since they did not have access to the files, which are being processed confidentially.

Moraes offside

Bolsonaro’s defense called for the removal of STF minister Alexandre de Moraes from reporting on investigations involving anti-democratic acts. According to lawyers, the minister positions himself as both a victim and a judge. In January of this year, Moraes said that the investigation into the coup acts showed plans to arrest and hang him.

For Henderson Fürst, professor of constitutional law at PUC-Campinas, the minister does not need to consider himself impeded, since he is not the target of the attacks, but rather the democratic rule of law.

Fürst states that the court plenary has already decided not to be impeded in a similar situation. He cites the case of then federal deputy Daniel Silveira (at the time at PTB-RJ), who requested suspicion against 9 of the 11 members of the court in 2022. At the time, the parliamentarian’s defense claimed there were reasons to doubt the impartiality of the ministers. Silveira was being investigated for threats against magistrates.

Helena Lobo da Costa, professor of criminal law at USP, agrees that the minister does not need to declare himself impeached, since he is not the target of the attacks. She argues that those under investigation cannot try to create obstacles by offending the judges.

Professor of criminal procedural law Gustavo Badaró, also from USP, states that, although this is not a typical situation of impediment, it is unlikely that the judge’s impartiality would not have been affected, given the allegations of arrest and death against he.

With a similar interpretation, Jordan Tomazelli, master in procedural law from Ufes (Federal University of Espírito Santo), states that the criticism regarding the possible compromise of the minister’s impartiality is pertinent.

In February, the president of the STF, Luís Roberto Barroso, denied the impeachment request made by Bolsonaro’s defense, stating that the arguments presented did not fit into the objective hypotheses provided for by law.

Jurisdiction of the STF

For Badaró, the STF’s competence in relation to investigating those involved in the January 8 attacks is questionable.

According to the expert, at the time the investigation was launched there were no concrete elements that pointed to the participation of people with special jurisdiction. The justification that the Supreme Court could open the investigation because the event occurred on its premises is based on a very broad interpretation of the court’s rules, he argues.

Tomazelli states that, in the case of January 8, the trial by the STF of people without jurisdiction may occur if the investigations indicate a connection with those being investigated with jurisdiction, but he says he is unable to specify the validity of connections without access to the processes.

For Fürst, the internal regulations provide that crimes occurring on the premises of the STF are investigated by the court itself. Similarly, Helena states that the January 8 attacks are a clear case of the STF’s jurisdiction.

Access to tests

Fürst, Badaró and Tomazelli agree that Bolsonaro’s defense should have access to Mauro Cid’s testimony and other evidence involving the former president, under penalty of violating the principle of contradictory and broad defense. In the case of digital evidence, access is also important to ensure that it is reliable, as this type of evidence is easily tampered with, says Badaró.

For Fürst, the lack of access to the statement could give rise to a future request for nullity that could compromise the investigation. Furthermore, the longer the defense takes to gain access, the greater the chances of trying to reverse the entire process.

Tomazelli says that the lack of access to the statement may lead to a request for the declarations to be null and void, but not the entire investigation. Badaró agrees that the situation may justify the annulment of acts in the process.

Helena, in turn, points out that the denial is plausible if it is understood that access could harm the progress of the investigation. If, however, a criminal action is initiated and the former president becomes a defendant, then he must have the material released.

On the subject, Alexandre de Moraes has already maintained that full access to documented evidence was granted, with the exception of ongoing investigations and elements of Mauro Cid’s collaboration, since the court’s jurisprudence understands that the “denial of access to terms of award-winning collaboration relating to ongoing investigations”.

Concentration of power

For Henderson Fürst, the allegation that there is an undue concentration of cases under Moraes’ responsibility is unfounded. According to him, the connection between the different investigations with the minister is plausible. Furthermore, although the minister now makes monocratic decisions, the judgment will necessarily be collegial, he says.

Gustavo Badaró argues that there is an “abuse of the institute of connections” in these cases. “There is an illegal distortion of the connection rules so that allegedly related events are investigated by the same rapporteur, but without applying the effect of the connection, which is the bringing together of the processes”, he says.

For Helena, there seems to be a connection between the processes, but it is not possible to know how valid it is without access to the records. Jordan Tomazelli also states that the evidentiary connection would justify the concentration, although it is necessary to access the processes to know whether it is sustainable.

Restriction on contacts between lawyers

You Experts claim that the ban on contact between those investigated in Operation Tempus Veritatis, “including through lawyers”, was inadequate.

The order to restrict communication through lawyers generated a reaction from entities such as the OAB (Brazilian Bar Association), which lobbied against the measure alleging disagreement with the legislation and the prerogatives of the legal profession. After the repercussions, in February, Moraes stated that he never prohibited the parties’ defenders from communicating.

“Technically, the decision is not sustainable. There is no legal argument to prevent this conversation between lawyers”, says Helena.