Punishment of scammers will collide with gigantism and structure – 01/17/2023 – Power

The sheer size of the investigations into the coup attacks on the buildings of the three Powers on Sunday (8) in Brasília poses challenges to the investigative bodies and a series of obstacles to the judgment and effective punishment of the perpetrators of the crimes.

The accountability of those involved comes up against the very number of suspects that may be the target of lawsuits (including coup protesters, financiers and authorities), in addition to the volume of material to be analyzed and the structure of the Judiciary to handle the demand and avoid prescriptions.

This Tuesday’s balance sheet (17) shows around 1,400 people arrested in the penitentiary system of the Federal District for their participation in the attacks.

On Monday (16), the PGR (Attorney General’s Office) presented the first complaints in the case, against 39 accused of involvement in depredation in the Senate building.

The Federal Police and the Civil Police of the Federal District were working in a mutirão system, adopting standard forms to interrogate the suspects. STF (Federal Supreme Court) Minister Alexandre de Moraes also enlisted federal and district judges and delegated to them the task of holding custody hearings to monitor the regularity of detentions.

However, when the cases reach the Judiciary for judgment, several measures already adopted will have to be repeated in court, such as the collection of depositions from prisoners, so that the entire script provided for in criminal legislation is fulfilled.

Common obstacles in court cases, such as difficulties in summoning witnesses personally, tend to recur. And as each accused in a criminal proceeding is entitled to at least five witnesses (a number that can reach eight per investigated fact), there may be thousands of summoned by the Justice.

Another problem will occur with the expertise to be taken to the Judiciary. They include, for example, the analysis of the cameras in the lobbies of more than 200 hotels and inns in the Federal District, as decided by Moraes.

When a police investigation is taken to court or is produced in the course of the cases, the defendants have the right to appoint professionals to contest the reports (technical assistants, in legal language).

Thus, in general, this phase consumes a good part of the timeline of the processes, and in the criminal actions of coup attacks, this stage should lead to a great delay.

The main fear in situations with a large number of crimes and suspects is that impunity will occur due to the statute of limitations.

In the current investigation phase, this statute of limitations is calculated based on the maximum penalty for the crimes.

In the STF decision, Moraes indicated the possible practice of crimes of criminal association, attempted violent abolition of the democratic rule of law, coup d’état, incitement to crime, threat and damage to public property, in addition to crimes provided for in the Anti-Terrorism Law.

The crime of threat provided for in Article 147 of the Penal Code, for example, carries a maximum penalty of six months in prison. As a rule of law, the fact that this punishment is less than one year causes the limitation period to be three years.

The crime of damage to public property carries a maximum penalty of three years in prison, and the statute of limitations is eight years.

According to the law, the running of the statute of limitations is interrupted when the Public Prosecutor’s Office files a criminal complaint against the suspects.

In this way, finalizing the investigations to hand them over to the prosecutors is the priority of the police authorities in the coming weeks.

After the Public Prosecutor’s Office presents the complaints, the speed of the cases will depend on where the processes will take place.

For Gustavo Badaró, professor of criminal procedural law at the Faculty of Law of USP, the processes should proceed more quickly if they are not concentrated in the STF, which can happen if the Supreme Court makes a broader interpretation of what the court’s rules say .

The text gives the court the competence to take care of investigations against attacks on the headquarters of the STF, but not for the lawsuit.

In that case, says Badaró, the ministers of the STF could only judge eventual cases of authorities with special jurisdiction.

The PGR (Attorney General of the Republic) asked and the STF accepted that former President Jair Bolsonaro (PL) also be included in the investigation that investigates the instigation and intellectual authorship of the coup attacks.

In relation to the governor removed from the DF, Ibaneis Rocha (MDB), the attribution to judge state heads of Executive is the STJ (Superior Court of Justice).

For lawsuits against the former Security Secretary of the Federal District Anderson Torres and participants in the invasions, Badaró says that the judgment must be made by the Federal Court in the Federal District.

Currently, this sector of the Judiciary in the DF has only 27 courts, which may have a titular judge and a substitute.

Lawyer Marina Coelho Araújo, advisor to the IASP (São Paulo Lawyers Institute), understands that the case may be split to speed up the judgments.

According to the criminalist, this is the strategy that has been used in recent decades in large police operations.

The method is to open a “mother survey” and then divide it into several smaller ones.

Separation can occur by groups of facts and people, says Coelho. One of the processes may deal with the depredation of the STF, another of the group that was in the plenary of Congress, exemplifies the lawyer.

The professor at FGV Direito-SP and coordinator of the Supremo em Pauta project, Rubens Glezer, says that, due to the political weight of the attacks, the best alternative would be to concentrate the judgment of the actions in the STF.

If this is the path adopted, the court may have its impartiality criticized, for being a victim of attacks and also a judge, he assesses.

In the event that the judgment is concentrated in the STF, there will be a need to create an extraordinary strategy for the procedure, as occurred in the case of the monthly allowance.

In 2009, the STF determined that the presentation of some types of appeal did not cause the interruption of the progress of the cause regarding the scandal, for example. At the beginning of that year, the main difficulty was to provide the depositions of 641 defense witnesses.

Regarding the speed of the processes, Glezer says that the reality of the court today is different, because, after taking care of the monthly allowance and Lava Jato cases, the court accumulated experience in the processing of large criminal cases with dozens of defendants.

Senior professor at USP (University of São Paulo) and specialist in issues of the justice system, political scientist Maria Tereza Sadek adds that both in the monthly allowance and in Lava Jato, the cases began in the first instance and gained the attention of the authorities over the course of of time.

Now, from now on, there is a joint effort between the Federal Police, the Public Ministry and the Judiciary in the face of the unprecedented threat to democratic institutions.

For the researcher, this political component does not allow a direct comparison with other cases and should lead to faster accountability.