STF measures against 8/1 defendants break constitutional guarantees

Throughout 2023, the People’s Gazette spoke about the various reasons why the treatment given by the Federal Supreme Court (STF) to the January 8th defendants violates rights guaranteed by the Constitution. On this day when violent attacks on buildings belonging to the Three Powers complete one year, remember some of the reasons why the remedy that the Judiciary claims to use to reestablish democracy is ruining the Rule of Law in Brazil.

Conduct was not individualized

The lack of individualization of the protesters’ conduct is a problem that permeates the entire process, from the arrest to the trial of the 8/1 defendants.

As highlighted by the September editorial of People’s Gazette, “the individualization of conduct is a basic principle of Criminal Law: it means that a person can only be accused and judged for the specific crimes that they have committed, which need to be properly described in the complaint.” The Attorney General’s Office and the Federal Supreme Court have neglected this principle.

Responsible for the prosecution in the trial of some invaders of the offices of the Three Powers, the deputy attorney general of the Republic, Carlos Frederico Santos, stated: “The Federal Public Ministry does not have to describe the conduct of each of the executors of the criminal act, but the result of the acts carried out by the mob, it is not necessary to describe who broke a door, who damaged a window, or who damaged a work of art”.

The thesis of collective guilt was replicated by Alexandre de Moraes, rapporteur of the case, for whom “these crimes are multitudinous, and in crimes of this nature the detailed individualization of conduct encounters insurmountable barriers, due to the collective characteristic of the conduct itself”.

The “sham” arrests carried out after the attacks, without individualizing conduct, are another serious abuse in this sense. In the case of the January 9 arrests at the Army Headquarters, several prisoners claim that the police informed them that they would board the bus to be released later.

Some of them were detained for months, with unjustified delays in custody hearings. In these hearings, in addition, judges were prevented from deciding on the possibility of releasing people – which is also unconstitutional.

And, as already reported by People’s Gazette on several occasions, violations of the human rights of some of the prisoners were clear.

Principle of burden of proof was ignored

Some of the defendants were convicted without there being proof that they had vandalized public property. Due to legal juggling by the Supreme Court, the principle of the burden of proof was left aside, as reported in September by former prosecutor Deltan Dallagnol, columnist for People’s Gazette.

“A principle of democratic criminal law is that the burden of proving the crime rests on whoever makes the accusation. However, the STF used, in these cases, the innovative thesis that when there are crimes committed by crowds, ‘multitudinous crimes’, such as In fan fights, it is not necessary to individualize each person’s conduct. Given the evidentiary difficulties, an exception would be made to the principle of the burden of proof, in order to guarantee justice,” he explained.

But, in the case of January 8, everything is recorded, as Dallagnol highlighted. “The proof is laborious, but possible. The images could be used to identify, individual by individual, what the behavior was. What is not possible is to sentence people to 17 years in prison without at least an effort seriously to individualize conduct and evidence”, he said.

STF does not have jurisdiction to judge 8/1 prisoners

Lawyers for January 8th defendants have questioned the fact that the trials are being conducted directly by the STF – the last instance, where there is no way to appeal possible convictions. The defenses point out that the defendants do not have privileged jurisdiction and that they should be tried in the first instance.

A People’s Gazetteconstitutional lawyer André Marsiglia, specialized in freedom of expression and press and member of the Press Freedom Commission of the OAB-SP, explained in September that the STF’s original jurisdiction, described in article 102 of the Federal Constitution, does not foresee the possibility trial of the defendants in question by the Supreme Court.

“It is alleged connection with the investigation of defendants with prerogative of [foro privilegiado], but in the complaint there is nothing convincing that demonstrates a connection between the facts and the people. It’s a mistake, and a serious one, as the jurisdiction rule cannot be interpreted subjectively precisely because it serves to avoid exceptional courts”, he says.

Scam attribution cannot be generic

For some of the defendants who have already been convicted, there is not even evidence that they knew there would be an invasion of the buildings of the Three Powers. To attribute to the defendants crimes such as attempted coup d’état and violent abolition of the Democratic Rule of Law, concrete evidence would be needed that there was a plan and that they had participated in that plan.

As Minister André Mendonça stated in one of the trials, “a coup d’état demands acts not only of removal from power, but of the establishment of a new institutional political order”. “The prospect of their action was to create a situation of institutional instability, but any coup d’état action would depend on the action of other forces,” he said.

Retired judge Sebastião Coelho, lawyer for one of the 8/1 defendants, questioned during the case’s first trial the lack of adequate instruments to put a coup into practice. “Did anyone bring a rifle to Brasília? In those people who were there on January 8th, there was none. Was there an impediment to the functioning of the powers? Which power stopped functioning due to the action that took place in this building and other buildings?”, asked Coelho to ministers.

Minister Nunes Marques recalled that there was no element, “however small, of any act of violence or serious threat against any political agent, representatives of one of the powers of the Republic, not even civil servants”. “The truth is that the depredation of the buildings that are the headquarters of the Republic’s powers at no point threatened the authority of the dignitaries of each of the powers, nor the Democratic Rule of Law”, he stated in his vote during one of the trials.