STF uses testimonies and videos as evidence for coup on 8/1 – 09/24/2023 – Power

Statements from police officers, video speeches by the accused himself, the context of camps in front of barracks since the elections and messages calling for the acts of January 8th on social networks condensed in intelligence reports were considered as evidence by the STF that on that date the crimes of coup d’état and abolition of the democratic rule of law would have occurred.

Provided for in the Penal Code, both crimes are already configured as attempts. Minister Alexandre de Moraes even joked that the trial of the 8/1 defendants would not be taking place if these attempts had been completed.

One of the crimes talks about “trying to abolish the democratic rule of law”, preventing or restricting the exercise of constitutional powers, and the other about trying to depose “the legitimately constituted government”.

Both require that violence or serious threats have been used in the action.

When voting to sentence Aécio Lúcio Costa Pereira to 17 years in prison, Moraes, who is the rapporteur of the action, listed elements that there was an invasion and use of violence in the buildings of the three Powers.

Furthermore, he pointed out that Pereira was there with this objective and that the purpose of the act would be both institutional rupture and the deposition of the elected government.

“The defendant himself says that he was part of the group Os Patriotas and came from Diadema, where he lives, in the state of São Paulo, to carry out these acts”, stated the minister when voting. He refuted critics’ arguments that a coup would not be carried out over a weekend.

“Let’s not be naive and think that the protesters did it on a Sunday because there was no one in the buildings”, said Moraes at a certain point during the vote.

“They did it on a Sunday because the idea was to make the exercise of the Powers unfeasible and so that, with that first regrettable adhesion that there was on the part of the Military Police officers, the police would not remove them and that, if there was a need and the Army was summoned, they would try to convince the Army to join the coup d’état”, he added.

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CRIMES AGAINST THE DEMOCRATIC STATE IN THE 8/1 CONDEMNATION

Violent abolition of the democratic rule of law: When someone attempts, with the use of violence or serious threat, to prevent or restrict the exercise of the three Powers. Penalty of 4 to 8 years in prison.

Coup d’etat: It is the attempt to depose, through violence or serious threat, the legitimately constituted government. Penalty of 4 to 12 years in prison.

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Testimonies from four witnesses (police officers who acted on January 8th) are used as evidence that the members of the invasions announced their intention to depose the government, with speeches described as pejorative towards President Lula (PT), expressing irresignation regarding the result of the 2022 elections and calling for military intervention.

Messages released before January 8 are also considered as proof that those present at the events had prior knowledge of the purpose of the events.

In his vote, Moraes also uses elements of the federal intervention report – which was decreed by Lula and approved by Congress after the attacks in Brasília – and its annexes.

He cites an intelligence report that warned of the possibility of invasion and occupation of public bodies, highlighting the mention in the document of the call for caravans to Brasília, saying it was “the seizure of power by the people themselves”.

Also cited as context are the acts in front of barracks calling for action by the Armed Forces against the election results installed since November of the previous year, the acts of vandalism on December 12 of the previous year and the attempted explosion of an artifact, both in federal District.

The backdrop for the justification of a coup, said Moraes, were the accusations of “alleged electoral fraud and the arbitrary exercise of the constituted Powers”.

In Pereira’s case, videos recorded by himself are also considered as evidence, in addition to the fact that the t-shirt he was wearing on the date said “federal military intervention”. In one of the recordings, Pereira says that he does not accept the elected government and encourages people to ask for “SOS Forças Armadas”.

“As a representative of the people, I am here to say that I do not accept this fraudulent government as our representative,” he said into the microphone on the Senate floor. “We are not going to let communism enter. People, get out on the streets. Support us. Get out in the barracks, get out now. Stay in the streets and ask for SOS Armed Forces.”

The PF report, based on data extracted from Pereira’s cell phone, is cited as another element that proves his access to Praça dos Três Poderes and the National Congress.

Despite Moraes’ vote, the understanding was not unanimous. André Mendonça, who was appointed to the position by former president Jair Bolsonaro (PL), understood that there was no crime of coup d’état during the coup attacks, which led to a discussion between the ministers.

He argued that, for a coup, a legal and institutional order would have to be established: “Any coup action would depend on action by other forces, basically the military”, said Mendonça. The majority of the court disagreed.

Experts consulted by Sheet have different views.

For Diego Nunes, professor of history of criminal law at UFSC (Federal University of SC), the evidence presented, such as the context of the organization of the camps in the barracks and the publicity material for the acts, are sufficient to establish that there was an attempt to blow.

He considers that the fact that the military did not join does not rule out the characterization.

From what she has knowledge of the case, criminal lawyer Marina Coelho Araújo assesses that the evidence is not sufficient to prove the attempted coup d’état, at least with regard to the first defendants tried, but rather with regard to the crime of abolition of the democratic state right.

For Marina, elements such as posts calling for acts, but which did not explicitly call for violent acts, and the use of a t-shirt saying military intervention, for example, do not prove that there was an attempted coup.

Lenio Streck, who is a professor and lawyer, says that there is sufficient evidence that both crimes took place, including the coup d’état. He considers it wrong to say that the acts would not be suitable for a coup. “If they were reputable, they would have managed the coup. The crime is an attempt. Trying is already consummation”, he states.

In the assessment of constitutional lawyer Vera Chemim, considering the circumstances defined by the STF, when judging the agents, the crime of abolition of the democratic rule of law was established, as it was proven that the intention of those who were there was to provoke a military intervention.

On the other hand, she does not see evidence of the crime of a coup d’état, because she understands that those people did not have weapons capable of effectively enabling a seizure of power.