Swearing at Moraes in Italy makes punishment unfeasible in Brazil

The insults directed at Minister Alexandre de Moraes and his family members by a group of Brazilians at the airport in Rome, last Friday (14), carry a low penalty, which makes it impossible for them to be prosecuted in Brazilian courts, if the applicable legislation to the episode is strictly followed. This is the opinion of criminal experts consulted by the People’s Gazette.

The punishment of those involved in Brazil would only be legally plausible if the conduct of Moraes’ alleged aggressors were framed as a crime against the democratic rule of law – this is the framework defended by the Minister of Justice and Public Security, Flávio Dino. In that case, the penalties would be much higher, but that would be an exaggeration, given the circumstances of the episode so far known, according to the experts heard by the report.

As far as he knows, Moraes would have been called a “bandit”, “communist” and “bought” by Brazilians who left for Brazil. According to the representation sent by the minister to the Federal Police, his son, Alexandre Barci de Moraes, would have been slapped by one of the alleged aggressors – in this case, businessman Roberto Mantovani.

The businessman and his wife denied in a note that they had offended or threatened Moraes, and suggested that he, aged 71, was the one who had been attacked by the minister’s son.

The investigations were brought to the PF in Brazil on the initiative of Moraes. As a rule, a crime committed abroad is investigated there, but criminal law allows it to be investigated here if the victim or aggressor is Brazilian and arrives in the country. This is the so-called principle of extraterritoriality, provided for in Article 7 of the Penal Code.

For this, it is necessary that, in addition to not having been prosecuted, penalized or forgiven abroad, the crime is also punishable in the country where it was committed and that it is still included among those for which Brazilian law authorizes extradition.

This last rule is necessary for the crime to be prosecuted in Brazil, but, according to the criminal experts consulted, it would not be fulfilled in this case. This is because the suggested crimes – insult, defamation, threat and bodily harm – all carry a maximum penalty of one year.

And Brazilian law says that extraditable crimes, which allow the Brazilian to be punished in the national territory, are those whose penalty in Brazil is greater than two years in prison. This is what the Migration Law (13.445/2017) says, in its article 82, item II, according to which “extradition will not be granted when (…) Brazilian law imposes a prison sentence of less than 2 years on the crime ”.

“If one of the conditions is not present, the Brazilian criminal law cannot be applied. I don’t think it’s inappropriate for there to be an investigation in Brazil, so that the conduct of each person involved is investigated. But if the crime is not subject to extradition, the process is not feasible here”, says criminal lawyer, master and professor of Criminal Law José Nabuco Filho.

“In principle, you can investigate, the point is that criminal prosecution is not feasible if only crimes against honor are configured, such as injury and defamation, according to the Migration Law. But the parties will be able to claim that there were crimes or greater penalties, which would make criminal action possible in Brazil”, adds the doctor in Criminal Law from USP Matheus Falivene.

In a scenario of crimes with lower penalties, therefore, the safest thing would be to prosecute the case in Italy, but this could prove to be innocuous with the presence of all those involved in Brazil.

Dino and Lewandowski argue that there was a crime against the democratic rule of law

The case, however, may change its level, and lead to heavier punishments, if it is considered that the offenses also constitute a crime against the Democratic State of Law. In interviews, the Minister of Justice, Flávio Dino, and the retired Minister of the Federal Supreme Court, Ricardo Lewandowski, defended this punishment.

To this end, they invoked the crime of “violent abolition of the Democratic State of Law”, which consists of “attempting, using violence or serious threat, to abolish the Democratic State of Law, preventing or restricting the exercise of constitutional powers”, and whose sentence varies from 4 to 8 years in prison.

But, for criminalists, it would be an exaggeration to consider that cursing an authority abroad would threaten democracy and the rule of law in Brazil.

“As much as the law has scope, it is not plausible that someone cursing a minister is an attempt to abolish the Democratic State [de Direito]. As abject as conduct may be, it does not configure”, says José Nabuco Filho.

“In theory, personal offense does not attack the democratic state, because it is not harmful enough to do so. On the 8th of January, it was something much bigger. In this specific case, I believe it is not possible”, says Matheus Falivene.

A similar opinion was presented by former deputy Deltan Dallagnol. Through social networks, he criticized the possibility of framing the episode involving the minister as a threat to Brazilian democracy.

“It seems that the 3 people suspected of harassing the minister would overthrow the Brazilian government with a few curses of “communist” and install a provisional government from the airport in Rome, in Italy”, stated Dallagnol.

Investigation

If only crimes with lesser sentences, of one year, are configured, the only way to prosecute those involved in Brazil would be the application of a specific law, the Italian-Brazilian treaty, of 1989, which allows extradition for crimes with a sentence greater than one year. year. The application or not to the case would be another possible discussion to be dealt with by the parties in Brazil.

None of this, however, prevents the investigation, in the opinion not only of lawyers, but also of authorities that follow the case consulted by the report. One of them, who preferred not to be identified, considers that the PF’s communication with the Italian authorities, to obtain images and reports from airport employees, will be facilitated.

This could be done through the Director of the Department of Asset Recovery and International Legal Cooperation (DRCI), an agency of the Ministry of Justice that cooperates with other countries in investigations outside Brazil, or directly, via Interpol, an international organization that brings together police around the world for joint investigations.

The PF in Brazil should request, later this week, that the Italian authorities preserve the airport security recordings, in order to better elucidate what happened.

Within the STF, it is not yet known whether Moraes will take over the investigation, within the fake news inquiry or others that derive from it, for covering “attacks” on the institutions.

Associations of judges demand punishment of suspects for aggression against Moraes

On Sunday (16), the Association of Federal Judges of Brazil (Ajufe) and regional associations of the category expressed “deep repudiation” for the attacks against the Minister of the Federal Supreme Court (STF) Alexandre de Moraes and his family members in Italy.

“In the same way as has already been done in relation to the previous unjustifiable and unacceptable attacks on the Ministers of the Federal Supreme Court, as well as on the seat of the Court, once again the representative associations of the federal judiciary await the effective and exemplary accountability of the authors of the said attack, in accordance with the rules relevant to the case,” reads an excerpt from the note signed by the associations.