there are no requirements for Moraes to arrest Bolsonaro now

The pressure or desire on the part of society, the press and the left to arrest former President Jair Bolsonaro (PL) due to the jewelry case are not grounds for such a drastic measure. And this scenario should require caution from Minister Alexandre de Moraes. On the contrary, it is expected that he will only examine whether the facts proven so far fit the requirements provided by law, and in the most recent understandings of the Federal Supreme Court (STF), to decree a possible preventive detention.

This is the view of two criminal experts consulted by the People’s Gazette to find out if there is a basis, today, for an arrest of Bolsonaro. And for both, the answer is no.

For the attorney, ex-deputy and professor Fernando Capez, none of the conditions for preventive detention are present, based on what is known so far. “Is there any risk at this time for public order, the production of evidence and the application of criminal law? No,” he says.

For similar reasons, lawyer and professor Davi Tangerino says he does not believe in preventive detention in the short term. “There is no contemporary event, in my opinion, that justifies pre-trial detention. As long as there is no evidence that he is destroying evidence, coercing witnesses or that he is going to flee, I do not see the elements present for the measure”.

Since last week, speculation has grown about Bolsonaro’s eventual arrest after the Federal Police carried out an operation against General Mauro Lourena Cid, father of former aide-de-camp Mauro Cid; and lawyer Frederick Wassef. The investigation, conducted by Alexandre de Moraes, proved with photos and cell phone messages that Lourena Cid offered and sold gifts received by Bolsonaro in the Presidency in the United States, while Wassef bought him a Rolex to return it to public property.

For the PF and Minister Alexandre de Moraes, there are indications of crimes of embezzlement (embezzlement of public assets) and money laundering (by trying to hide transactions with cash and deposits in an account abroad). Bolsonaro’s defense, however, maintains that the jewels could be sold because they were private, as they were “very personal” items.

Even if Bolsonaro’s order was proven to sell the gifts and receive the money, and the items were considered public property, preventive detention would not be justified. The law and the recent jurisprudence of the STF require that, for its enactment, there is a concrete risk that, if released, Bolsonaro could commit new crimes, disrupt the investigation or flee the country. A decision in this sense, therefore, must demonstrate recent acts that point to one or more of these alleged attempts.

“The decision to enact preventive detention must be grounded and motivated by the concrete existence of new and contemporary facts that justify the application of the measure adopted”, says article 312 of the Code of Criminal Procedure, in a wording approved in 2019, within the scope of the so-called anti-crime package. So far, nothing indicates this, in the opinion of jurists.

If the investigation verifies that Bolsonaro is trying something like that, Alexandre de Moraes would still have to demonstrate that other alternative measures (electronic monitoring, blocking of assets, prohibition of contact with other investigated persons, for example) would not be sufficient to prevent damage to public order , the collection of evidence and eventual punishment.

“Pretrial detention will only be determined when it is not appropriate to replace it with another precautionary measure, observing article 319 of this Code and the non-appropriation of replacing it with another precautionary measure must be justified based on the elements provided for in the specific case, in a way that individualized”, says article 282 of the CPP, with the new wording approved in 2019 in the anti-crime package.

For prosecutor, alternative measures must be evaluated before arrest

In the recent period, some preventive arrests decreed by Alexandre de Moraes drew the attention of the legal community, for not demonstrating the need in a concrete way, thus failing to strictly meet the requirements of criminal law.

The most emblematic case was the arrest of former director of the Federal Highway Police Silvinei Vasques, suspected of making it difficult, through increased road inspection, for PT voters to travel in the Northeast region, in the second round of the 2022 elections. The minister decided to arrest him because he considered that his former subordinates in the PRF could combine versions in testimonies out of “reverential fear” of Vasques. To prove this, he stated that two former police officers “apparently missed the truth”, “indicating the presence of reverential fear in relation to the person of Silvinei Vasques, proving that, in freedom, he would have the power to influence the testimony of any witnesses” .

The same logic could apply to Bolsonaro, since, as a former president, he could also have influence over several close and trusted former aides he kept in office. But for Capez and Tangerino, an arrest warrant cannot be based on assumptions or conjectures of the sort. “If we were to launch that order of conjecture, you would find a reason to arrest everybody. It’s very subjective,” says Tangerino.

“There is no preventive detention based on fear, based on possibility. Pretrial detention must be decreed in the light of concrete and proven facts. Therefore, it is necessary to prove that there was some concrete and effective action. To embarrass and influence, seduce or ask for something as a witness”, says Capez, noting that Vasques is already retired and no longer has power over his former subordinates. Even if he were in office, it would be possible for Moraes, instead of being arrested, to order his removal from office. The same reasoning applies to Bolsonaro, who has already left the Presidency and no longer has power over Mauro Cid.

For some observers, there would be scope for Moraes to decree a preventive detention if the information obtained in the breach of bank secrecy by Bolsonaro and former first lady Michelle – authorized this week by the minister – pointed to suspicious transactions, mainly with remittances of amounts to the outside. In that case, the PF could raise the suspicion that he was trying to hide the money for an eventual crime. A possible criminal repetition would be configured, such as money laundering, for example, and, therefore, a concrete risk to public order.

Even so, in this hypothetical case, Capez understands that an alternative measure would be possible, which the law requires to apply, such as the blocking of assets and bank accounts. This would ensure that, in the event of a conviction, the money would be returned to public coffers. “It is much more efficient than decreeing preventive detention. And the judge is obliged to seek this alternative before arrest, which is the last measure, the last ratio”, says the prosecutor.

For Bolsonaro’s defense, there was no crime

Another question arises before the decree of preventive detention: the demonstration of the probability of success of an eventual accusation. In Bolsonaro’s case, the question arises as to whether there really was crime in the sale of watches in the United States. This is because the legislation is not clear as to the nature of this type of gift received from foreign authorities.

In 2016, the Federal Court of Auditors (TCU), when inspecting the gifts received by President Luiz Inácio Lula da Silva (PT) in his first two terms, decided that “very personal” items could be incorporated into the private assets of the head of state . This would apply to clothing items such as T-shirts and hats and perishables such as perfume and wine. There is nothing in the decision about valuable watches. At the time, the body recommended that Congress approve a law detailing what kind of gift would be incorporated into public assets and which could remain in the personal collection of the President of the Republic.

In 2018, an ordinance of the General Secretariat of the Presidency of the Republic, which provides for the policy for the management of historical and artistic assets, defined that jewels, semijoias and bijoux were goods “of a very personal nature or for direct consumption by the recipient”. Thus, they could, according to the TCU’s guidance, be taken by the president in a private way.

Bolsonaro’s lawyer in the case, Paulo da Cunha Bueno, says Bolsonaro’s watch fell into that category. “Once cataloged as belonging to the private collection, these assets could be disposed of […] Whether it was Bolsonaro or any adviser who had made this sale at his behest, the legal repercussions would be the same: the asset can be sold, as it remains in his private collection even for inheritance,” he said in an interview with GloboNews.

Bolsonaro himself was asked this Friday (18) about the subject and said that there was a “vacuum” in the rules on the public or private nature of gifts received in the Presidency, especially from 2022, and suggested that, in doubt, the Justice should benefit him, considering him innocent on suspicion of appropriating jewelry he received from Saudi Arabia.

In 2021, an ordinance of his government revoked the 2018 ordinance. For the former president, all gifts received in 2021 would be covered by the previous norm. As for those received later, in 2022, there would be a doubt. “It has to be based on what is written. Until 2021, all right? As of 2022, it is not defined what is very personal. Doesn’t mean it is or isn’t. A clock, for example… It is not defined”. Asked if this assessment should remain with the Justice, Bolsonaro replied: “It remains in the air. And when in doubt, you have to check the side, is that right?”, he said, in an interview with the newspaper The State of S. Paulo.

Capez states that this issue should be discussed throughout the process, and as the investigation progresses.

“We are not talking about an act of corruption, the embezzlement of public money. We are talking about a gift of high value, which, within an ethical concept, should have been transferred to the property of the Union. But there is no law saying that expensive gifts are property of the Union, there is an interpretation made by the Court of Accounts of the Union. We know that there is no crime without a previous law that defines it, and embezzlement, as embezzlement, is the crime of the public official taking possession of a public good that he has in possession due to his position, or diverting it for his own benefit or alien. For you to divert this good, it has to be owned by the Union. It is necessary to discuss whether an interpretation of the TCU makes the good property of the Union or if it just creates an ethical duty”, says the attorney.

In the investigation into the case, conducted by Minister Alexandre de Moraes, of the Federal Supreme Court (STF), the Federal Police (PF) imputes to Bolsonaro the suspicion of embezzlement and money laundering, considering, in advance, that the jewelry should necessarily be incorporated into public property.