TSE can make Bolsonaro ineligible; arrest is unlikely – 01/24/2023 – Power

Investigated by the Federal Police on suspicion of being the mastermind behind the coup attacks on January 8 in Brasília, former president Jair Bolsonaro (PL) faces the main risk of accountability at the TSE (Superior Electoral Court) so far.

Legal experts heard by Sheet point out that the former president may respond in the criminal, civil and administrative spheres if evidence of direct involvement in the episode arises.

In the electoral sphere, there are 16 lawsuits pending against Bolsonaro. The most advanced was presented by the PDT after a meeting of the then president with ambassadors, in July last year, in which he attacked the electoral system.

At the request of the acronym, on the 16th of this month, the electoral inspector general, Minister Benedito Gonçalves, included in the process the draft of a decree for Bolsonaro to establish a state of defense in the TSE and reverse the result of the elections.

The existence of the document, found in the home of former Minister of Justice Anderson Torres, was revealed by Sheet.

Gonçalves said that there is “an unequivocal correlation between the facts and new documents” with the narrative presented by Bolsonaro at the meeting that motivated the action.

According to the minister, the then president’s speech “did not only target the ambassadors, as it was part of the campaign strategy of “mobilizing their bases” through knowingly false facts about the voting system.”

As shown to Sheet, this is the most advanced process against Bolsonaro in court and the tendency is for it to be the first to be judged. A hearing with the testimony of Senator Ciro Nogueira (PP-PI), who was Minister of the Civil House, is scheduled for February 8th.

The pace of judgment of actions is defined by the magistrate and the president of the TSE, Alexandre de Moraes.

According to allies, both are willing to speed up the procedure until June, before Minister Ricardo Lewandowski retires and Kassio Nunes Marques enters the electoral court.

If the court decides that there was abuse in the episode, Bolsonaro could be ineligible for eight years, which means that the former president will not be able to run.

For the general coordinator of Abradep (Brazilian Academy of Electoral and Public Law), lawyer Luiz Fernando Pereira, the inclusion of the new evidence increases this possibility.

Electoral lawyer Aberto Rollo disagrees. For him, the relevance of the decree to the process is reduced and jeopardizes the progress of the action, as it requires more investigation.

Rollo considers that Bolsonaro may become ineligible from other actions. He cites the processes that deal with the lives at the Palácio do Planalto during the campaign and the release of financial benefits during the electoral period, which can characterize vote buying.

Lawyer and professor of electoral and digital law at Mackenzie University, Diogo Rais agrees that the draft will require new evidence, but considers that given the relevance of the document, the minister’s decision to include it in the process was right.

He also says that the action already contains all the elements that could lead to Bolsonaro’s ineligibility, such as the videos demonstrating the authorship of the statements.

“There is a high risk that Bolsonaro will be ineligible as a result of the actions of the Electoral Justice, especially in relation to the meeting with the ambassadors, since the case law of the TSE has been quite harsh in relation to actions of the kind. accompanied by other tests, can reinforce this role”, he says.

For Pereira (Abradep) the performance of Minister Benedito Gonçalves has signaled that the actions must be judged quickly, as foreseen in the electoral legislation, contrary to what happened with the ticket of Dilma Rousseff (PT) and Michel Temer (MDB), defined more two and a half years after the end of the election.

In the criminal sphere, criminalists say that there has not yet been enough evidence to arrest or convict Bolsonaro for the attacks.

Moraes, minister of the STF (Supreme Federal Court), responded to the request of the PGR (Attorney General of the Republic) and on the 13th included Bolsonaro as being investigated on suspicion of inciting the acts.

The request was made after a request from 80 members of the Federal Public Ministry to the Attorney General of the Republic, Augusto Aras, due to a video published —and later deleted— by Bolsonaro on Facebook on January 10 in which a man questioned the legitimacy of Lula’s election.

“When the remission of the coup attempt was that the polls were rigged and that Lula could not have been a candidate and the leader of these people comes the next day and says: ‘Lula was not elected by the people’, it is a signal for them to continue doing what they were doing”, says Davi Tangerino, professor of law at Uerj (State University of Rio de Janeiro)

Professor of criminal law at USP Helena Lobo says that video is an element for investigation, but that both the context and the repercussion are fundamental for accountability.

Diogo Rais adds that the responsibility for the published content lies with the owner of the profile, even if he was not the author of the post. Exceptions are cases of account takeover or if the posting is proven to have been made against one’s will. In that situation, liability could be mitigated.

Professor at FGV Direito do Rio Wallace Corbo considered the framework requested by the PGR modest in view of the evidence against the former president, such as the draft found in Torres’ house.

“Once again, the PGR has a conduct far below expectations, because instead of investigating President Jair Bolsonaro for his possible involvement in the acts, it limited itself to investigating something very specific, a small cut of a much larger picture involving the former president. president,” he says.

Lawyer Tatiana Stoco, professor of criminal law at Insper, considers that the fact that Bolsonaro had his speeches repeated by coup supporters who attacked the three Powers is not enough to criminalize him in the criminal sphere.

“Everything that Bolsonaro has done, although it gives this feeling that people are based on this to act, from a criminal point of view, there is not much outlet for accountability.”

By the end of the term, there were five proceedings against Bolsonaro in the Supreme Court, all under the rapporteurship of Moraes, who is responsible for defining the fate of these investigations after the loss of jurisdiction when he left the Presidency. Bolsonaro was not denounced during his term, which could only be done by Aras.

Eventual evidence of Bolsonaro’s involvement in the attacks also generate accountability for the damage caused in the civil sphere. In the administrative area, he can answer for improbity if proven that he contributed to the acts while still in office, says public law professor at USP’s Faculty of Law, Floriano Peixoto.

In this case, he points out that cases of impropriety are the responsibility of the Federal Court of Brasilia. This means that prosecutors from the Federal Public Ministry of the Federal District can also open inquiries to investigate whether Bolsonaro committed such an irregularity.