What happens if the Federal Police refuses to comply with a STF order?

Operation Citizen Constitution, by the Federal Police (PF), arrested Silvinei Vasques, the former general director of the Federal Highway Police (PRF), in Florianópolis, following an order issued by the Federal Supreme Court (STF). He is accused of having carried out road operations with the aim of making it difficult for voters to travel on October 30, 2022, mainly in the Northeast region of the country.

This is not the first time in recent months that a public security agent has been detained by colleagues on account of Supreme Court inquiries. Former Minister of Justice Anderson Torres, Colonel Jorge Eduardo Naime Barreto and Lieutenant Colonel Mauro Cid were also arrested recently as part of these investigations.

In these and other cases, jurists have questioned the legality of arrests and search and seizure warrants executed by the Federal Police at the behest of the STF.

This is what happened, for example, after the search and seizure in the Rome airport case involving Minister Alexandre de Moraes. The measure, ordered by the STF, was considered by jurists to be flagrantly unconstitutional on several levels. Still, police officers promptly obeyed the warrant.

On social networks, users frequently accuse the PF of cowardice and “peleguismo”. “The Federal Police, headed by Lula’s close friend, is used for persecution”, said this Wednesday (9) Senator Flávio Bolsonaro (PL-RJ) via Twitter. “Who are the Federal Police agents who work as henchmen for Alexandre de Moraes and Flávio Dino?”, asked a user recently.

In a normal situation, members of the Federal Police would hardly be arrested for disobedience

If a police officer or a group of police officers decided not to obey an order that they considered illegal, they could be held criminally liable for disobedience, prevarication or insubordination, but, in a normal state of affairs, being a first offender, they would hardly be arrested.

However, as explained by jurists consulted by the People’s Gazettethe legal uncertainty brought about by decisions of the STF in the country – especially in judgments of investigations that investigate alleged crimes against the Court – makes the answer to the question that gives title to this report more complicated.

At first, according to criminal lawyer João Rezende, there would be consequences in the criminal and administrative spheres, but in no case would this result in imprisonment if it was a first-time offender.

“The consequence in the criminal scope would be the commission of the crime of disobedience, of article 330 of the Penal Code [com pena de no máximo seis meses], which consists of disobeying the legal order of a public official – in this case, the STF minister himself. At the administrative level, the civil servant would be committing an ethical-administrative infraction and would be held responsible by the Federal Police internal affairs department, suffering an administrative disciplinary process, for committing a disciplinary infraction”, explains Rezende.

Jurist Fabricio Rebelo, coordinator of the Center for Research in Law and Security (Cepedes), observes that “the crimes in which the conduct can be classified – resistance, disobedience or contempt – all have maximum sentences of less than four years, which would oblige the granting of provisional release, that is, there would be no way to enact a preventive detention”. “The individual could be arrested, but would respond in freedom”, he says.

Dário Jr., PhD in Procedural Law from the PUC of Minas Gerais, says that the police could also be framed in the crime of prevarication, which consists of “delaying or failing to practice” an official act. Also in this case, the penalty would be light: a maximum of one year in prison.

Jurists point out that the scenario changes, however, in the current context of the country, in which there is a mark of unpredictability in the decisions of the Supreme Court.

Dário Jr. speculates that, “if this eventual non-compliance decision is from the STF, in the current situation, fatally [o policial] would be arrested”.

But what if other police officers decided not to comply with the order to arrest the disobedient server? In this case, for jurists, from a technical point of view, their conduct should be individualized. In the current situation, however, it would not be strange that this opens up room for creative judicial decisions that collectivize the crime.

“I have no doubt that they were framed as a crime against the democratic rule of law and registered as terrorists”, says Dário Jr.

For Rebelo, technically, “it would only be a crime committed by several agents”, with “co-authorship or participation”, since “offenses of criminal organization and association presuppose a previous bond for the purpose of committing crimes, which would not apply to the refusal compliance with a specific court order”.

“However, as we are in Brazil, in a scenario where penal provisions are increasingly volatile, it would not be surprising to have a framework of this nature [como organização criminosa]”, he states.