Minister Alexandre de Moraes, of the Federal Supreme Court (STF), voted this Friday (7) to reject a last appeal by former president Jair Bolsonaro against his sentence to 27 years and three months in prison for crimes against democracy. 
Moraes also voted to reject the appeals of six other defendants in the case. The group is made up of Bolsonaro’s allies who made up the so-called “crucial nucleus” of the coup plot, or nucleus 1, according to the division made by the Attorney General’s Office (PGR).
The judgment of these appeals is the last stage that separates those convicted from a possible order to serve their sentence. As he was the rapporteur, Moraes voted first, at 11am this Friday. The other ministers of the First Panel – Cristiano Zanin, Flávio Dino and Cármen Lúcia – have until 11:59 pm on November 14th to vote.
Minister Luiz Fux, the only one to warn of the acquittal of Bolsonaro and other accused in the crucial group, does not participate in the judgment of the appeals. In October, the magistrate moved from the First to the Second Panel of the Supreme Court, occupying a vacancy opened with the retirement of minister Luís Roberto Barroso.
When announcing the exchange, Fux said that he would like to continue participating in Bolsonaro’s trial, but the minister ended up not formalizing any request in this regard. The Supreme Court confirmed that, in this case, the Internal Regulations prevail, which do not provide for the participation of the minister of one class in the judgment of the other.
The appeals at trial are motions for clarification, which serve to clarify any contradiction or omission in the final text of the conviction. In theory, even if accepted, this type of appeal would not be able to change the outcome of the trial.
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Vote
In his vote, Moraes stated that Bolsonaro’s appeal did not, in fact, present contradictions, ambiguities or obscurity in the conviction, and that the embargoes represented “mere non-conformity with the outcome of the trial”.
The minister once again rejected questions linked to his suspicion in judging the case and also the restriction of defense. Moraes highlighted that both issues have already been “thoroughly analyzed” throughout the trial.
The minister also denied the defense’s attempt to unlink Bolsonaro from the anti-democratic attacks on January 8, when his supporters invaded and vandalized the headquarters of the Three Powers, in Brasília.
“Unlike what is alleged by the Defense of Jair Messias Bolsonaro, there is no contradiction in the condemnatory ruling regarding the criminal practice of the defendant in the illicit acts that occurred on 1/8/2023”.
Bolsonaro’s defense had also asked for the recalculation of his sentence, arguing that, even though he carried out preparatory acts for the coup, he gave up on the coup attempt before completing it.
The lawyers evoked the principle of voluntary withdrawal, provided for in the Penal Code. According to this principle, the convicted person is only responsible for the acts carried out up to the moment in which he gave up committing the crime.
At this point, Moraes stated that the conviction “was based on the analysis of the conduct alleged in the complaint and proven during the procedural investigation, so that it was demonstrated that there was no voluntary withdrawal in relation to the crimes for which he was convicted”.
Prison
If the rejection of the appeals is confirmed by the First Panel, the arrest of Bolsonaro and the other accused could be ordered.
There is still no definition of the possible place where the former president can serve the definitive sentence in the coup criminal case. Due to the size of his sentence, the legislation provides for the initial closed regime, in a maximum security prison unit, such as the Papuda prison, in Brasília.
According to jurisprudence, Bolsonaro could also stay in a General Staff room, as he is a former president. It is a special facility, separate from other prisoners, which could be installed, for example, on the premises of the Federal Police (PF), as happened when President Luiz Inácio Lula da Silva was imprisoned in Curitiba.
Another hypothesis is that Bolsonaro serves time at home. The measure is an exception and can only be granted for humanitarian reasons, if the convict has an illness that is not capable of being treated in prison.
This is what happened to former president Fernando Collor, who in May this year was granted house arrest because he had Parkinson’s disease and was over 75 years old.
Bolsonaro is currently under house arrest due to the investigation in which he is being investigated for allegedly trying to coerce the Supreme Court into dismissing his case. The case is related to licensed deputy Eduardo Bolsonaro (PL-SP) and the United States’ tariffs against Brazil, as well as White House sanctions against Supreme Court ministers and the Attorney General of the Republic, Paulo Gonet.
When decreeing the precautionary measure, Moraes cited the former president’s “founded risk of flight.”
The other convicts are military personnel and Federal Police delegates and will be able to serve their sentences in Armed Forces barracks or in special wings in Papuda itself.
Check the penalties defined for those convicted
– Jair Bolsonaro – former President of the Republic: 27 years and three months;
– Walter Braga Netto – former Bolsonaro minister and candidate for vice president on the 2022 ticket: 26 years old;
– Almir Garnier – former Navy commander: 24 years old;
– Anderson Torres – former Minister of Justice and former Secretary of Security of the Federal District: 24 years;
– Augusto Heleno – former minister of the Institutional Security Office (GSI): 21 years old;
– Paulo Sérgio Nogueira – former Minister of Defense: 19 years;
– Alexandre Ramagem – former director of the Brazilian Intelligence Agency (Abin): 16 years, one month and 15 days.
Ramagem was only convicted of the crimes of armed criminal organization, attempted violent abolition of the Democratic Rule of Law and coup d’état.
He is a federal deputy and had part of the charges suspended. The measure applies to crimes of damage qualified by violence and serious threat against the Union’s property, and with considerable damage to the victim and deterioration of listed property, both related to the coup acts of January 8th.
Mauro Cid, Bolsonaro’s former aide-de-camp, signed a plea bargain during the investigations and did not appeal the conviction. He is already serving his sentence in an open regime and has removed his electronic ankle bracelet.
