Crimes against the Democratic Rule of Law, provided for in the Law 14.197/2021 should not be pardoned for reasons of internal coherence of the Constitution, which states that crimes against the constitutional order and democracy are unbailable and imprescriptible. This is the assessment of Eloísa Machado de Almeida, who holds a PhD in Law from the University of São Paulo (USP).
In an interview with Brazil Agencythe professor at FGV Direito de São Paulo believes that the Supreme Federal Court (STF) should consider the Amnesty Billif it is approved by the National Congress.
THE bill currently being processed by the Constitution and Justice Committee of the Chamber of Deputies pardons those convicted of the acts of January 8, 2023, including the financiers, promoters and organizers. If approved, the law could benefit former President Jair Bolsonaro, who is also investigated in the inquiries that investigate the January 8th.
Professor at FGV Law School in São Paulo, Eloísa Machado de Almeida, believes that the STF should consider the Amnesty Bill unconstitutional – Photo: Personal Archive/Disclosure
“Although there is no express mention of prohibiting this type of amnesty in the Constitution, there is an argument that, due to the internal coherence of the Constitution, such crimes would not be subject to amnesty. This was the understanding of Minister Dias Toffoli [do Supremo Tribunal Federal] when judging the unconstitutionality of granting pardon to former deputy Daniel Silveira”, explains the jurist.
Former congressman Daniel Silveira was sentenced to more than 8 years in prison for attempting to undermine the democratic regime. When overturning the amnesty granted to Daniel Silveira by former president Jair Bolsonaro in 2022, Justice Dias Toffoli stated in his ruling that he did not see “internal coherence in a legal-constitutional system that, in addition to preventing the statute of limitations for crimes against the constitutional order and the democratic rule of law, allows for constitutional pardon for those convicted of such crimes. I ask: what public interest would there be in pardoning someone who was duly convicted of attempting to undermine the very existence of the democratic state, its most precious institutions and institutes?”
The Constitution, in Article 5, states that those convicted of torture, drug trafficking, terrorism and heinous crimes cannot be subject to amnesty. Dias Toffoli argues that “for the internal coherence” of the Constitution, this prohibition should also apply to crimes against the democratic order.
The Amnesty Bill would also be unconstitutional for violating the separation and independence between the Powers, since the National Congress would be invading a competence that belongs to the Judiciary, according to the assessment of jurist Tânia Maria de Oliveira, from the Brazilian Association of Jurists for Democracy (ABJD).
“These people are being prosecuted and tried in the Supreme Court. If Congress decides to grant amnesty to these people, it is clearly invading a jurisdiction that belongs to the Supreme Court,” he explained.
Jurist Tânia Maria de Oliveira, from the Brazilian Association of Jurists for Democracy, considers the Amnesty Bill unconstitutional – Photo: Personal Archive/Disclosure
Tânia Oliveira believes that these parliamentarians are using the instruments of democracy to fight a political battle, not a legal one. “They want amnesty for those who attacked Parliament itself. It has become a strictly political debate, not a legal one. They want to grant amnesty strictly for a political position,” she added.
Pacification
House Constitution and Justice Committee during a meeting to discuss the Amnesty Bill – Photo: Lula Marques/ Brazil Agency
Node favorable opinion on amnestythe rapporteur of the matter in the Constitution and Justice Committee of the Chamber of Deputies, deputy Rodrigo Valadares (União/SE), says that the measure aims at the “pacification” of the country and that “political polarization can lead a country to a civil war when attempts at appeasement are left aside”.
Political scientist João Feres Júnior, professor at the Institute of Social and Political Studies at the State University of Rio de Janeiro (Iesp-Uerj), believes that the project should have the opposite effect to that announced by the rapporteur.
“The release of imprisoned radicals will not bring about any peace. Quite the contrary, it will signal that it is possible to attack institutions violently and come away unscathed,” he says.
Political scientist João Feres Júnior says that the release of imprisoned radicals will not bring about any pacification – Photo: Personal Archive/Disclosure
For the expert, the attempt to pardon those responsible for January 8 reveals a certain desperation on the part of the political actors behind the movement that questioned, without evidence, the result of the 2022 presidential election.
“Bolsonaro’s parliamentarians are a bit desperate. They are clinging to whatever they can. This amnesty agenda is very limited. They just want to save face for those involved in the attempted coup. If you can’t appeal to a larger electorate, then you have a problem,” he says.
Crime
Another argument used by the rapporteur of the Amnesty Bill is that there was no crime against democracy, only the destruction of public property and that those people “did not know how to express their desire at that moment”.
Jurist Eloísa Machado de Almeida believes that this is an attempt to rewrite History and that the investigations underway at the STF are robust in relation to what happened before and during January 8th.
“The arguments want us to believe that there was no crime, but rather a mere manifestation of expression. This is completely at odds with the facts revealed in the investigations and criminal proceedings, which showed a structure focused on committing crimes against democratic institutions, including with the participation of the highest echelons of the Presidency of the Republic, deputies and the people,” he states.
Coup acts on January 8 – Photo: Marcelo Camargo/Agência Brasil
In Brazil, it is a crime to attempt to overthrow, through violence or serious threat, the legitimately constituted government or to impede and restrict the exercise of constitutional powers, as defined by Law 14.197/2021. This legislation also considers it a crime to publicly incite animosity between the Armed Forces and other constitutional powers. The penalties vary and can reach up to 12 years in prison.
