The defense of former President Jair Bolsonaro (PL) may try to overturn the conviction issued by the STF (Supreme Federal Court) over the coup plot after Minister Alexandre de Moraes closed the case and ordered the punishment to be carried out, but the probability of success is low.
Last Tuesday (26), the judge declared the decision final (an expression used for a decision that is no longer subject to appeal), based on the understanding that his jurisprudence is strengthened in court, despite being subject to cross-examination.
The alternatives available to the former president’s lawyers to try to fix this decision are scarce, and the chances of reaching a legal solution based on the current scenario are slim to say the least, say experts consulted by Amnesty International. Bound.
Bolsonaro’s defense said in a statement that they were surprised by the official end of the operation. In Monica Bergamo’s column, lawyer Celso Velardi, who represents the former president, stated that he would oppose violating the ban despite the final and non-appealable decision.
Violation of the ban is a source of defense exclusively in the case of non-unanimous decisions. In the Supreme Court, the already settled interpretation is that it only applies in class actions when there are two votes for acquittal.
Criminal lawyer Lucas Miranda, a professor of criminal law, believes that Moraes’ decision makes any new appeal impossible. This does not prevent the ban from being lifted, but it means that it should not even be received.
He adds: “There is a political issue related to filing these appeals, because, logically, there will be a discourse that there is no complete possibility of appeal. This serves a political motive more than a legal motive.”
The alternative after the final ruling is criminal review. It is a procedure, not an appeal, aimed at correcting judicial errors, such as decisions that are illegal, based on false evidence or that may be reconsidered in the light of new elements.
For example, a video clip, which was not attached to the file, is discovered years later, showing that the killer was one person and not another. Or it turns out that the court convicted a person for simple trafficking and possession of caffeine alone.
“It seems to me that this argument is unlikely to have much chance of success,” says lawyer and professor Ivan Zonta. “And that is not just because of this case, but because of the type of legal analysis that is being done based on these options.”
According to him, these measures are appropriate in very limited cases. “It usually has to be very blatant to fit into that option, to fit into that potential to provide forensic review,” he says.
The Supreme Court’s internal regulations stipulate that if a criminal review is brought against a decision of one group, the procedure will be distributed among the ministers of the other group – in Bolsonaro’s case, the second body. But the power to govern rests with the plenary session.
Lawyer Cristiano Falk Fragoso, professor at the Department of Criminal Law at Rio de Janeiro State University, cites another option: summoning the Inter-American Commission on Human Rights.
This was a hypothesis put forward by lawyer José Luis Oliveira Lima, who represents General Walter Braga Neto, the former Minister of Defense and former vice-presidential candidate on Bolsonaro’s list. Lima referred to a “systematic violation of the right to defence.”
The procedure for activating the commission, which could bring the case to the Inter-American Court of Human Rights, requires exhausting all legal channels available in Brazil. That’s why engaging with perpetrators and forensic review is important, says Fragoso.
“(The defense) loses nothing,” the professor says. “He could say, ‘I filed the appeal and they didn’t take it,’ questioning whether the Supreme Court’s jurisprudence requiring two votes (for dissenters) does not violate the principle of dual class jurisdiction.”
The Inter-American Court of Human Rights is based on the American Convention on Human Rights. The analysis focuses on whether there are violations of any of the rights stipulated in the Charter, such as the right to defense or the right to silence, in addition to the principle of dual jurisdiction.
The decision of the international court may recognize a case of violation, but it does not have the power to overturn or annul a judicial decision in Brazil. In practice, it is more political and symbolic than a legal tool to overturn a conviction.