After the pre-trial arrest of Jair Bolsonaro (PL) by the Federal Police (PF) in Brasilia on Saturday (22/11), criminal and criminal law experts consider that the order issued by Minister Alexandre de Moraes, of the Supreme Federal Court (STF), was a “wise” decision given the facts revealed.
Legal experts also say that Bolsonaro’s defense requests that the former president serve his sentence under house arrest are now unlikely to be granted.
“At this moment, house arrest seems very unlikely to me,” says Thiago Botino, a professor at FGV Direito Rio University.
Moraes decided to cancel the preventive home detention, in which Bolsonaro had been detained since the beginning of August, at the request of the Federal Police (PF), after identifying a concrete and imminent risk of escape.
According to the decision, this risk was identified after his son, Senator Flavio Bolsonaro (PL-RJ), called for a “vigil” in support of his father near the former president’s residence and an attempt was discovered to violate the ankle bracelet he was wearing, which Bolsonaro later admitted had occurred.
Bolsonaro has been transferred to federal police control in the Federal District, where he must remain in the State Chamber, a special detention place reserved for the authorities.
The former president’s defense said in a statement that Moraes’ decision aroused “profound bewilderment, because, as the chronology of events shows, it is based on a prayer pause.”
“The 1988 Constitution guarantees the right of assembly to all, especially to guarantee religious freedom,” the lawyers said. Despite noting “the presence of very serious signs of a possible escape,” the truth is that the former president was arrested at his home, with an electronic ankle monitoring device and under the surveillance of police authorities.”
“Moreover, Jair Bolsonaro’s health condition is delicate and his arrest could endanger his life. The defense will file an appropriate appeal.”
On Saturday, Paulo Cunha Bueno, the former president’s lawyer, told reporters that “the ankle bracelet is a narrative that tries to justify the unjustifiable,” but did not respond to the violation caused by Bolsonaro over the equipment.
BBC News Brasil questioned Bolsonaro’s defense regarding the former president’s attempt to violate the ankle bracelet, as he himself admitted to the National Front, but has not received a response yet.
Moraes’ decision will still be put to a referendum by the STF’s first committee, which is expected to hold an extraordinary virtual session on Monday, from 8 a.m. to 8 p.m.
For criminal Mauricio Dieter, a professor at the University of São Paulo Law School, now that Bolsonaro is on the federal police watchdog, it will be possible to modify the concrete possibility that the former president will serve his sentence outside house arrest.
“The arrangements made by the Federal Police Supervision Authority to receive him with medical assistance will serve as confirmation that it is possible for him to begin serving his sentence in a regular prison institution,” says Dieter.
“House arrest was not enough to prevent escape.”
For Thiago Botino, the three main arguments supporting Minister Alexandre de Moraes’ decision are the indications of an attempt to break the electronic ankle bracelet, the call for a vigil near the residence where the former president was under house arrest, and the flight of allies abroad.
On Friday (21/11), Moraes ordered the preventive detention of federal MP Alexandre Ramajem (PL-RJ), sentenced to 16 years in prison for a coup in the same criminal action that convicted Bolsonaro. The parliamentarian left Brazil in September, the month the Special Court’s first panel ruled on the case, and has not returned since.
In his decision, Moraes also refers to the departure of Bolsonaro’s son, Representative Eduardo Bolsonaro (PL-SP), to the United States. The parliamentarian traveled with his family to the United States during the carnival, at the end of last February, and did not return to Brazil.
He became a defendant in a suit before the United States Special Court after being found guilty of imposing sanctions on Brazil and the Brazilian authorities, in an attempt to influence the prosecution of his father. The MP denies this was his intention and says he sought to report the alleged abuses committed by Alexandre de Moraes.
The trip of licensed MP Carla Zambelli (PL-SP) to Italy, after she was sentenced by the STF to 10 years in prison for her involvement in the invasion of the National Council of Justice system, was also used as an example.
For Botino, the arguments make sense especially since Bolsonaro had already ordered preventive home confinement due to his non-compliance with precautionary measures.
“In light of these new facts, as well as the imminent final ruling, a scenario has been created in which house arrest may not be sufficient to prevent escape,” says the expert who sees the “wisdom” in Moraes’ decision.
“Preventive detention specifically aims, among other things, to prevent a person from escaping.”
Criminal Mauricio Dieter agrees with the assessment. “Ramajim showed that normal precautions to avoid the risk of escape were not sufficient,” he says.
“Given this precedent and the violation of the ankle bracelet, the Minister considered it prudent to order pretrial detention, which is a kind of prelude to the commencement of the implementation of the prison sentence in a closed system, while he has already been sentenced.”
“Repeated cases of non-compliance”
In his decision, Alexandre de Moraes also lists all the measures enacted during the Bolsonaro process, as well as repeated non-compliance.
For Bottineau, this factor must also be taken into account. “Faced with the news sent by the Federal Police that there had been a new compliance violation for attempting to break the ankle bracelet, the minister was left in a position where he had no further decision to make,” he says.
The Code of Criminal Procedure permits the order of pretrial detention to ensure public or economic order, the conduct of proceedings, or the application of the law. It is also possible to order preventive measures to be taken in the event of non-compliance with precautionary measures.
On July 17, before the STF trial, Moraes imposed a series of precautionary measures on Bolsonaro, including the use of an electronic ankle bracelet, confinement at home at night, and a ban on the use of social media, directly or indirectly.
Then, in August, the minister ordered the former president to be placed under house arrest, allegedly for his failure to comply with these measures.
Among other things, Bolsonaro appeared via video call on the cell phone of federal MP Nicolas Ferreira (PL-MG) at his supporters’ demonstrations in São Paulo, and later in a video on Flavio Bolsonaro’s social network.
Vigil and anklets
Alexandre de Moraes points out in Bolsonaro’s new arrest warrant that calling for a vigil for his son Flavio could generate crowds capable of impeding police monitoring and the enforcement of judicial rulings.
The call for the vigil was interpreted as part of a strategy to “harm compliance with potential legal measures” and “obstruct the application of criminal law” in the hours leading up to a potential final guilty verdict.
The decision describes in detail the video published by Flavio Bolsonaro on the social network X, in which he calls on his supporters to approach the residence of the former president.
As the document notes, Flavio said: “Are you going to fight for your country or are you going to watch everything on your cell phone from the couch at home? I invite you to fight with us.”
He continued: “With your strength and the strength of the people, we will respond and save Brazil from the captivity in which it finds itself today.”
For Mauricio Dieter, the Brazilian judicial system understood that the vigil could create “a distraction that makes escape possible.” In addition to the attempt to violate the ankle bracelet, this hypothesis becomes even stronger.
According to a document from the State Secretariat for the Administration of Prisons in the Federal District (SEAPE), the monitoring system issued an alert at 00:07 on Saturday, indicating a violation in the device.
The report notes that the equipment showed “clear and significant signs of damage,” with burn marks around its entire circumference, where the case was installed/sealed.
When questioned by police officers who went to the former president’s residence to check what happened, Bolsonaro confirmed that he had used a soldering iron to try to open the equipment. Then the ankle bracelet was changed.
Bolsonaro’s allies have questioned the use of organizing the vigil as an argument for Moraes’ decision. According to him, there was a supposed precedent with the arrest of current President Luiz Inacio Lula da Silva (Workers’ Party).
Between 2018 and 2019, soldiers camped for several days in front of the headquarters of the Federal Police Control Authority in Curitiba, where Lula was imprisoned for 580 days.
But for jurists, the two cases are not comparable.
For Dieter, one of the main differences is the nature of the crimes they were both accused of committing.
“The cases are different mainly because the accusations against President Lula at that time were related to corruption and money laundering, while in the case of Bolsonaro, part of the accusations are actually about challenging the constitutional order,” he says.
According to the criminal expert, the fact that Bolsonaro was convicted of a crime related to mobilizing political power to overthrow the rule of law makes the call for the protest more serious.
Botino also states that Bolsonaro’s case is different because, in addition to repeated failure to adhere to precautionary measures, the call for the vigil was followed by an attempt to break the ankle bracelet, raising suspicions about the possibility of an escape.
The former president’s health and house arrest
On Friday (11/21), Alexandre de Moraes rejected the request submitted by Bolsonaro’s defense to place him under house arrest for humanitarian reasons.
Later, Moraes said that the request was suspended, that is, invalid, after the pretrial detention was decided this Saturday (11/22).
However, the former president’s supporters and family members claim that Bolsonaro’s health is fragile, so house arrest would be the best option.
Representative Gustavo Gayer (PL-GO) even classified the preventive detention as “cruelty” and accused the special forces of wanting to “kill” the former president.
But for Thiago Botino, Alexandre de Moraes’ decision addresses concerns about Bolsonaro’s health by mandating 24-hour medical care.
Moreover, the lawyer says, the former president is not hospitalized or in such fragile health that moving him to another location would pose risks.
Mauricio Dieter also says that the concern for Bolsonaro’s health that emerged in the decision is “unusual,” something that “does not happen to ordinary prisoners.”
He believes that “this criticism ignores the way in which most people are arrested on a daily basis, because no one who is arrested has the privilege of receiving comprehensive medical care, with supervision during his period of imprisonment.”
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