STF could determine measures after Bacellar’s release, such as wearing ankle bracelet, expert says

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MPs also bet that Minister Alexandre de Moraes, who ordered the arrest, should maintain Bacellar’s dismissal as a precautionary measure. This possibility, however, still divides opinions within the House, particularly among the president’s closest allies.

In his decision, Moraes emphasizes that there is “strong evidence” of Bacellar’s ​​participation in a criminal organization. The minister states that the Alerj president would actively act to “obstruct investigations involving criminal factions and actions against organized crime, including influence on the executive power of the state.” Bacellar was arrested on suspicion of disclosing Operation Zargun, whose main target was MP Thiego Raimundo dos Santos, known as TH Jóias, who was arrested in September on suspicion of links to the Comando Vermelho (CV).

“All these elements reveal the existence of a real parallel state, led by political capos from Rio de Janeiro who, behind the scenes, divulge information that makes the success of relevant police operations against violent criminal factions, such as the Comando Vermelho, unfeasible,” says an excerpt from the PF investigation, which appears in Moraes’ decision.

Specialist in administrative and constitutional law, lawyer Tiago Francisco da Silva explains that by accepting the decision to release Alerj, the STF can impose other precautionary measures, in addition to maintaining the dismissal:

— Minister Moraes can also determine conditions such as the use of an electronic ankle bracelet; the prohibition of any contact with other persons investigated or witnesses; and the ban on visiting certain places. These measures aim to ensure the investigation proceeds without completely restricting the parliamentary mandate, respecting the decision to release Alerj, but maintaining judicial control of the case.

To support Alerj’s deliberation, the expert cites Article 53 of the Federal Constitution, which deals with the principle of parliamentary immunity. In other words, he said, the prerogative to suspend the arrest “is a constitutional guarantee of the Legislative Chamber, aimed at preserving the independence of Power and avoiding any undue interference in the parliamentary mandate.”

— Deriving from the principle of parliamentary immunity, paragraph 2 of article 53 provides that “the members of the National Congress, from the issuance of the diploma, cannot be arrested, except in the case of a crime not subject to bail. In this case, the minutes will be sent within twenty-four hours to the respective Chamber, so that, by the vote of the absolute majority of its members, it can decide on the arrest.” The preventive arrest of MP Rodrigo Bacellar was ordered because she is suspected of obstructing an investigation into a criminal faction, which falls under the exception which allows the preventive arrest of parliamentarians, he explains.

According to Tiago, on a legal level, the final word on the arrest rests with Parliament – ​​in this case Alerj – whose decision “is sovereign and of a political nature”.

Another specialist in administrative and constitutional law, Hermano Cabernite also cites article 53 of the Federal Constitution. For him, the provision is not limited to the National Congress:

— On May 8, 2019, the STF ruled that state legislatures have the authority to review or suspend arrests and precautionary measures imposed on state legislators, thereby extending the immunity from arrest provided for federal deputies and senators. This decision had an impact on cases of arrests ordered against state deputies, such as in Rio de Janeiro.

Cabernite understands, however, that the constitutional provision only provides for imprisonment. Which, according to him, “does not cover other restrictive measures”.

The meeting of the Constitution and Justice Commission (CCJ) focused only on the constitutionality of Bacellar’s arrest, without deliberating on the possible dismissal of the parliamentarian, a decision which can be attributed to the fear of the president of the CCJ, Rodrigo Amorim, of confronting Minister Moraes – something he himself admitted.

For jurist and professor Lenio Streck, since the deputies decided, by majority, to release Bacellar, it would not be up to the House to adopt a measure that would involve his dismissal.

In his decision, Moraes mentions the preventive detention and, consequently, the dismissal of the deputy. For Lenio, however, Alerj’s deliberation is supported by the Constitution of the State of Rio de Janeiro:

— Alerj revoked the arrest and, in doing so, exercised his power. I do not think that further restrictive measures are appropriate.

Asked if the minister could impose new precautions if the PF indicted Bacellar, given the more than R$90,000 found in his car at the time of his arrest, Lenio replied that it would be possible:

— The magic word is “new facts”. Concerning the old facts, already known, Alerj has already spoken out. Moraes must comply with what the Assembly has decided. In a short time, he could be arrested again.