Federal MP Nicolas Ferreira (PL-MG) may face complications in court for not complying with the decision of Minister Alexandre de Moraes, of the STF (Supreme Federal Court), to use a cell phone during a visit by former President Jair Bolsonaro (PL).
However, this scenario is considered unlikely by experts interviewed by the newspaper Bound. They are also divided on the adequacy of a request to search and seize the congressman’s cell phone, which was requested in a criminal report that Congresswoman Erica Hilton filed with the Supreme Court.
TV Globo captured the scene of Nicholas visiting Bolsonaro, who was under house arrest, with his cell phone last Friday (21). On social media, the parliamentarian criticized the broadcaster for the filming, and stated that he did not intend to violate the Moraes decree of August, which prohibits visitors of the former president from “using mobile phones, taking photos or recording images.”
But the truth has already had repercussions for Bolsonaro, with Moraes summoning his lawyer to explain the use of the device.
On social media, Nicholas stated that he had not received advance notice of this restriction. “Without formal communication, there is no way to claim non-compliance. I repeat that at no time did I have any intention of not complying with the court’s decision.”
The former vice president’s visit came hours before Bolsonaro attempted to break the electronic ankle bracelet. An attempt to damage the equipment with a soldering iron led to Moraes issuing an order for the preventive arrest of the politician, which took place on Saturday (22).
After photos of Nicholas with the former president were published, Rep. Erica Hilton filed a forensic report with the STF. The text says there is “substantial evidence that the actions of the observer (Nicholas), particularly the use of a cell phone with the defendant and the interaction in a custodial environment, not only fail to comply with the court order, but also indicate active participation in the coordination preceding the escape attempt, constituting aiding, abetting, or facilitating failure to comply with the court order.”
The article argues that there is sufficient evidence for the crime of disobeying the legal order of a public employee, stipulated in Article 330 of the Penal Code and punishable by imprisonment from 15 days to six months, in addition to a fine. It also indicates the possibility that Nicholas may have fallen foul of Article 351 of the same Code, in connection with promoting or facilitating the escape of a lawfully imprisoned person. In this case, the penalty shall be imprisonment from six months to two years.
Finally, the representation requests the opening of a police investigation and the search and seizure of Nicholas’ cell phone, among other requests. This Wednesday (26), the PSOL of the House of Representatives also stated that it had submitted a request for an investigation to the PGR (Prosecutor General’s Office).
According to Luisa Ferreira, professor of criminal law at FGV-SP, the arrest of Nicholas using his cell phone could have legal implications, but the scenario is unlikely.
She understands that the aim of the judicial ban is to prevent Bolsonaro from using third parties to access the device. Therefore, non-compliance would have implications for the former president himself, if the precautionary measure had not previously been aggravated by preventive detention, and now by eventual conviction.
According to Loiza, the mere fact that the deputy used his cell phone on the same day the former president tried to remove his ankle bracelet is not sufficient evidence that a crime occurred. Therefore, she also says she finds the request to confiscate the device “weak and reckless”, if there is no other evidence linking Nicholas to the escape attempt.
For Ricardo Geros, professor of law at the Universidad Espírito Santo (Federal University of Espírito Santo), this incident should not lead to criminal consequences.
According to him, the most appropriate crime for the case is Article 349-A of the Penal Code, which relates to entering a prison institution with a telephone, without a legal authorization.
“Had Nicholas entered a typical prison facility, the crime would have been conclusively clear.” The expert believes that the criminal type can be extended to the case, because home detention is a type of prison.
The expert adds that the caveat to this reasoning is that “in criminal law, there are restrictions on any kind of interpretation that may be broad.” Therefore, he realizes that the use of mobile phones in this specific case will not be punished.
The request to confiscate the cell phone is considered reasonable, according to Guerros, “out of caution, and even out of protection for Nicholas himself (meaning to protect him from the charge of trying to escape).”
For Marcelo Crespo, coordinator of the ESPM law course, the parliamentarian may have committed the crime of sedition, if in fact he was aware of the ban. In this case, there is likely to be an impact on justice and crime formation.
Crespo wonders: “If he was aware of this decision, then he should be held accountable for disobedience. But the question is: Was he aware of this?” “If it were a decision in a lawsuit against Nicholas, there would be no doubts. But in this case, the lawsuit concerns a third person. That is why the answer in this case is not very objective.”
Crespo realizes that if the parliamentarian was aware of the ban, it would be necessary for the authorities to launch an investigation to investigate the behaviour. Regarding the request to confiscate the device, the expert says that it makes sense in the context, as it includes a request for a protest that may facilitate, according to the authorities, Bolsonaro’s escape and the attempt to break the ankle bracelet.