For Fux, accusation of qualified damage should be absorbed by more serious crimes

Minister Luiz Fux opened a new disagreement in the trial of the coup plot by stating that the accusation of qualified damage and the deterioration of overturned assets should not be considered autonomously.

For him, such offenses must be “absorbed” by the most serious crimes of coup and violent abolition of the Democratic Rule of Law.

“A offense can only be considered if there is no more severe crime than absorbing it,” he said. The reasoning follows the so -called absorption principle, used in cases in which the crime of lower gravity is just a means for the consummation of another more relevant.

Divergence in relation to Moraes

By supporting this position, Fux distanced himself from rapporteur Alexandre de Moraes, who saw Jair Bolsonaro immediately in the acts of January 8 and defended his liability also for material damage. For Fux, this interpretation would be “paternalistic” for attributing to the former president a kind of direct command over the vandals, disregarding the autonomy of the protesters.

“The vandals that destroyed assets of invaluable value to the Republic were not unimputable, nor did they act in error of type. Did anyone who damaged the assets believed that their conduct was lawful? Recognizing the mediate authorship, in the case of the case, would be an excessively paternalistic and annihilating attitude of the autonomy of criminals,” said the minister.

Example used by Fux

The magistrate used an analogy to support his thesis. “The destruction of a fence to invade a property can configure the crime of home violation, more severe than damage. In this case, the crime of damage is absorbed by the larger end, which was the invasion,” he explained.

Applying this reasoning, Fux argues that the crimes of damage and deterioration of assets occurred on January 8 should be framed only as instruments for the attempted coup.

VOTE IMPACT

Fux’s position does not alter the tendency of conviction of the group, already consolidated by the vows of Moraes and Flávio Dino. However, it may have an important reflection on defining the penalties.

If his vision prevails, Bolsonaro and the other defendants would not accumulate sentences for qualified damage, which would reduce the total prison time to be fixed in dosimetry.

The Judgment in Progress

The first class of the Supreme Court, chaired by Minister Cristiano Zanin, resumed on Wednesday (10) the analysis of the complaint against the so-called “crucial core” of the alleged coup plot, appointed by the Attorney General’s Office (PGR) as responsible for articulating measures to prevent the possession of Luiz Inácio Lula da Silva (PT) after the election of 2022.

Ministers Alexandre de Moraes and Flávio Dino voted for the rejection of all preliminary defendants argued and asked the defendants to be convicted of all crimes imputed by PGR. The trial will have extraordinary sessions until September 12.

Vote of Minister Alexandre de Moraes

For the rapporteur of the case, it was proven that there was an attempt to coup d’état from 2021, when the first preparatory acts began to be executed with the misuse of public agencies, such as ABIN and GSI, to discredit the electronic ballot boxes and the judiciary.

Moraes dealt with Bolsonaro as leader of a hierarchical criminal organization, structured with division of tasks and composed of military and federal government members. According to him, the objective of the group was to ensure the permanence in power “regardless of the electoral result”, using illegal instruments and paying attention against democracy.

The minister rejected all preliminaries presented by the defenses, maintaining the validity of Mauro Cid’s award -winning denunciation and the evidence gathered by the Federal Police. He stressed that it is not necessary to consummate the coup so that the crime is configured – executory acts are already enough to hold those involved.

For the minister, the gathered evidence demonstrates that the central target of conspiracy was the democratic rule of law, systematically attacked to undermine the institutions and paving the way to the perpetuation of Bolsonaro’s political group in power.

Flávio Dino vote

Minister Flávio Dino accompanied the rapporteur Alexandre de Moraes and voted for the conviction of Jair Bolsonaro and seven other defendants of the so -called coup plot.

In his speech, Dino rejected the thesis of the defenses that the conduct would only be “preparatory acts.” For him, there were concrete enforcement acts that configure violence and serious threat, such as highway blocks, attempts to close airports and attacks on institutions. The minister pointed out that crimes of enterprise – such as coup and abolition of the democratic rule of law – do not require consummation to be punished.

The magistrate was also categorical in stating that the crimes imputed to the defendants are unsusceptible of amnesty, as they involve actions of armed groups against the constitutional order. Dino also rejected the idea of ​​a “self -annist” in favor of high levels of power, remembering that there was never precedent of this kind in the history of the country.

In analyzing the participation of each defendant, Dino said that the penalties should not be equal, as the levels of culpability vary. Bolsonaro and Walter Braga Netto were pointed out as leaders of the criminal organization, with greater responsibility. Garnier, Anderson Torres and Mauro Cid were also classified with high culpability, while Augusto Heleno, Alexandre Ramagem and Paulo Sérgio Nogueira had a minor participation.

Next Steps

The process now goes to the votes of ministers Cármen Lúcia and Cristiano Zanin. Each vote will be divided into two stages: first, the analysis of preliminaries – such as the validity of Mauro Cid’s allegation and the competence of the Supreme Court; Then the merit, with the evaluation of the evidence presented by PGR.

The final decision will be made by a simple majority. If the conviction is confirmed, the penalties will be discussed in a later stage.

Who are the defendants

In addition to Bolsonaro, they respond in the action:
• Alexandre Ramagemfederal deputy and former director general of ABIN;
• ALMIR GARNIERformer commander of the Navy;
• Anderson Torresformer Minister of Justice and former Secretary of Public Security of the DF;
• Augusto Helenoformer GSI minister;
• Mauro CidLieutenant Colonel and former Assistant of Bolsonaro Orders;
• Paulo Sérgio Nogueiraformer defense minister;
• Walter Braga Nettoformer Minister of Defense and Civil House, candidate for vice president in 2022.

The eight defendants are accused of armed criminal organization, attempted violent abolition of the Democratic Rule of Law, attempted coup, damage qualified by violence and serious threat and deterioration of listed heritage. In the case of branch, part of the accusations was suspended by decision of the House of Representatives.