On January 9, almost 2 thousand people who were in front of the Army headquarters were arrested Photo: Renan Ramalho/Gazeta do Povo
Among many of the more than a thousand defendants arrested on January 9 last year, for being present in the camp in front of the army headquarters, in Brasilia, the day after the invasion of the headquarters of the Three Powers, feelings of injustice, fear, desperation, revolt and sadness predominate. Many find themselves forced by family and friends to sign up to a non-criminal settlement, offered by the Attorney General’s Office (PGR), to escape certain condemnation by the Federal Supreme Court (STF).
To escape punishment, they are forced to confess to crimes they believe they did not commit: criminal conspiracy and incitement by the Armed Forces to animosity against constitutional powers. The two crimes were attributed by the PGR to those who were in the camp the day after the raid. If convicted, they face a maximum sentence of 3 years and 6 months, a level generally served in the open regime, outside of prison.
The standardized complaints against all did not describe in an individualized and precise way how each of these people had associated themselves with the intention of committing crimes and encouraged the military to take power – in the pieces the PGR included photos of posters and banners of unidentified protesters , in front of the headquarters, asking for help or intervention from the Armed Forces. Initially, the body considered that a non-criminal agreement – whereby the person confesses, pays compensation, provides community services and fulfills the requirements agreed with the Prosecutor’s Office – was not appropriate in these cases because it would not be sufficient to disapprove and prevent a crime against the democratic rule of law.
In the second half of 2023, however, after an appeal from the Brazilian Bar Association (OAB), the PGR changed its mind and began offering the settlement to defendants who met other requirements, including having a good record.
In December, Minister Alexandre de Moraes, who heads the proceedings at the STF, validated the agreement of 38 of these defendants, imposing on them payments ranging from R$ 5,000 to R$ 50,000, depending on the financial capacity of the person, 300 hours to provide community services, delete profiles on open social networks, pledge to no longer get involved in crimes and take a 12-hour course on democracy.
Lawyers say the settlement is painful
The advantage is to get rid of the trial and conviction once and for all. However, according to lawyers working on the case and familiar with the process, several defendants who agreed are unhappy. “This agreement wasn’t really an agreement, it was a ‘term of accession’. People couldn’t negotiate, especially on the issue of confession,” says lawyer Carolina Siebra, who defends four defendants who didn’t sign the agreement, but she knows others who agreed.
She argues that these people cannot be punished for an impossible crime – a basic principle of criminal law. “It’s like trying to kill a person with a water gun. The man may have intended to kill, but when he pulled the trigger water came out. The law says that impossible crimes cannot be punished,” she explains.
However, people are forced to confess to inciting the military to carry out a coup due to several factors. “There is a fear that some surprises may appear along the way, given the many illegalities already committed in these investigations. For example, it appears from a report that the person was in Congress when she was not present. So this leads her to another investigation. It would cause a further stir,” says the lawyer.
For those caught inside the Congress, the Palácio do Planalto or the STF, the complaints concern five more serious crimes, which have already resulted in sentences of 14 to 17 years in prison.
Another problem you highlighted is clause nine of the agreements, according to which the confession can be used by the Judiciary as an “information element” even in the event of termination. For Siebra there is the fear that, while people are convicted of a “mass” crime – which does not require individualization of the conduct -, the confession of some of inciting the coup will serve to condemn others who have done so . Don’t close the deal.
“My fear is that the confession will be used to convict someone else who hasn’t reached an agreement. If it is assumed that the person was associated, he or she also committed a crime. If you confess it, the other person did too. In the midst of so much illegality, this extension would not surprise me,” says the lawyer.
For Bruno Jordano, who defends another wave of defendants, the agreement is very painful, considering that dozens of people remained in preventive detention – therefore without conviction – for a longer period than they would have been in prison in the event of condemnation. “Due to the size of the sentence, they couldn’t even be subjected to preventive detention, but they were. Plus the fine makes the deal even more painful,” he says.
One of the first to get the agreement approved, for example, was São Paulo military police officer Ademilson de Souza Lopes, 52 years old. As soon as he was accused at the beginning of the year, the defense had asked for an agreement, but the PGR had excluded him. Then, when the agency accepted, it proposed confession and payment of R$10,000. His lawyers protested and, in a counteroffer, said the initial offer was “unreasonable, reckless, punitive.”
“The proposed conditions are more severe than any punishment to which the defendant could legally be subjected, even if convicted, as the defendant, even without having committed any crime, has spent two months in prison and remains under electronic surveillance. and other precautionary measures to date,” the defense said in September.
He argued that he should not have to pay any compensation because, having remained in the Army headquarters and not having participated in the acts of vandalism in Praça dos Três Poderes, “he did not contribute in any way to the depredations”. “Although retired, he is the father of 4 children and is the sole breadwinner of the family, as demonstrated above. Therefore he does not have sufficient means to pay the sum of R$10,000, not even in one lump sum.”
The only concession made by PGR in this case was to divide the amount into 10 monthly installments, “without interest”.
The agreement on non-criminal action also says that compliance with the requirements releases the person from criminal proceedings, but not from civil, administrative or administrative improbability proceedings. This means that the amount you pay could be even higher.
Jordano understands that, in fact, it is not reasonable to extend the effects of a criminal agreement to other areas. But, in the case of the defendants of 8 January, it would be right for the Union to also offer them the possibility of an agreement that does not imply civil liability, even more so without a trial that allows extensive defense and contradiction.
As for the agreement itself, the lawyer estimates that it is a “very bitter medicine”.
“These people who choose to enter into the agreement may experience a feeling of injustice, which may worsen over time, but it is completely understandable that they adhere to it, because they live in an exceptional situation, serving a sentence for a crime they did not commit , for which there is a likelihood of an unjust conviction. The processes are already exceptional. There is psychological pressure for people to conform. As time passes, they may feel remorse. Especially because, even if they were convicted, the sentence would not be equivalent to such a long period of imprisonment,” says the lawyer.
“There is a desperate situation between the family members and the defendants, who want to get out of this situation quickly. First, they didn’t agree to take the risk of being there. They went out with a single purpose, to demonstrate, they ended up arrested and subjected to an early sentence, without having adhered to that criminal idea. Subjected to such a painful process, they became desperate, people and their families were not prepared, hence the interest in getting out of this situation immediately. Others understand that they are experiencing lawlessness and do not agree,” she says, ultimately referring to those who chose not to accept the agreement.
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2024-01-05 00:30:00
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