Majority of Supreme Court justices reject amnesty for crimes against democracy.
Seven ministers have already rejected pardoning anti-democratic crimes in decisions made previously.
247 - Seven of the 11 justices who make up the Supreme Federal Court (STF) have already expressed their opposition to the possibility of granting amnesty for crimes committed against democracy. According to the newspaper The GlobeMost of these rulings occurred in 2023, when the Supreme Federal Court (STF) overturned the pardon granted by then-President Jair Bolsonaro (PL) to former congressman Daniel Silveira. Sentenced to eight years in prison for threats against the Democratic Rule of Law, Silveira did not have the benefit validated by the Court, which pointed out that crimes of this nature cannot be pardoned.
The First Chamber had already rejected pardons for political crimes.
In that trial, ministers Alexandre de Moraes, Cármen Lúcia, Gilmar Mendes, Dias Toffoli, and Luiz Fux voted against the presidential pardon. Subsequently, Cristiano Zanin and Flávio Dino also reinforced the same line of reasoning.
Currently, Moraes, Cármen, Fux, Zanin, and Dino are part of the First Panel, which is analyzing the case regarding the attempted coup involving Bolsonaro and other defendants. Allies of the former president are trying to pass an amnesty bill in Congress, but if it moves forward, experts believe the issue will be taken to the Supreme Court for litigation.
In a recent session, Dino highlighted that the majority of ministers already consider these crimes "not eligible for pardon, amnesty, removal from office, or extinction of punishability."
Disagreements among ministers expose differing interpretations.
Despite the majority consensus, there are nuances. Luiz Fux stated: "I understand that a crime against the Democratic Rule of Law is a political crime and not subject to amnesty, since the Democratic Rule of Law is an entrenched clause that not even the National Congress, through an amendment, can suppress."Dias Toffoli, however, presented a different interpretation. Although he voted against the pardon, he said that... “The acts committed on January 8th, for example, are not eligible for pardon because they are an attack on the Democratic Rule of Law and the separation of powers. In theory, I believe they could be the subject of an amnesty law approved by Parliament, as has happened in the past in our history.”.
The president of the Supreme Federal Court (STF), Minister Luís Roberto Barroso, also pointed out that, after a possible conviction, the discussion about amnesty becomes a political issue. Even so, he has reinforced the need for "accountability for all those who threaten democracy."
Amnesty bill in Congress could end up in the Supreme Court.
In the 2023 decision, only André Mendonça and Kassio Nunes Marques voted in favor of pardoning Silveira, arguing that the Constitution only explicitly prohibits amnesty for crimes of torture, drug trafficking, terrorism, and heinous crimes.
Cristiano Zanin, who at the time was not yet a minister, published an article arguing that Bolsonaro's pardon was illegal because it "disrespected another branch of government, overriding the independence and harmony between the branches of government."
Change of position
This Wednesday (10), however, Luiz Fux distanced himself from his previous position regarding the Court's competence to judge those involved in the coup attempts of January 8. Until recently, Fux supported the understanding that the STF should be responsible for analyzing more than 1.600 cases related to attacks against democratic institutions.
However, since March of this year, the minister has questioned this jurisdiction, arguing that the defendants do not have privileged jurisdiction and, therefore, should be tried in the first instance. This change of position was consolidated this Wednesday, during the trial of former president Jair Bolsonaro and seven allies involved in the attempted coup.
Fux argued that, since the accused are not authorities with special jurisdiction, they should be prosecuted in lower courts. It's worth remembering that in April 2023, the minister had fully supported the vote of the rapporteur, Alexandre de Moraes, who determined that the Supreme Court should handle the trials related to the acts of January 8th, as they were linked to other cases already underway in the Court. At the time, only ministers André Mendonça and Nunes Marques disagreed with this position.
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