Alleged effect of medication does not exempt Bolsonaro from guilt for coup-mongering post, say legal experts.
Investigated as the mastermind behind the January 8th terrorist attack, Bolsonaro told the Federal Police that he made the post attacking electronic voting machines while under the influence of morphine.
247 - Investigated as a possible intellectual mastermind behind the January 8 terrorist attacks, Jair Bolsonaro (PL) testified to the Federal Police this week to explain the post he made on the 10th attacking electronic voting machines. Investigators believe the publication links him to the coup attempts, since the post was considered a sign that he may have encouraged the invasion of the buildings of the Three Branches of Government.
To justify the post, Bolsonaro stated that he had undergone surgery days before and He said he was under the influence of morphine. when he 'mistakenly' posted the material on his Facebook page. However, article 28 of the Penal Code states that "voluntary or culpable intoxication by alcohol or substances with analogous effects does not exclude criminal liability." According to five experts interviewed by Malu Gaspar of the newspaper... The GlobeThe article in question is a basic concept of Criminal Law. Therefore, Bolsonaro's argument will certainly be challenged by the Federal Police.
"I've worked in criminal law for 24 years, and this seems like a rather childish argument to me. Claiming drunkenness or drug use is not enough to absolve criminal responsibility," says criminal lawyer Helena Lobo Costa, professor of Criminal Law at the University of São Paulo.
"If you experience mental confusion due to a substance or medication you took without knowing its effects, you could use that argument. But when you are taking a substance that is known to alter your mental state or capacity for self-control, you cannot claim insanity," explains criminal lawyer Pierpaolo Bottini.
The position taken by Bolsonaro's defense reveals that the strategy is to use the argument of mental confusion to dismiss intent – when it is proven that the person intended to commit a crime – explains Bottini. "What seems to be happening is that they know they can't claim that the former president lost self-control because of morphine, or that he didn't know what it was about when he posted that content. The argument must be that Bolsonaro made a mistake and posted in the wrong place, that is, without the intention of spreading coup-mongering content."
For Helena Lobo, the argument still doesn't hold up. "It's true that a mistake eliminates responsibility in many situations. Deleting the post could indicate that there was a mistake, but we're not talking about a common occurrence. What happened on January 8th was an attack on the powers that be, widespread vandalism, and the author of the post is a former president of the Republic. If it were truly a mistake, a post with which he disagreed, it would have had to generate a retraction or another post strongly condemning the attacks."
"I don't see how the claim of non-imputability can prosper. From a legal standpoint, there isn't even any evidence to support this claim, and even if medication is involved, the situation doesn't change. The claim even seems childish," assesses criminal lawyer Celso Vilardi, professor at FGV São Paulo.
>>> Allies criticize Bolsonaro for citing morphine in flimsy excuse to the Federal Police.
Criminal lawyer Raquel Scalcon, also a professor at FGV São Paulo, says it is necessary to confirm whether Bolsonaro was indeed medicated with morphine and to verify how much the medication could affect his lucidity. "For all these reasons, the argument is unlikely, especially because it will be very difficult to confirm that his understanding was affected to such an extent as to exempt him from criminal responsibility."
According to criminal lawyer Thiago Turbay, there is another problem with Bolsonaro's lawyers' argument: "there is no evidence that he had difficulty accessing the messaging platform, that he had writing difficulties, or that his perception of reality was substantially altered."