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Understand ways that can lead to the criminalization of Bolsonaro

MOGI DAS CRUZES, SP (FOLHAPRESS) – Law experts heard by the report believe that the president’s conduct may constitute common crimes provided for in the Penal Code, but for a criminal action to be taken by the STF (Supreme Federal Court), a complaint from the Attorney General of the Republic, Augusto Aras, and the endorsement of the Chamber. In the case of the pandemic, as it is an issue that affects the community, it is not possible to submit a criminal complaint to the Supreme Court: this is only valid when there is a person directly affected. According to experts, a possible path is for the crisis and the consequent pressure from public opinion to provide the missing political element for an impeachment process to be ruled out. This Wednesday (31), after the joint dismissal of the commanders of the Armed Forces as a result of the departure of the Defense Minister, opposition leaders filed a new impeachment request, for attempting to interfere in the institution and “threat to democracy”. Understand what are the possible ways to hold the president accountable. * Which Bolsonaro’s behaviors in the pandemic indicate signs of common crimes provided for by the Penal Code? On the last 24th, the national OAB filed a representation in the PGR for the president to be denounced to the STF for crimes provided for in articles 132 (danger to the life or health of others), 268 (infraction of preventive health measure), 315 (employment of public funds or public income) and 319 (malfeasance) of the Penal Code. The same conducts, in addition to article 257 (removal, concealment or destruction of rescue material), were pointed out in a representation presented by former prosecutors in January. In another, presented by AJD (Associação Judges for Democracy), three of the crimes represented by the OAB are cited. AJD President, Labor Judge Valdete Souto Severo says that the representation was based on the collapse in the health network in Manaus and the lack of oxygen in hospitals that led to death. Criminalist lawyer Marina Coelho Araújo, president of IBCCrim (Brazilian Institute of Criminal Sciences), analyzes that the case of the capital of Amazonas, in addition to the president’s disrespect for social distance measures and the advertising of medicines without scientific evidence, point to signs for characterization crimes. “It is not that the pandemic was created by the government, but the structural condition of Brazil today is the result of the Executive’s omissions and ungoverned actions,” he says. Legal analysis carried out by the Center for Research and Studies on Sanitary Law at the Faculty of Public Health at USP and by Conectas of 3,049 standards issued during the pandemic in 2020 concluded that there was an institutional strategy for the spread of the virus. The document points out the need to discuss the configuration of crimes of responsibility, against public health and against humanity. Full professor at USP and one of the coordinators of the study, Deisy Ventura says that there are indications of crimes committed not only by the president, but by other federal agents in a set of actions that includes the editing of rules, obstruction of local responses, delay in transfers. , incitement to disrespect and a constant campaign against governors and mayors, in addition to public health propaganda. “The study demonstrates the existence of a systematic plan for the spread of the virus that reflects the option for collective immunity due to contagion. It is this option that we consider that can constitute a series of crimes”, he says. How does the process against the President of the Republic for common crimes work? Under the prerogative of the forum, the president can only be judged by the Supreme Court. It is necessary to present a complaint by the Attorney General of the Republic to the court, which needs the approval of at least 342 federal deputies. If it is not accepted, the president can respond to the process after leaving office. Lawyer Pierpaolo Bottini explains that it would not be possible to file a criminal complaint against the president for conduct during the pandemic, since the crimes identified affect the population collectively, so the presentation must be made via the Public Ministry. The criminal complaint would fit in cases where the individual is directly affected – for example, in crimes against honor. Valdete Severo criticizes the lack of action on the part of Aras in view of the representations already made. “There is a complete alignment in the PGR’s stance with the president. He acts almost like a personal lawyer.” Augusto Botelho, advisor and founding partner of IDDD (Defense Institute for the Defense of the Right of Defense), also does not believe in a complaint by Aras, unless a completely new fact emerges. “If he had the initiative that he should have, he [Aras] he should have done it already, “he says. Marina Araújo, from IBCCrim, disagrees that there is an omission. In the case of Manaus, the attorney general even instituted a preliminary investigation to verify the conduct of Bolsonaro and the then Minister of Health, Eduardo Pazuello. “It is logical that his position involves a lot of political issues and that he can understand the best time to do that [denunciar], but that he is committed to not doing, I don’t believe it “, he says. The Chamber is led by Arthur Lira, now an ally of Bolsonaro, who has the prerogative to open an impeachment process. Is this still possible? Experts estimate that the legal requirement has already been fulfilled to support a process of removal from the president, that is, indications that Bolsonaro violated the Constitution and the Law on Crimes of Responsibility (1,079 / 50). A survey by the Folha de S.Paulo newspaper showed 23 acts or statements by the president that could be used to support an impeachment request. There would remain the political component for the opening of the process, which can be given by the worsening of the pandemic. Augusto Botelho and Valdete Severo assess that the pressure from the public opinion and the press can reflect on Congress and change the posture of Lira and the other members of the so-called centão, which supports the allied base. “[Lira] he is not oblivious to the desires and pressure of society and the press “, says Botelho. The lawyer highlights the pressure of the market, such as the letter in which economists, bankers and businessmen charge for actions in the face of the pandemic. In addition to it, another element came with the crisis in the Armed Forces generated after the resignation of the defense minister, General Fernando Azevedo, last Monday (29), which led to the joint departure of commanders Edson Leal Pujol (Army), Ilques Barbosa (Navy) and Antônio Carlos Bermudez (Aeronautics) When filing a new impeachment request against the president, the opposition leaders stated that Bolsonaro tries to control and use the army politically during the pandemic. Once guided by the mayor, the impeachment process needs the approval of After that, 41 votes in the Senate and another 54 in the same house are required to initiate the process, so that the president loses his mandate. international beast? In which instances? Deisy Ventura explains that Bolsonaro can only be sued individually by national and international jurisdiction. This means that, if domestic remedies are exhausted or when there is no possibility of trial in the country itself, due to conflicts, the president can only be punished by the International Criminal Court, created to try crimes of genocide, against humanity and war. “There is no possibility of investigating the criminal conduct of public officials either in the UN Human Rights Council or in the Inter-American System. What the system will certainly do is to investigate the responsibility of the Brazilian State,” he says. In the case of the ICC, the complaint filed in 2020 has been temporarily dismissed. Deisy says this does not mean that there is no crime against humanity or genocide. “It simply means that the court will not proceed with the investigation because the court has strict criteria on what it is able to investigate or not.” A report by Folha de S.Paulo showed that this international court receives 500 to 900 requests per year, of which more than 90% are discarded. Constitutional law professor Pedro Serrano (PUC-SP) says that an obstacle to this is the lack of documentation. He advocates the creation of a CPI to gather evidence on conduct and list those responsible. “In the political and moral philosophical field, Auschwitz was for the exercise of political power in times of war as Manaus is for the exercise of political power in health matters”, he says. For Serrano, in addition to filing complaints with the ICC, it is necessary to mobilize the international media to understand violations committed in the pandemic, which would influence the judges. For Botelho, it is unlikely that a complaint will be accepted by the court, but they may reflect on boycotts and economic sanctions against Brazil. Marina Araújo says she is skeptical about these possibilities of criminalization and pressure, something that says that it should only be sought when resources are exhausted in the country. Paths for accountability Common crimes Representations to the PGR indicate evidence of the following offenses in the Penal Code: Art. 132: Danger to the life or health of others; penalty: imprisonment, from three months to one year, if the fact does not constitute a more serious crime. Art. 257: subtraction, concealment or destruction of rescue material; penalty: imprisonment, from two to five years, and fine Art. 268: infraction of preventive sanitary measure; penalty: detention, from one month to one year, and fine Art. 315: irregular use of public funds or income; penalty: detention, from one to three months, or fine Art. 319: malfeasance; penalty: imprisonment, from three months to one year, and a fine. The process: The president must be denounced by the PGR. However, in order to be judged by the Supreme Court, the impeachment of the Chamber is required. 342 votes are required for the process to be forwarded to the Senate. There, 41 votes are required to open the case and 54 for the impediment. International complaint The President can only be criminalized individually for his conduct by the ICC

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