RIO DE JANEIRO, BRAZIL – The arrest in flagrante delicto on Tuesday of deputy Daniel Silveira accused of promoting anti-constitutional ideologies, hate speech against Supreme Court justices and support for the AI-5, has not met with consensus among jurists and criminal attorneys interviewed by Estadão.
The Constitution only permits the arrest of a federal deputy when committing, “in flagrante delicto”, a crime where bail is not available. Justice Moraes’s order based the arrest on certain unbailable crimes in the 1985 National Security Law, passed by the military dictatorship.
The “permanent infraction” argument used by Federal Supreme Court (STF) Justice Alexandre de Moraes to order the deputy’s arrest is being contested and dividing the legal community.
Conrado Gontijo, PhD in Criminal Law from the University of São Paulo (USP), said he disagreed with Moraes’ position on the issue of “in flagrante”, based on the fact that the video remains online.
“Technically, there is no ‘in flagrante’ in this specific case. Preventive detention, for instance, seems to be more compatible with the arguments contained in the justice’s decision,” he said. “In any case, the assumption is very serious: unacceptable attacks on the STF, which reacted by enforcing an arrest of questionable legality.”
For PUC-SP (Pontifical Catholic University of São Paulo) Constitutional Law professor Pedro Serrano, the grounds for the arrest warrant in flagrante delicto are unconstitutional. “I don’t see any sense in referring to a permanent crime by means of a video. Otherwise, anyone could be arrested a year from now for a video posted today. From the content perspective, the deputy did commit a crime.”
Attorney and professor at FGV-SP (Getúlio Vargas Foundation of São Paulo), Celso Vilardi also argued that there is no flagrante in the Bolsonarist deputy’s case. “It is not possible to determine from the video when it was recorded. As it was put, any internet posting could lead to an in flagrante arrest. The arrest could have been ordered as preventive, as justice Alexandre de Moraes had already done with respect to Sara Giromini’s case,” he said.
“Now, parliamentary immunity does not guarantee the right to threaten anyone. It exists so that legislators may state their positions regarding issues of legislative debate, even if such positions are unpleasant.”
Professor and director of the São Paulo University Law School, Floriano de Azevedo Marques said, however, that the flagrante “was defined by the statute.” “Freedom of expression is not a free pass for committing crimes. Parliamentary immunity does not allow one to commit crimes.”
Source: O Estado de S. Paulo