The Justice of the Federal Supreme Court (STF) Alexandre de Moraes granted on Monday and Tuesday (27 and 28) provisional freedom to 137 people arrested after the depredation acts on January 8 at the Three Powers headquarters in Brasília.
The measure was taken after weeks of pressure from right-wing politicians and lawyers against alleged arbitrary actions taken by the minister.
According to the STF, 803 people remain in custody, and 603 have been released to answer to the process in freedom, following preventive measures.
The 137 people who benefited from Moraes’ decision must wear electronic anklets and are forbidden to leave the country.
They will also be obliged to be in home confinement at night and on weekends.
The order also orders these people to report to the Execution Court of their home district within 24 hours and then to appear weekly, every Monday.
On January 8, many protesters acted out of a misguided interpretation that the Constitution would provide a legal basis for intervention in the election results.
But, the action resulted in illegal acts of vandalism, violence, and attempted disruption of the functioning of institutions.
ARRESTS CONTRAVENED THE CODE OF CRIMINAL PROCEDURE
The protesters’ lawyers said that Moraes had committed legal excesses by keeping the suspects in jail for so long.
Among the alleged arbitrariness of the Justice is the lack of access of the defense to the investigation; generic accusations without considering the individual conduct of each investigated; lack of clear criteria to define who is released and who remains in prison; and lack of perspective on where, how and when each case will be analyzed in Court.
The Attorney General’s Office (PGR) voiced some of these complaints in manifestations sent to Moraes since the beginning of February.
The body, which is responsible for denouncing the protesters, has already said that most of them should not remain in pre-trial detention since, if convicted, they will get sentences that do not lead to a closed regime.
If they will probably not be imprisoned after being judged, it would not make sense to keep them in jail before, when they have not yet been sentenced.
This is what the Code of Criminal Procedure determines, in its article 313, according to which preventive imprisonment is allowed for felonious crimes punishable by a maximum sentence of more than four years.
For most of the more than 1,500 people arrested on January 8 and 9, the PGR has filed charges for crimes whose sentences add up to less time: incitement to crime, with a maximum sentence of 6 months’ detention, and criminal association, with a maximum sentence of 3 years imprisonment.
According to the PGR, these people would have been arrested only for being camped at the Army HQ, present at the Esplanade of the Ministries, or the Three Powers HQ on the day of the invasions, but without having entered the STF, the Congress and the Planalto Palace.
“There is no evidence, up to this moment, of a direct attack committed by them against the headquarters of the Three Powers. If they had wanted to, they could have joined the violent group of demonstrators who, with their own hands, tried to abolish the democratic state and depose the legitimately constituted government.”
“They did not do so, remaining near the headquarters or, even if they had gone to the Praça dos Três Poderes, they did not enter and vandalize the National Congress, the Planalto Palace, and the Federal Supreme Court,” said several statements to the STF, sub-prosecutor Carlos Frederico Santos, assigned to the Attorney General’s Office to handle the case.
PREVENTIVE CUSTODY WOULD ONLY APPLY TO THOSE WHO INVADED AND DEPREDATED
Preventive custody, the PGR believes, should only be used for those who invaded the buildings and depredated their facilities; for these, more serious crimes would be committed with violence and severe threat, with sentences that can exceed 30 years in prison if convicted.
Against them, the Prosecutor General’s Office has filed charges for the crimes of armed criminal association; violent abolition of the democratic rule of law; coup d’état; aggravated damage against federal property, and deterioration of a heritage site.
Even so, many lawyers present other reasons for ending preventive detention.
They say that in the custody hearing, held in the days following the arrest, the judges summoned by Moraes to verify the legality of the arrest in flagrante delicto failed to consider whether there was a risk to public order with the release.
They say this evaluation was random and left to Moraes himself. For some, he granted freedom; for others, he did not.
This is what says the lawyer Anderson Cortez, who defends about 20 people investigated by Moraes.
“There are no grounds to keep many people in prison. Some were more involved because they had more evidence in social networks, with incitement to invasion.”
“Others didn’t even have social networks, like a 59-year-old retired and cardiopathic client. She was from Minas Gerais and lived in Espírito Santo.”
“She was arrested on the 9th near the HQ. They asked her to get on a bus saying she would be taken to the bus station in Brasília to leave, but she was arrested,” he said.
Cortez says that none of the prison revocation requests were analyzed by Moraes.
He considers that the concentration of cases with the minister is another problem.
The accumulation of hundreds of cases would not allow a faster analysis of the appeals in favor of the release.
What he will do is also unpredictable: whether he will send all the cases to the first instance since almost all the investigated people have no privileged forum; or keep the issues in the STF.
RIGHT-WING POLITICIANS VISIT JAIL AND THE STF
In addition to lawsuits and public protests by the prisoners’ lawyers, right-wing politicians have been pressuring Moraes in recent weeks.
Some have visited the prison sites, such as Congressman Nikolas Ferreira (PL-MG) and Senators Cleitinho (Republicans-MG) and Magno Malta (PL-ES), all newly elected and close allies of former president Jair Bolsonaro.
Last week, Magno Malta was at the STF with newly elected senators Hamilton Mourão (Republicans-RS) and Rogério Marinho (PL-RN) for a meeting with the Court’s president, Rosa Weber.
They asked that each prisoner’s conduct be evaluated individually, especially to release those with lighter charges, such as those in the Army HQ.
“We deplore what happened, but the fact is that there is a need, and we had the Minister’s sympathy, for there to be individualization of offenses so that those who should not be released and those caught in the act can have the proper imputation.”
“It is necessary to strengthen Brazilian democracy, and we hope that with a possible meeting with Moraes over the next few days, we will have this individualization to separate the wheat from the chaff,” said Marinho at the end of the meeting with Rosa Weber.
STF SAYS THAT FREEDOM IS PROVISIONAL AND THAT INVESTIGATIONS ARE NOT OVER
According to information released by the STF late Tuesday morning (28), the freedom granted to the accused is provisional because “investigations have not pointed them as financiers or main executors.”
Thus, the released defendants will still be subject to sanctions, such as passport cancellation and firearm license suspension.
Finally, the Justice determined the agencies’ notification to comply with the preventive measures.
In the specific analysis of cases, Moraes evaluated that most released suspects have the primary defendant status or are minor children.
According to the rules of the STF, the accused were notified to present their defense within 15 days.
Parliamentarians heard by Gazeta do Povo said the news about releasing prisoners began circulating behind the scenes in the federal capital on Monday night.
Last Saturday, Moraes defined that the prisoners arrested on January 9 could receive visits according to general rules of the local prison system, provided in Ordinance 008/2016 of the Court of Criminal Executions (VEP) of the Federal District, contemplating exceptional situations.
OF THE 1,406 PRISONERS IN JANUARY, 803 REMAIN IN CUSTODY
On January 20, Alexandre de Moraes concluded the analysis of the situation of prisoners involved in destroying public buildings of the Three Powers headquarters.
Hearing minutes were analyzed for 1,406 detainees.
Of these, 942 people had their arrests converted into preventive custody.
Another 464 were granted provisional freedom through preventive measures, being allowed to respond to the process by wearing an electronic ankle bracelet, among other criteria.
More than 300 were released in the first batch of releases on January 20.
The argument for the preventive arrests was that it was necessary to guarantee public order and the effectiveness of the investigations.
The Justice pointed to evidence of crimes of terrorism, criminal association, violent abolition of the democratic state of law, coup d’état, threat, persecution, and incitement to crime.
Concerning those prisoners released in the first batch, the Justice considered that, although there were strong indications of authorship in the participation of crimes, no evidence of violence, invasion of buildings, and depredation of public property had been obtained.
Therefore, he understood it possible to replace the arrest with preventive measures.
With information from Gazeta do Povo