In recent days, with the political news getting closer and closer to the police pages when the subject is the surroundings of Jair Bolsonaro (PL), many people began to ask themselves: will the former president be arrested?
On social networks and in cell phone messaging, there are already those who place bets on when this could happen. In turn, there is also information about supporters of the ineligible today mobilizing to prevent him from turning himself in. That’s because some supposedly well-informed people guarantee that the arrest warrant is already being drawn up.
The situation, however, is not so simple. The desire of citizens who, for example, opposed death policies in the covid-19 pandemic should not guide decisions. You have to follow the legal process.
Brasil de Fato spoke with experts in the field of law to better understand the scenario.
The jurist Patrick Mariano, doctor in theory of the state and philosophy of law at the University of São Paulo (USP), recalls that the lawsuits against the retired captain have nuances that go beyond the bias of law, as they are also crossed by elements of politics.
“From a political point of view, I think an arrest of the former president would be complicated, because that could bring institutional instability to the point of unifying elements of the extreme right, both nationally and internationally, at a time that is still delicate. I would understand how something that brings an inherent risk to the institutional stability that was achieved”, he recalls.
The decision on an arrest or not, however, must follow what the legislation provides. Mariano points out that he did not have access to the case files involving Bolsonaro and his surroundings, but the information published by the press so far shows that there are no elements that indicate that he could be arrested. That would be an alternative, for example, if it became clear that he tried to interfere in the process, eliminating evidence or disrupting the investigations.
“Common sense has been conditioned to understand the criminal procedure through the Lava Jato method, especially in recent years: a search and seizure, a denunciation and the next step is prison. This common sense, this method of understanding the law is wrong. We need to get rid of this logic of thinking”, he points out.
In conversation with Brasil de Fato, professor of criminal procedure Rubens Casara did not mention specific cases related to Bolsonaro, but clarified relevant points of legislation and law in the country. He recalls, for example, that the existence of evidence of occurrence and beginnings of authorship of a crime are not enough for the decree of an arrest before any citizen is definitively judged.
Casara also cited the modus operandi that became the practice of Operation Lava Jato, which was notable for arrests decreed outside the legal limits, even without evidence of authorship of crimes or concrete data that indicated the need for arrest. As much as the desire to see “enemies” or political opponents arrested is great, this should not guide the processes.
“Brazilians have naturalized the existence of illegal and unnecessary prisons. It is necessary to think about the issue of arresting anyone, including those we don’t like, outside the standards established by authoritarian rationalities, such as Lava Jato”, he warns.
The expert recalls that the time for judicial decisions is different from the time for politics. Arrests must be immediate as long as the criteria for doing so are met. After the final judgment of a conviction or in case of risks to the process (as in the cases already mentioned, leaks or destruction of evidence).
“The immediacy of politics is not adequate for judicial decisions. Whenever the judge decides based on guidelines and the time of the political game, there is a risk of violations of legality”, concludes Casara.
Editing: Rodrigo Chagas
