Two weights and two measures? Why Temer testified in writing and Bolsonaro will have to go in person

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STF and Reuters

On the morning of this Friday (September 11), the Federal Supreme Court (STF) issued a decision by Minister Celso de Mello determining that President Jair Bolsonaro (without a party) must appear in person to testify in an investigation that is being processed in the Cut.

The investigation investigates the accusations of the former Minister of Justice Sergio Moro, according to which Bolsonaro tried to intervene in the Federal Police to protect his family and allies from the investigations.

Celso de Mello’s decision angered Bolsonaro’s supporters.

Several of them recalled that, in 2017, the same STF allowed the then president Michel Temer (MDB) to give written testimony in one of several of the investigations against him; in that case, the investigation was for alleged corruption in the port sector.

If that was the case with former President Temer, why couldn’t Bolsonaro now benefit from the same rule and also give written testimony?

According to the criminal lawyers heard by BBC News Brazil, the rule has always been the face-to-face testimony of those investigated, including the Presidents of the Republic. In 2017, Fachin made an exception for Michel Temer.

He allowed the emedebista to answer the questions in writing because neither the Federal Prosecutor’s Office nor the others investigated in the process were interested in having the deposition be in person.

In Bolsonaro’s case, Celso de Mello understood that it was important to give Sergio Moro’s lawyers the right to question the president, the former Lava Jato judge is also investigated in the investigation.

As for Bolsonaro, the Public Ministry had also agreed with the written testimony: the Attorney General, Augusto Aras, defended Bolsonaro’s right to give written testimony, which should not happen.

Now it is up to the Federal Police to determine the date, time and place of the testimony of the President of the Republic.

According to the investigation, Bolsonaro has the right to remain silent. As the STF investigation is public, it is likely that the president’s testimony will also be made public.

The interpretation of the STF remains the same, says criminalist

Strictly speaking, the understanding of the STF has been the same since at least 2000.

“I don’t think there has been a change of understanding (of the STF), and I will explain why. The Criminal Procedure Code is very clear in giving some high-level authorities the possibility of, as witnesses, giving testimony by It is an option that is it gives them, ”says criminal lawyer and professor Fernando Castelo Branco.

“Both Michel Temer (in 2017) and Bolsonaro are not in the condition of witnesses. But why then was Michel able to provide written evidence at that time? At that time, Minister Fachin recognized and acknowledged the validity and gave effect to the Code of Conduct . Criminal Procedure, “he says.

“But since the Public Ministry did not object, and no one at that time objected to (Temer) giving his testimony in writing, he (Fachin) exceptionally authorized it,” says Castelo Branco, who is a professor of criminal proceedings in the Law Course. at the Pontifical Catholic University of São Paulo (PUC-SP).

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Valter Campanato / Agência Brasil

In the dispatch on Temer, Fachin cites a previous decision by Celso de Mello himself – from the year 2000 – to reaffirm the understanding that only witnesses have the right to respond in writing.

With regard to the President of the Republic, Michel Miguel Elias Temer Lulia, it is known that, in the opinion of the Supreme Federal Court, ‘the exception established for witnesses does not extend to the investigated or the accused, who, regardless of their position functional that they occupy, they must appear before the competent authority on the date, time and place that they unilaterally designate, ‘”wrote Fachin at the time.

“There is no prerogative of the President of the Republic that authorizes him to be heard in writing. He has this prerogative if he is a witness in any case. What is the situation in question, neither Temer nor Bolsonaro”, reinforces the lawyer. the criminalist Fernanda de Almeida Carneiro.

In the decision on Bolsonaro, Celso de Mello highlighted the need to preserve the right of the other investigated in the investigation (Sergio Moro) to question the President of the Republic on the matter.

“The President of the Republic, having the status of being investigated, does not have any of the prerogatives (proper and exclusive of those who only appear as witnesses or victims) referred to in article 221 (of the Criminal Procedure Code), it means that the interrogation of the Head of State, in the case that is now under examination, must follow the normal interrogation procedure, ”Celso de Mello wrote in the decision on Bolsonaro.

Rule must guarantee the rights of those investigated, says criminalist

The interpretation of the STF was necessary because the Criminal Procedure Code (CPP) allows some authorities to give written testimony when they are witnesses.

But the CPP does not have an explicit rule in case these authorities are investigated. And not all criminal lawyers heard by BBC News Brazil agree with this interpretation.

“It is necessary to look broadly at the guarantees of those investigated, and not restrictively. It means that, especially when there are functional prerogatives (derived from the position), the guarantees of those investigated cannot be restricted. They must be expanded, because this it is the spirit of the constitutional text ”, says criminal lawyer Thiago Turbay, partner of Turbay Boaventura Advogados.

There (in the Criminal Procedure Code) the word ‘inquiry’ (testimony) is mentioned. The text did not discriminate whether it would be investigated or not. And when it is investigated, then there must be even more guarantees, “says Turbay.

“But there are more things. The Internal Regulations of the STF and Law 8.038 (of 1990, which establishes rules for investigations in the STJ and the STF) also bring this prerogative related to the investigation. So, if we have these rules that say that the police investigation must be organized to broaden guarantees (…), I cannot interpret this in a restrictive way ”, adds Turbay.

What is Bolsonaro accused of?

Sergio Moro -who is also being investigated in the investigation- has already declared before the Federal Police.

He spoke with the PF for almost nine hours at the Superintendency of the corporation in Curitiba (PR), in May of this year.

Upon leaving the post of Minister of Justice, Moro accused Bolsonaro of wanting to remove the former director general of the Federal Police Maurício Valeixo from office to protect his family and allies from the investigations.

Bolsonaro denies that that was the intention.

In his farewell speech to the government, Moro said that the president has complained more than once about the need to have someone in charge of the PF to give him information.

“The president told me, more than once, that he wanted to have a contact person that he could call, who could gather information, gather intelligence reports,” Moro said at the time, considering that it is not appropriate for the president. Republic has direct access to this type of information.

On the same day he resigned, Moro forwarded excerpts of a conversation between himself and Bolsonaro to Bolsonaro on a messaging app. In the image, the president sends a link to a report that the PF is “in the queue” of 10 to 12 Bolsonarista deputies.

“Another reason for the exchange,” Bolsonaro said, referring to the institution’s change of direction.

Shortly after Moro’s farewell speech, Jair Bolsonaro made a statement at the Planalto Palace to counter the accusations made by the former minister.

In his speech, Bolsonaro reaffirmed that he wanted to change the command of the Federal Police, but said that the changes were necessary because the PF would be leaving him misinformed.

Additionally, the president said he feared for the safety of his family.

With Sergio Moro, the Federal Police also have neglected the investigations into the attack with a knife that he suffered in Juiz de Fora (MG), during the electoral campaign.

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