Forgiveness or amnesty: what are Bolsonaro’s bets in the political environment to reverse the sentence

Forgiveness or amnesty: what are Bolsonaro’s bets in the political environment to reverse the sentence


The two options for the reversal of the judicial sanction are foreseen in the Constitution, but can be brought to the Supreme and repealed by the Court


Summary

Bolsonaro bets on presidential forgiveness or on the creation of a law of amnesty by the congress to reverse the beliefs, but both measures can face questions and be reversed by the Stf.

In his discussion to deny the judicial forgiveness to Mauro Cid, sentenced to two years in prison, Minister Alexandre de Moraes mentioned three legal provisions that could be used to grant a legal Cleam, that is: forgive the crimes of a convicted and revokes his sanctions. They are judicial forgiveness, amnesty and criminal forgiveness.

Each form of mercy can be used by one of the three powers of the Republic. The first option, the judicial forgiveness, comes from the same judiciary during an investigation or trial. In the case of the plot of the coup, the road was suggested by the prosecutor in negotiating the rewarding report of Cid as a counterpart of the information provided by the former orders of Bolsonaro.

Moraes, however, evaluated that the relevant crimes attributed to Lieutenant Colonel would be an improper use of constitutional resources. “I remove the judicial forgiveness because, of course, just as there is no forgiveness – and the Supreme Court has already decided – and just as the amnesty is not because they are species of the same kind, there is no judicial forgiveness by the judiciary against democracy,” said the minister, during his vote in the session that deliberated the pennies of the defenders of the defenders.

What is the amnesty

Amnesty is a collective act, granted by the National Congress by law, which forgives some crimes committed in a specific period or in exceptional situations. Unlike the individual measures, the amnesty has a wide range and can cover thousands of people at the same time. Its effect is to extinguish punishment, as if the crime had never existed, canceling the criminal consequences of the infringement.

Historically, the amnesty has been applied in political contexts, as in the period of redemocratization, when he benefited from the persecuted prisoners and politicians. It can also be extended to common crimes, provided that it is approved by the legislator. The instrument, therefore, depends on the political decision and usually generates an intense debate on its reach and limits.

To be granted, the amnesty must be processed as a bill to the congress, through the analysis of the two legislative houses and, later, the presidential sanction. Since it is a measure of wide repercussion, it usually mobilizes public opinion and dividing parliamentarians. Once approved, it has a definitive character and does not require the individual acceptance of the beneficiary.

“Politically, the amnesty is stronger than forgiveness because it comes from all over the congress, while forgiveness comes only from the President of the Republic,” says Rafael Paiva, a criminal lawyer and a professor of criminal law.

What is forgiveness

The presidential forgiveness is an act of exclusive competence of the President of the Republic, of an individual or collective nature and which forgives the penalty of the prisoners in full or partially. Unlike Amnesty, forgiveness does not cancel the crime committed, but extinguishes the penalty or reduces its fulfillment.

In practice, forgiveness can be granted in two ways: widely, through decrees that establish general criteria of application – as traditionally occur in the “Christmas forgiveness” so called – or individually, in specific cases. An example was the forgiveness given by the then president Jair Bolsonaro at the then vice Daniel Silveira, arrested for inciting attacks on the institutions. The decision does not depend on the approval of the legislator, but must comply with the constitutional limits and can be subject to judicial analysis, in case of questions about the abuse of power. This was the case of Silveira, who knocked down forgiveness from the Stf and returned to prison.

The concession process provides for the editing of a presidential decree, which can be motivated by humanitarian, political or administrative reasons. Normally, the Ministry of Justice elaborates studies and recommendations on who can benefit, but the last word depends on the president.

How the options should take place

Both cases can be judicial if the STF is activated. Both the forgiveness of Amnesty and Bolsonaro must be interrogated in court, by parts or legal institutions. Paiva, however, believes that the removal of a law of amnesty by the Supreme Court would cause a profound institutional crisis.

“What will happen in the supreme is unknown. I have heard declarations of the members of the Supreme saying that they would fatally declare the unconstitutional amnesty, and others saying that it is a decision of Parliament,” says the lawyer.

According to him, the Constitution does not prohibit the amnesty in any case. “The Supreme should take a very big walk to explain why,” he said in an interview with Earth.

Source: Terra

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