Jair Bolsonaro must be arrested now

Image: Miriele Vidotti
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By PEDRO BENEDITO MACIEL NETO*

Bolsonaro is a risk not only to the investigation, but to the country

“Bolsonaro must be arrested in the name of national security and democracy”
(Leonardo Boff).
“Art. 311. At any stage of the police investigation or criminal proceedings, preventive detention may be ordered by the judge, at the request of the Public Prosecutor's Office, the plaintiff or assistant, or on behalf of the police authority.”
(Criminal Procedure Code).

I believe that Jair Bolsonaro should be preventively arrested as quickly as possible, it is up to one of those who, according to article 311 of the Criminal Procedure Code, to request the State Judge.

There are always doubts about the legal hypotheses in which prisons are appropriate and what types of prison are, I ask permission from the great criminalists to write about the subject.

Prison species

The term “prison”, a common noun, in addition to designating a physical place, indicates that the subject is deprived of his freedom and can be classified as: (a) “prison-penalty”, which is determined by the defendant's final sentence by the crime committed or in (b) “prison without penalty”, one that is not established in the final criminal sentence and may be imprisonment; (b.1) administrative; (b.2) disciplinary; (b.3) civil and (b.4) precautionary procedure, divided into imprisonment: (b.4.a) temporary (Law No. 7.960/89) and (b.4.b) preventive detention, provided for in articles 311 316 of the Criminal Procedure Code.

We can understand that “Procedural arrest” is that which results from (i) flagrant arrest (articles 301 to 310 of the CPP) or (ii) judicial determination, due to the action of criminal prosecution or criminal proceedings, with the assumptions of precautionary measure .

As imprisonment is something very serious, there is no discretion in its determination, to grant any precautionary measure, a suitable motivation is required, and must be supported by concrete aspects of the criminal case, a mere subjective judgment of convenience is not enough.

The fulfillment of the requirements for preventive detention, especially under the argument of guaranteeing public order, must be outlined in a comprehensive and detailed manner by the authority that decrees it, enabling the desired social control, but guaranteeing the full defense of the accused.

In this way, they are essential to precautionarily segregate any individual, once the materiality of the crime and the existence of strong evidence of its authorship are verified, the fumus commissi delictAnd periculum libertatis, when there is a concrete danger arising from the accused's state of freedom.

There are conditions for decreeing the preventive detention of Jair Bolsonaro and all public agents who were present at the meeting, the video of which has been circulating in full.

Preventive detention

Preventive detention, a type of precautionary detention of a procedural nature, is applicable at any stage of the police investigation or criminal investigation.

With the advent of Law No. 12.964/19, preventive detention can no longer be decreed ex officio by the judge, and can only be decreed at the request of the Public Prosecutor's Office, the prosecutor's assistant or on behalf of the police authority and is expressly provided for in Chapter III, articles 311 to 316 of the CPP.

It is understood that preventive detention is a measure restricting freedom determined by the Judge, at any stage of the investigation or criminal investigation, as a precautionary measure, either to guarantee the eventual execution of the sentence, or to preserve public or economic order, or for convenience of criminal investigation.

Jair Bolsonaro must be arrested preventively to guarantee public order and economic order; to prevent the defendant from continuing to commit crimes against these orders, causing irreversible damage to society, in the case of Jair Bolsonaro he commits crimes against the Rule of Law on a daily basis; arrest may be ordered for the convenience of criminal investigation, that is, to prevent the person from hindering the process or investigation, threatening witnesses or destroying evidence and to ensure the application of criminal law: in this case, preventive detention occurs to prevent the defendant escapes or the impossibility of applying the sentence determined by the Court.

What are they saying out there?

Serious lawyers assess that there were no apparent excesses in the Federal Police's operation against former president Jair Bolsonaro and his allies, on the contrary, the police, the MPF and the STF have been zealous guardians of the Law and Due Process, despite the fact that The evidence gathered by the PF would immediately justify the arrest of Jair Bolsonaro and everyone present at the ministerial meeting whose contents were recently publicized.

I don't know if Jair Bolsonaro's arrest was requested, what we do know is that Alexandre de Moraes, from the STF, issued four arrest warrants, 33 search and seizure warrants and 48 other measures, such as the collection of passports and prohibition of communication between those under investigation. ; the decision is well founded.

Because of this zeal, we can say that the arrests were ordered based on the risk of damage to the investigations and at the request of the PF; Alexandre de Moraes ordered the arrest of three former military advisors from Planalto, the evidence of authorship and materiality of crimes of attempted coup and violent abolition of the democratic rule of law are present.

For now, in the case of the former president, the retention of his passport is a less serious measure than prison, but it seemed timid to me, as Jair Bolsonaro is a risk not only to the investigation, but to the country, which is why I wish that he should have his arrest ordered as quickly as possible, as there are plenty of reasons for doing so.

These are my impressions, which I submit to the censorship of true criminalists.

*Pedro Benedito Maciel Neto He is a lawyer and holds a master's degree in civil procedure from PUC SP. author of Reflections on the study of law (Comedy). [https://amzn.to/4bBeQG3]


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