Is Jair Bolsonaro playing with your freedom?

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By MARCELO AITH*

The ex-president's accommodation at the headquarters of the Hungarian embassy, ​​located in Brazilian territory, sounds strange to say the least.

1.

The American newspaper The New York Times disclosed that former president Jair Bolsonaro spent two days at the Hungarian embassy. He remained at the location between the 12th and 14th of February, therefore, right after the search and seizure ordered by minister Alexandre de Moraes (08/02), in the middle of carnival. What did Jair Bolsonaro intend by staying at the embassy?

Your accommodation at the headquarters of the Hungarian embassy, ​​located in Brazilian territory, sounds strange to say the least. According to the images released, Jair Bolsonaro even takes his own pillow to sleep there. We cannot forget that the former president lives in Brasília, where the embassies of all other countries are based, which makes the situation narrated by the The New York Times.

On the other hand, the choice for the Hungarian embassy is not surprising, since the closeness between Jair Bolsonaro and Hungarian Prime Minister Viktor Orbán is unequivocal.

Proof of this, in addition to the mutual visits between politicians, it should be noted that the prime minister posted, on his social networks, a message of support for Jair Bolsonaro, on the day of the search and seizure (08/02), with the following saying: “An honest patriot. Keep fighting, Mr. President.”

It should be remembered that Minister Alexandre de Moraes' decision determined the surrender of the passports of those involved, including the former president, and prohibited them from leaving the country. By entering and staying at the embassy for two days, would Jair Bolsonaro have failed to comply with the precautionary measure other than preventive detention?

2.

To answer this question, one must understand the legal nature of the embassy.

Well then. In short, the embassy is the official representation of a government within the territory of another nation.

It is clear from the Vienna Convention on Diplomatic Relations of 1961, in its article 22, that: “(1) The locations of the Mission are inviolable. Agents of the accredited State will not be able to enter them without the consent of the Head of Mission. (2) The receiving State has a special obligation to take all appropriate measures to protect the premises of the Mission against any harm or damage and to avoid disturbances to the tranquility of the Mission or offenses to its dignity. (3) The Mission premises, its furniture and other assets located there, as well as the Mission's means of transport, may not be subject to search, requisition, embargo or enforcement measure.”

Therefore, the embassy is an inviolable place, and agents of the receiving state cannot enter its premises without the permission of the head of the diplomatic mission. However, technically, the embassy is not foreign territory.

Thus, in a preliminary analysis, Jair Bolsonaro did not fail to comply with Minister Alexandre de Moraes' determination, in that he did not leave Brazilian territory, given that the headquarters of the diplomatic mission does not constitute an extension of Hungary's territory.

However, despite it not being demonstrated that Jair Bolsonaro was absent from the country, his stay at the Hungarian embassy, ​​located in the same city as his residence, deserves to be analyzed “Cum grain salis".

By taking this unusual measure of staying, for two days, in a foreign embassy located in Brazilian territory, Jair Bolsonaro signals that he was seeking protection from an international ally, with the aim of evading possible preventive detention.

3.

Could the conduct of the former Brazilian head of state, in itself, result in the ordering of his preventive detention? To answer this question, it is necessary to examine the causes authorizing precautionary custody.

The rule governing preventive prisons establishes, as is common practice, that “it may be decreed as a guarantee of public order, economic order, for the convenience of criminal investigation or to ensure the application of criminal law, when there is proof of the existence of the crime and sufficient evidence of authorship and danger generated by the state of freedom of the accused”.

In fact, for the decree of preventive detention, the fumus committed delicti and the periculum libertatis, that is, proof of the materiality of the crime, sufficient evidence of authorship and the current danger generated by being free.

The facts attributed to the former president leave no doubt about the occurrence of the crimes under articles 359-L and 359-M of the Penal Code, in kind, as well as the presence of sufficient evidence of authorship. It is necessary to examine whether the former president could compromise the application of criminal law by fleeing the country or committing suicide in an embassy of an international ally. Ensure that the risk of escape must be based on concrete circumstances and cannot be assumed. It must be current, that is, the risk must be present, not based on past circumstances or future assumptions.

The dynamics of the facts – search and seizure on February 8th and accommodation at the Hungarian embassy between February 12th and 14th – indicate that Jair Bolsonaro intended to seek political asylum, which would prevent the immediate application of criminal law.

At that moment, the ordering of preventive detention was perfectly possible. However, upon leaving the headquarters of the Hungarian diplomatic mission, the risk of criminal law not being applied significantly reduced.

It is now necessary, with a look at the current moment, to measure, with stylistic precautions, whether there is a risk of Jair Bolsonaro evading the application of criminal law, by fleeing to another country or taking asylum at the embassy headquarters of a diplomatic mission .

To order preventive detention, in theory, the possibility of Jair Bolsonaro escaping must be evident. What is the current and concrete demonstration that the former president is on the verge of escaping the district of guilt? 

Apparently there is currently no risk in the former president remaining free. However, nothing prevents the Federal Police, in the face of other elements, from seeing a current and concrete risk for the application of criminal law with Jair Bolsonaro remaining free and representing preventive detention. Minister Alexandre de Moraes, in a decision handed down last Monday (March 25), ordered Jair Bolsonaro to clarify the reasons that led him to stay at the Hungarian embassy.

*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.


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