the presidential pardon

Image: Juan Pablo Serrano Arenas
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By DOMINGOS FERNANDES DA ROCHA JUNIOR*

Every day Bolsonaro advances a little more, tarnishing democracy

According to statements by Bolsonaro himself, just yesterday – April 20, 2020 – on the occasion of the trial by the STF of the dep. Daniel Silveira, the deputy was already pardoned.

The individual pardon, known as “grace”, is an institute of criminal law provided for in the Constitution (Art. 84, XII) and disciplined by the Penal Execution Law (Law nº 7.210/84) in art. 188 to 192. This is a pardon granted by the President of the Republic.

Although there is the legal provision of the institution in question, some points must be observed:

1 – The application of the institute in question must be subsequent to the final and unappealable decision of the criminal conviction. The institute is applied to the one who is in the exercise of the sentence. Daniel Silveira's case did not become final, it is still possible to appeal (Declaration Embargo). The judgment of the judgment of April 20, 2022 was not even published, and therefore, one should never speak of an individual pardon at that time;

2 – Having overcome the previous aspect, the individual pardon may be provoked by petition of the convict, on the initiative of the Public Prosecutor's Office, the Penitentiary Council, or the administrative authority. This is what expressly governs art. 188 of the Penal Execution Law. In the case in question, none of those legitimated requested the benefit, the initiative already came from the President of the Republic, who would be the final authority to decide or not to grant the request made;

3 – The pardon request must be analyzed by the Penitentiary Council, which in the end will draw up an opinion on the case. After that, the request will be forwarded to the Ministry of Justice, and in the end to the President of the Republic, at which time it is opportune for the appreciation of the Attorney General of the Republic or the Union Attorney.

4 – Once the Individual Pardon Decree has been published – which has already occurred – it will be forwarded to the criminal enforcement judge.

That said, it is once again evidenced that the President of the Republic has breached constitutional limits. Bolsonaro, once again, opens an institutional crisis, directly confronting the judgment carried out by the STF.

Bolsonaro achieves here not the execution of the sentence, but the process, considering that there is no need to talk about the execution of the sentence yet. What he does is attack the judgment of the highest Court of the Republic. Therefore, such decree is manifestly unconstitutional.

And, even though Daniel Silveira was already under the regime of execution of the sentence imposed, it is important to note that the Penitentiary Council is not a body at the service of the President of the Republic. As much as the directors have been appointed by this in the last two years, it is necessary to highlight the Precedent 6 of the Council itself, which reads: "Grace, full or partial, is a measure of an exceptional nature, destined to reward extraordinary meritorious acts practiced by the convict in the fulfillment of his reprimand or even to meet personal conditions of a special nature, as well as to correct mistakes in the application of the sentence or eventual judicial errors. Thus, as there is no error to be repaired or excess in the dosimetry of the sentence in the condemnation imposed on the re-educated person and the conduct does not reveal anything exceptional to be awarded, it is unfeasible to grant the benefit of grace”.

That is, according to the summary of the Penitentiary Council itself, Daniel Silveira would not be the person to be reached by the Individual Pardon Institute. He would not fulfill the conditions for receiving the Institute of “Graça”.

The questions of law about the manifestly unconstitutional decree issued by Bolsonaro are presented here, and do not need a great deal of effort to be overcome. The institutional crisis and the breaking of democratic limits, yes!

Every day Bolsonaro advances a little more, tarnishing democracy. Every day a new limit is reached, meanwhile important institutions such as the Attorney General's Office succumb. The inertia of institutions in the face of Bolsonaro's advances has immeasurable effects for tomorrow. In such a way that it is impossible to predict which new limit will be broken and tolerated.

It would not be an exaggeration to warn of the consequences of a possible second term for Bolsonaro in the face of an increase in his power in the face of everything that has been tolerated. While its legislative base supports it unconditionally in exchange for being able to continue sipping all possible public resources, which have now been protected by “non-disclosure transparency (Secret Budget)”, if not, by “transparency in a hundred years”.

Stopping Bolsonaro is not only the duty of citizens, but it is imperatively the duty of institutions. These need to signal their democratic maturity by drawing the lines of boundaries that cannot be compromised or broken. This inaction cannot be tolerated. Bolsonaro cannot be erected as an autocrat.

*Domingos Fernandes da Rocha Junior is a lawyer.

 

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