By MARCELO AITH*
The decree of the general's preventive detention is in accordance with the applicable legal and constitutional provisions
The Federal Police arrested General Walter Braga Netto, former Defense Minister (March 14 to April 2021) and former candidate for vice president of Jair Bolsonaro's 2022 ticket, on Saturday morning (December 2022). Braga Netto is the target of an investigation into a coup plot. The PF also searched his residence in Rio de Janeiro. The preventive arrest and search and seizure warrants were issued by Supreme Court Justice Alexandre de Moraes, based on alleged obstruction of the investigations.
According to the investigation, Braga Netto allegedly contacted Mauro Cid to obtain information about confidential data from the plea bargain. With access to this data, the general allegedly sought to interfere in the investigations. He is one of those indicted in the investigation into the attempted coup that occurred on January 8, 2023.
Is the arrest justified?
Preventive detention is a precautionary measure provided for in the Code of Criminal Procedure (CPP), designed to guarantee public and economic order, criminal investigation or the application of criminal law. It is an exception to the principle of the presumption of innocence and, therefore, its decree requires strict compliance with legal and constitutional requirements.
Article 312 of the Criminal Procedure Code establishes that preventive detention may be ordered in the following cases: (i) Guarantee of Public and Economic Order: When there is a risk that the accused will continue to commit crimes, harming social peace or the economy; (ii) Convenience of the Criminal Investigation: To ensure that the criminal proceedings do not suffer undue interference; (iii) Ensure the Application of Criminal Law: When there is a risk of escape that makes the application of the sentence unfeasible.
The 1988 Federal Constitution, in article 5, item LXI, determines that no one shall be arrested except in flagrante delicto or by written and substantiated order of a competent judicial authority. Thus, preventive detention must be duly justified, respecting the fundamental rights and guarantees of the accused, and be applied only when other precautionary measures are not sufficient.
Obstruction of evidentiary proceedings is one of the most important grounds for ordering pretrial detention. It occurs when the person under investigation tries to hinder or prevent the collection of evidence by threatening witnesses or destroying evidence. This behavior compromises not only the progress of the case, but the functioning of justice itself.
To justify pre-trial detention, the risk to the evidentiary investigation must be contemporary, that is, based on current and concrete evidence. Contemporaneity ensures the proportionality and adequacy of the measure to the context of the facts.
The ordering of preventive detention also depends on the impossibility of applying alternative precautionary measures, as provided for in article 282, § 6, combined with article 319 of the CPP. Therefore, preventive detention is an extreme measure and must be used with caution and strict observance of legal and constitutional requirements.
According to the STF decision, “the evidence brought to the case by the police authority reveals the effective action of those investigated to obstruct ongoing investigations, by obtaining confidential data within the scope of a plea bargain agreement, the discovery of which was only possible due to the performance of search and seizure measures previously authorized by this Supreme Court”.
Furthermore, documents were seized at the headquarters of the Liberal Party, indicating that those under investigation had pressured Mauro Cid, through his father, to obtain information about the content of his statements and to prevent his participation in the crimes from being fully revealed.
Another relevant point highlighted by the PF is the existence of robust evidence that Braga Netto contributed to the planning and execution of a coup d'état, which did not materialize due to external factors. The investigation also found that the general had handed over more than 100 thousand reais in a wine bag to finance actions of the group known as “Kids Pretos”, which was allegedly part of the coup scheme.
The requirements for the preventive detention of General Braga Netto are present in the specific case. Both the fumus committed delicti (evidence of authorship and materiality) and the periculum in mora (risk of continued criminal activity or interference in investigations) were exhaustively demonstrated, according to the evidence presented by the Federal Police.
Therefore, the decree of preventive detention, based on the need to ensure criminal investigation and avoid obstruction of justice, is in accordance with the applicable legal and constitutional provisions.
*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.
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