Two weights and two measures? Why Temer testified in writing and Bolsonaro will have to go in person

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 Two weights and two measures? Why Temer testified in writing and Bolsonaro will have to go in person


This Friday morning (9/11), the Federal Supreme Court (STF) issued a decision by Minister Celso de Mello determining that President Jair Bolsonaro (without a party) should appear in person to testify in an investigation pending in the Court.

The investigation investigates the accusations of former Justice Minister Sergio Moro, according to whom Bolsonaro allegedly tried to intervene in the Federal Police to protect his family and allies from investigations.

Celso de Mello’s decision angered Bolsonaro’s supporters.

Several of them recalled that, in 2017, the same STF allowed then President Michel Temer (MDB) to give written testimony in one of several of the inquiries against him – in that case, the investigation was about suspected corruption in the port sector.

If that was the case with former President Temer, why couldn’t Bolsonaro now benefit from the same rule and also give written testimony?

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According to criminal lawyers heard by BBC News Brasil, the rule has always been the face-to-face testimony of those investigated – including Presidents of the Republic. In 2017, Fachin made an exception for Michel Temer.

He let the emedebista answer the questions in writing because neither the Federal Prosecutor’s Office nor the others investigated in the process were interested in the deposition being in person.

In Bolsonaro’s case, Celso de Mello understood that it was important to give Sergio Moro’s lawyers the right to question the president – the former Lava Jato judge is also investigated in the investigation.

Regarding Bolsonaro, the Public Ministry had also agreed with the written testimony: the Attorney General of the Republic, Augusto Aras, defended Bolsonaro’s right to give written testimony, which should not happen.

Now, it is up to the Federal Police to determine the date, time and place of the testimony of the President of the Republic.

As investigated, Bolsonaro has the right to remain silent. As the STF inquiry is public, it is likely that the testimony of the president will also be made public.

STF interpretation follows the same, says criminalist

Strictly speaking, the STF’s understanding has been the same since at least 2000.

“I don’t think there has been a change in understanding (of the STF), and I will explain why. The Code of Criminal Procedure is very clear in providing for some high-level authorities the possibility, as witnesses, to give evidence by It is an option given to them “, says criminal lawyer and professor Fernando Castelo Branco.

“Both Michel Temer (in 2017) and Bolsonaro are not in the condition of witnesses. But why then was Michel able to provide written evidence at that time? At the time, Minister Fachin acknowledged and recognized the validity and gave validity to the Code of Conduct. Criminal Procedure, “he says.

“But, as the Public Prosecutor’s Office did not object, and nobody at that time opposed him (Temer) giving his testimony in writing, he (Fachin) exceptionally authorized this”, says Castelo Branco, who is a professor of criminal proceedings in Law course at the Pontifical Catholic University of São Paulo (PUC-SP).


Sergio Moro left the Bolsonaro government accusing the president of trying to interfere with the Federal Police


© Valter Campanato / Agência Brasil
Sergio Moro left the Bolsonaro government accusing the president of trying to interfere with the Federal Police


In the dispatch on Temer, Fachin cites an earlier decision by Celso de Mello himself – from 2000 – to reaffirm the understanding that only witnesses are entitled to respond in writing.

“As far as the President of the Republic, Michel Miguel Elias Temer Lulia is concerned, it is known that, in the understanding of the Supreme Federal Court, ‘the exception established for witnesses does not extend to either the investigated or the defendant, who, regardless of their functional position that they occupy, must appear before the competent authority on a date, time and place unilaterally designated by it ‘”, wrote Fachin at the time.

“There is no prerogative of the President of the Republic that authorizes him to be heard in writing. He holds this prerogative if he is a witness in any case. What is not the situation at issue, neither Temer nor Bolsonaro”, reinforces the lawyer criminalist Fernanda de Almeida Carneiro.

In the decision on Bolsonaro, Celso de Mello stressed the need to preserve the right of the other investigated in the investigation (Sergio Moro) to question the President of the Republic on the matter.

“The President of the Republic, for having the condition of investigated, does not have any of the prerogatives (proper and exclusive of those who only appear as witnesses or victims) referred to in article 221 (of the Code of Criminal Procedure), the mean that the interrogation of the Head of State, in the case now being examined, must observe the normal interrogation procedure “, wrote Celso de Mello in decision about Bolsonaro.

Rule should guarantee rights of the investigated, says criminalist

The interpretation of the STF was necessary because the Criminal Procedure Code (CPP) allows some authorities to give written testimony when they are witnesses.

But the CPP does not have an explicit rule in case these authorities are investigated. And not all criminal lawyers heard by BBC News Brasil agree with this interpretation.

“It is necessary to look broadly at the guarantees of the investigated, and not restrictively. It means that, especially when there are functional prerogatives (arising from the position), one cannot restrict the guarantees of the investigated. One must expand them, because this it is the spirit of the constitutional text “, says criminal lawyer Thiago Turbay, partner at Turbay Boaventura Advogados.

“There (in the Criminal Procedure Code) there is a mention of the word ‘inquiry’ (testimony). The text did not discriminate whether it would be investigated or not. And when it is investigated, then there must be more guarantees yet, “says Turbay.

“But there are more things. The Internal Regulations of the STF and Law 8.038 (of 1990, which establishes norms for investigations in the STJ and the STF) also bring this prerogative related to the inquiry. So, if we have these norms saying that the police inquiry must be organized in order to expand guarantees (…), I cannot interpret this restrictively “, adds Turbay.

What is Bolsonaro accused of?

Sergio Moro – who is also investigated in the investigation – has already testified to the Federal Police.

He spoke to the PF for almost nine straight hours at the corporation’s Superintendency in Curitiba (PR), in May this year.

Upon leaving the post of Minister of Justice, Moro accused Bolsonaro of wanting to remove former Federal Police director-general Maurício Valeixo from office to protect his family and allies from investigations.

Bolsonaro denies that this was the intention.

In his farewell speech to the government, Moro said that the president complained more than once about the need to have someone in charge of the PF who would pass him on. information.

“The president told me, more than once, that he wanted to have a contact person that he could call, that he could gather information, gather intelligence reports,” said Moro at the time, considering that it is not appropriate for the President Republic has direct access to this type of information.

On the same day that he resigned, Moro forwarded excerpts from a conversation between him and Bolsonaro to Bolsonaro on a messaging app. In the image, the president sends a link to a report according to which the PF is “on the tail” of 10 to 12 Bolsonarist deputies.

“Another reason for the exchange,” said Bolsonaro, referring to the change in the direction of the institution.

Right after Moro’s farewell speech, Jair Bolsonaro made a pronouncement at Planalto Palace to counter the accusations made by the former minister.

In his speech, Bolsonaro reaffirmed that he wanted to change the command of the Federal Police, but said the changes were necessary because the PF would be leaving him poorly informed.

In addition, the president said he feared for the safety of his family.

Under Sergio Moro, the Federal Police would also have neglected investigations into the knife attack he suffered in Juiz de Fora (MG), during the election campaign.

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