Protests on the roads against the victory of Luiz Inácio Lula da Silva (PT) in the presidential elections can be typified as a crime against democratic institutions and lead to punishments for activists, police and authorities, for actions or negligence, according to legal experts.
Penalties for participating in acts against the government, democracy and the rule of law can reach 12 years in prison, excluding possible convictions for practicing violence or other crimes.
Road police officers, for example, can be prosecuted for not fulfilling their duty, since one of their obligations is to ensure the fluidity of the roads.
“If the police officer is at the post, sees the road being blocked and does nothing, he can be prosecuted for not fulfilling his obligations,” explains Alberto Rollo, a lawyer specializing in electoral law. “Police officers don’t have to wait for a court order to act in this case.”
The proceedings can be carried out administratively, by the police officers themselves, or in the criminal sphere, at the request of the Public Ministry. Administrative penalties can include warnings, suspension and exoneration.
If it is proven that the acts had a coup intention, such as disrupting the democratic process, the penalties for those involved can range from 4 to 12 years in prison, based on article 359-M of the Penal Code, amended in 2021, which provides for penalties against whoever tries to subvert the institutional order or tries to depose, through violence or serious threat, a legitimately constituted government.
“There is an elected government, which is yet to be formed, but this transition process cannot be stopped,” says Flávio de Leão Bastos, a professor of constitutional law at Mackenzie University.
“Public servants who attempt against the State itself commit a serious violation of the Public Servant Statute. And the military violate two sacred principles: hierarchy and discipline, and can be the target of prosecutions according to military law”, analyzes Bastos.
Officials in elective positions who attack the democratic process or defend coup actions can also be prosecuted. Federal deputy Carla Zambelli (PL-SP), posted a message of encouragement to truck drivers in the early hours of Monday (31). “Congratulations, truckers. Stay, don’t be discouraged”, published the deputy on a social network.
The report sought out Zambelli via the press office, but did not receive a response until the publication of this report.
“Deputies also need to follow the laws. But in their case, an eventual process would have to be initiated by the PGR (Attorney General’s Office), within the scope of the STF (Supreme Federal Court)”, explains Rollo.
Parliamentarians who defend coup actions can also be judged by colleagues, in bodies such as the Ethics Council, for attacking democracy, and could lose their mandates if the majority of other deputies agreed with this.
“Inflating acts of radicalization against the rule of law can be considered incompatible with the decorum of the office. And if public resources are used for this, there can be an act of administrative impropriety”, points out Bastos.
“However, the process in the Chamber would refer only to the current terms, which end at the beginning of 2023. Re-elected deputies would not have the next term affected, unless they lost their political rights”, ponders Rollo.
The lawyer estimates that processes capable of generating the loss of political rights would take one to two years to complete. With this, the accused could remain in office until the middle of the new term.
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