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In a unanimous decision, Plenary keeps arrest in the act of federal deputy Daniel Silveira (PSL-RJ)

02/17/2021

By unanimity (11X0), the Plenary of the Supreme Court of Brazil (STF) upheld the arrest of Congressman Daniel Silveira (PSL-RJ), ordered on Tuesday (16) by Justice Alexandre de Moraes, after releasing a video in which Silveira advocates anti-democratic measures, such as AI-5, and incites the adoption of violent measures against the life and safety of the justices of the STF, which constitutes a non-bailable crime. The decision was handed down in Inquiry (INQ) 4781, which investigates fraudulent news, slanderous accusations, and threats to the Court.

Prompt action

At the beginning of the trial, Justice Luiz Fux stated that it is the STF's responsibility to watch over the healthy functioning of Brazilian institutions, promoting democratic stability, stimulating the construction of a republican vision of the country and tirelessly seeking harmony among the Powers. "For this reason, the STF remains vigilant against any form of hostility to the institution," he said. "Offending authorities, beyond the limits allowed by freedom of expression, which we have enshrined in the STF, necessarily requires a prompt action by the Court."

Non-bailable crimes

In the decision and in his vote, the Justice Alexandre de Moraes pointed out that the parliamentary manifestations, through social media, affront the republican and democratic principles and the separation of powers, and constitute non-bailable crimes, not covered by parliamentary immunity. In addition to affecting the Justices of the STF, they constitute an illegal threat to the safety of its members and are intended to obstruct the exercise of the judiciary, especially the independence of the Judiciary and the maintenance of the democratic rule of law.

Parliamentary Immunity

The Justice pointed out that the manifestations in which Silveira calls for the removal, cassation and imprisonment of Justices, for not agreeing with the positions of the Court, are not compatible with parliamentary immunity. "Attacks against the institutions, against democracy and the rule of law do not constitute the exercise of parliamentary function," he said. "The material parliamentary immunity cannot be confused with impunity".

He also recalled that when the Federal Police was serving the arrest warrant, the deputy went to a room and, showing contempt for the institutions, recorded another video threatening members of the STF. Then, during the examinations required for his arrest, he allegedly committed a new crime, when he insulted a policewoman who asked him to wear a mask.

National Security Law

According to the Justice Alexandre, the conduct practiced by Silveira are provided, expressly, in the National Security Law (Law 7.170/1973), specifically in articles 17 (attempt to change, with the use of violence or serious threat, the order, the current regime or the rule of law), 18 (attempt to prevent, with the use of violence or serious threat, the free exercise of any of the powers of the Union or the states), 22, clauses I and IV (propaganda of violent or illegal processes to change the political or social order or any of the crimes under the law), 23, clauses I, II and IV (inciting subversion of the political or social order, animosity between the Armed Forces or between the Armed Forces and social classes or civil institutions, or the practice of any of the crimes provided by law) and 26 (slandering or defaming the president of the Republic, the Federal Senate, the House of Representatives, or the STF).

The rapporteur also pointed out that the Federal Constitution does not allow the propagation of ideas against the democratic and constitutional order, nor the holding of demonstrations (personal or on social medias) aimed at breaking the rule of law, the extinction of the constitutional stony clause of the separation of powers, or seeking the installation of arbitrary rule in Brazil.

"Thus, both the conduct and manifestations that have the clear purpose of controlling or even annihilating the strength of critical thinking, indispensable to the democratic regime, and those that intend to destroy it, along with its republican institutions, preaching violence, arbitrariness, disrespect for the separation of powers and fundamental rights, in short, pleading tyranny, arbitrariness, violence and the breakdown of republican principles, as verified by the criminal and inconsequential manifestations of that parliamentarian, are unconstitutional," he said.

Strong measures

The Justice recalled that the deputy is reiterating the criminal practice, because it is being investigated in police inquiry in the Supreme Court, at the request of the Attorney General (PGR) on the financing of anti-democratic acts (INQ 4828). According to him, in the face of these manifestations, it is essential "to adopt strong measures to prevent the perpetuation of the criminal actions of parliamentarian aiming to damage or expose to danger of damage the independence of the established powers and the democratic rule of law.

Mock manifestation

The dean of the STF, Justice Marco Aurélio, stated that he could never have expected such "acid, aggressive and cheap words regarding the institutions". In his understanding, it was essential to interrupt the criminal practice, and there is no doubt about the dangerousness of the prisoner and the need to preserve public order.

House of Representatives

The case will now be sent to the House of Representatives, to be decided by a majority vote of its members, on the maintenance of Daniel Silveira's imprisonment, according to the second paragraph of article 53 of the Federal Constitution.

Custody Hearing

In dispatch, Justice Alexandre de Moraes appointed a custody hearing for Silveira, by videoconference, for tomorrow (18), at 2:30 pm, to be held by instructor judge Aírton Vieira, from his office.

Read the full decision of Justice Alexandre de Moraes in which the arrest was decreed.

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