The Steep Road to Amnesty: Legal Hurdles, Contentious Sentences, and Shadow.

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          The prospect of amnesty for those imprisoned following Brazil's January 8th, 2023 attacks on government buildings ignites a fierce political and legal debate. While voices call for clemency and national reconciliation, a complex labyrinth of legal barriers, the severity of sentences compared to national legislation, allegations of political intimidation, and tragic deaths in custody cast a dark shadow over any widespread pardon. Achieving amnesty approval in the National Congress faces an arduous battle, marked by deep divisions and fundamental questions regarding constitutionality and justice.

The Steep Road to Amnesty: Legal Hurdles, Contentious Sentences, and the Shadow of Intimidation in Brazil's January 8th Events.

             Legal and Constitutional Hurdles to Amnesty:

        The primary obstacle to amnesty lies in the nature of the crimes for which the defendants are being prosecuted and convicted. As previously detailed, the core accusations center on attacking the Democratic State of Law (articles 359-L and 359-M of the Penal Code), armed criminal association (article 288, sole paragraph, Penal Code), qualified damage to public property (article 163, sole paragraph, III, Penal Code), and deterioration of listed heritage (article 62, I, Law No. 9.605/98).

         Brazil's Amnesty Law of 1979 (Law No. 6.683/79), while broad in its scope for political crimes during the military dictatorship, explicitly prohibits amnesty for terrorism, assault, kidnapping, and personal attacks (Article 1, § 1). Although the January 8th events do not directly fit the legal definition of terrorism under Law No. 13.260/2016, the legal interpretation of whether the attempt to violently abolish the Democratic State of Law and instigate a coup d'état equates to the gravity of non-amnestied crimes is pivotal. Esteemed jurists like Carlos Ayres Britto, former Justice of the Supreme Federal Court (STF), have argued in interviews and op-eds that granting amnesty for acts aimed at subverting the constitutional order would set a dangerous precedent and disrespect democracy [Source: Interviews and opinion pieces by Carlos Ayres Britto published in various media outlets].

          Furthermore, the Federal Constitution (Article 5, XLIII) establishes the unbailability and imprescriptibility of heinous crimes, torture, illicit trafficking of narcotics and related drugs, terrorism, and those defined as crimes against the constitutional order and the Democratic State of Law. While the January 8th events are not explicitly listed as heinous crimes under Law No. 8.072/90, the severity and potential damage to democracy raise a debate about the possibility of equating them or enacting future legislation to that effect. Bills to include crimes against the Democratic State of Law in the list of heinous crimes are currently under consideration in the National Congress, indicating the perception of some parliamentarians regarding the seriousness of these actions [Source: Monitoring of bills on the websites of the Chamber of Deputies and the Federal Senate].

Severe Sentences and Brazilian Legislation:

          A central argument of amnesty proponents lies in the assertion that the sentences imposed on those involved in the January 8th events are excessively harsh compared to Brazilian legislation for other offenses. Convictions handed down by the STF have varied significantly, with some exceeding 17 years of imprisonment [Source: Monitoring of STF decisions in the January 8th cases, reported by various news outlets such as G1, Folha de S.Paulo, and Estadão].

          Comparisons with sentences for crimes like simple homicide (6 to 20 years) or aggravated robbery (4 to 10 years) are frequently used to illustrate this disparity. Defenders argue that, while the January 8th events were serious, the absence of direct lethal violence by the majority of the accused does not justify such lengthy sentences, especially considering the large number of individuals involved and the need for individualization of conduct [Source: Statements from defense lawyers and opinion articles in legal portals such as Conjur and Migalhas].

The Alleged Attempt to "Chill" the Right and Deaths in Custody:

           Allegations that the arrests and convictions related to January 8th aim to intimidate the right-wing movement in Brazil also circulate widely. Critics argue that the manner in which pre-trial detentions were carried out, with a large number of arrests and reports of precarious prison conditions, would have a chilling effect on participation in future political demonstrations [Source: Accounts from prisoners and their families reported by independent media outlets and on social media, as well as statements from opposition parliamentarians].

          The tragic deaths of some prisoners while in custody, such as businessman Cleriston Pereira da Cunha, raise serious questions about detention conditions and the State's responsibility for the physical integrity of those detained [Source: News reports by CNN Brasil, Correio Braziliense, and other outlets, based on forensic reports and defense information]. These events have been used as a humanitarian argument in favor of reviewing the detentions and considering amnesty.

Divergences Between STF Accusations, the Constitution, and Criminal Law:

           Certain aspects of the STF's accusations and decisions have generated debate within legal circles regarding their conformity with the Constitution and principles of Criminal Law:

          * Broadened Theory of Command Responsibility: The application of a broadened theory of command responsibility to hold individuals accountable who did not directly participate in the invasion but were in encampments or incited the acts has been questioned under the principle of subjective criminal responsibility, which requires proof of individual intent and participation in the crime [Source: Articles by jurists such as Lenio Streck and Gustavo Badaró in their columns and legal works].

         * Individualization of Sentencing: Criticisms have also arisen regarding the alleged lack of individualization of conduct in some indictments and convictions, with large groups being held accountable homogeneously without detailing the specific role of each accused in the acts of violence and vandalism [Source: Statements from defense lawyers and legal opinions].

          * Proportionality of Pre-Trial Detention: The lengthy duration of pre-trial detentions, in some cases exceeding a year without trial, has been pointed out as a potential violation of the principle of the presumption of innocence and the right to a trial within a reasonable time, guaranteed by the Federal Constitution [Source: Reports from human rights organizations such as Conectas and the National Mechanism for the Prevention and Combat of Torture].

           In conclusion, the path to amnesty for those imprisoned following Brazil's January 8th events is steep and fraught with legal, political, and humanitarian obstacles. The severity of the sentences, the allegations of political motivation behind the arrests, and the tragic deaths in custody add layers of complexity to an already polarized debate. The final decision on amnesty in the National Congress will require a delicate balance between the pursuit of reconciliation, the defense of the democratic order, and respect for constitutional principles and fundamental rights. The shadow of intimidation and the pursuit of justice for those who died in custody will undoubtedly influence this decision at a crucial moment for the history of civil security and democracy in Brazil

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