Pedro Serrano is someone who could never be described as a supporter of Bolsonarism.
Respected jurist, professor of Constitutional Law at PUC-SP and doctor in State Law, he became known as one of the most influential voices of the left in the national legal environment.
Yesterday, he signed an article entitled “Keeping Anderson Torres in prison is anticipating possible punishment”. The text, published in the online version of Folha in collaboration with lawyer Fernando Hideo Lacerda, has had great repercussions among lawyers, and also in the courts.
In it, Serrano says that maintaining the prison of the former Secretary of Public Security of the Federal District and former Minister of Justice in the Bolsonaro government is an “act of barbarism incompatible with constitutional criminal law” for distorting the foundations of preventive detention and anticipating the punishment of the accused. Torres is suspected of colluding in the January 8 attacks.
In his article, the jurist also says that the decision to keep the former secretary in jail violates the fundamental right to silence and the guarantee of non-self-incrimination —the latter consecrated from the American case Miranda v. one of the most heard lines in crime movies: “You have the right to remain silent: anything you say can be used against you in court”).
What Serrano, by the way, did not say is that the decision in question was taken by Alexandre de Moraes, the minister of the Federal Supreme Court whose actions have long been causing a deaf embarrassment, even among his peers.
Shielded by the self-assigned mission of preserving threatened democracy at any cost, Moraes was applauded when he removed the governor of the Federal District, Ibaneis Rocha, from office, without this request having been made by any investigative body.
In the same way, many people thought it was nice when the minister — against the instructions of the Public Prosecutor’s Office — decided to keep pretrial detainees under investigation for the January 8 attacks; when it determined the suspension of social media profiles for threats to STF ministers; and when it authorized a search and seizure operation at the homes of businessmen who had had (private) conversations with a coup-like content on WhatsApp.
Apart from Bolsonarist screams and other barely audible voices, no one dared to challenge the minister on these occasions. Moraes tests limits, finds no obstacles and moves on.
Last week, he rejected the request for the release of Anderson Torres, claiming that the former secretary had taken almost a hundred days to give the police the passwords to access his cell phone and emails — an argument that, for Serrano and many people who preferred not to say that loudly invokes the practice of torture. In this case, executed by a judge who imposes the suffering of prison on the investigated person because he refuses to produce evidence against himself.
Standing up for the rights of someone like Anderson Torres, as Pedro Serrano and Fernando Hideo Lacerda did, is a task that requires courage. But not doing so corresponds to putting into practice the doctrine of the Criminal Law of the Enemy, by the German Gunther Jakobs, according to which guarantees and fundamental rights should not be extended to those whom the State considers enemies.
The argument that the emergency threat to the democratic rule of law would justify the extrapolation of legal limits ignores the historical fact that it is precisely in times of crisis that the most dangerous precedents are created.
And if the crises pass, the precedents remain.
Brazil has already had bad experiences with saviors of the homeland. No need for justices.
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