Rule of law: Bolsonaro conviction signals Brazil’s democratic resilience
Header image: Supreme Federal Court Palace, Brasília. CC BY-SA 3.0/Wikipedia
On 11 September, Brazil’s Supreme Federal Court convicted former president Jair Bolsonaro of plotting a coup, sentencing him to 27 years and three months in prison.
After hearing more than 70 witnesses, the court found the former Brazilian leader and seven of his allies guilty on multiple counts of conspiring to overthrow the government in January 2023 after losing the 2022 election to Luiz Inácio Lula da Silva.
One justice voted to acquit the 70-year-old, who governed Brazil from January 2019 to December 2022, but the remaining members of the five-justice panel found him guilty and handed down the lengthy sentence just hours later.
The justices cited evidence of a plot to assassinate Lula and his running mate, Geraldo Alckim, as well as Alexandre de Moraes – the Supreme Federal Court justice presiding over Bolsonaro’s trial.
The conspiracy ultimately failed to win the backing of Brazil’s military and Lula was sworn in as scheduled on 1 January 2023. But, a week later, on 8 January, thousands of Bolsonaro’s supporters stormed and vandalised government buildings in Praça dos Três Poderes in the capital, Brasília. The incident, which led to around 1,500 arrests by the security forces, has been compared to the US Capitol attack on 6 January 2021.
The conviction conveys the public message that there will be no impunity for anyone who conspires and attempts to abolish the democratic regime in Brazil
Carlos Roberto Siqueira Castro
Senior partner, Siqueira Castro, Rio de Janeiro
As well as Bolsonaro, seven high-ranking officials, including his former aide-de-camp and former intelligence and justice ministers, were found guilty of an attempted coup d'état, armed criminal conspiracy, attempted abolition of the democratic rule of law, violent destruction of public property and damage to protected national heritage sites during the riots.
In Brazil, at least, few have been surprised by the verdict, says Oscar Vilhena Vieira, Dean of the School of Law of the Getulio Vargas Foundation in São Paulo. In 2021, Brazil approved new legislation that incorporated into the Penal Code the crimes of attempting to abolish the Democratic Rule of Law and attempting a coup d’état, replacing the old National Security Law. ‘Bolsonaro and his supporters were tried under this law. The invasion and destruction of the Praça dos Três Poderes on 8 January 2023 – echoing the storming of the US Capitol on 6 January 2021 – was the culmination of a series of actions aimed at suppressing Brazilian democracy,’ says Vilhena Vieira.
Carlos Roberto Siqueira Castro, senior partner at Siqueira Castro in Rio de Janeiro, believes the verdict sends a clear message about Brazil’s democracy and its institutions. ‘The conviction of this senior leadership of the criminal network demonstrates the strength and effectiveness of Brazil’s 1988 democratic Constitution and conveys the public message that there will be no impunity for anyone who conspires and attempts to abolish the democratic regime in Brazil,’ he says. ‘In the end, in this tragic episode, democracy and the Constitution prevailed.’
The trial has highlighted the differing relationship between rule of law and democracy in Brazil and the US. It also exposed growing frictions between the US and Brazil administrations. In the run-up to proceedings, President Trump claimed the trial a ‘witch hunt’ against Bolsonaro and imposed 50 per cent tariffs on Brazilian goods. The US Treasury Department later slapped sanctions and visa restrictions on Moraes, and other justices involved in the trial under the auspices of the Global Magnitsky Act. Less than two weeks after the verdict, the Treasury said it had also sanctioned Moraes’ wife, and would sanction more individuals ‘if necessary’.
Matt Kaiser, Co-Chair of the IBA Criminal Law Committee, says such actions are perturbing. ‘US sanctions and political consequences, tariff consequences or trade consequences because of a domestic criminal trial are potentially pretty dangerous,’ he says. ‘It does seem of a piece with the sanctioning of judges at the ICC. That's a dangerous thing that we shouldn't be doing for rule of law reasons.’
Although Vilhena Vieira believes the verdict highlights the resilience of Brazil’s judiciary to withstand foreign attacks, he is troubled that the trial revealed some disturbing truths about some sections of Brazil’s political society. ‘What was most concerning,’ he says, ‘was that sectors of the Brazilian right and far-right aligned themselves with a foreign power to undermine Brazilian sovereignty, as well as multiple sectors of the national economy.’
These tensions come at a febrile time ahead of Brazil’s presidential election in 2026. Prior to this trial, Bolsonaro was already barred from running for president until 2030, following a 2023 ruling by the Superior Electoral Court that found him guilty of making false claims ahead of the 2022 election that Brazil’s voting systems were vulnerable to hacking and fraud. In the latest trial, the Supreme Federal Court justices extended this ban until 2060 – eight years after the end of his sentence.
Bolsonaro’s legal team have said they will appeal the verdict. However, any appeal must be conducted via a procedure known as embargos de declaração – a process that has ‘very narrow admissibility requirements’ and will not materially alter the judgment, according to Siqueira Castro. ‘It is intended solely to clarify possible omissions, ambiguities, or contradictions in the ruling,’ he says. If it goes ahead, the appeal process is expected to be completed by the end of the year.
Heading into a new election year, the trial’s verdict will force Brazil’s right-wing and far-right political parties and supporters to reorganise, says Vilhena Vieira. ‘[They] must decide whether to follow new leadership committed to institutions and democracy or to remain loyal to Bolsonaro’s anti-institutional radicalism,’ he says. ‘In other words, it will be up to conservative voters in Brazil to decide whether we will have a competitive democratic right-wing or whether they will continue to seek another radical leader.’