The dissenting vote of Justice Luiz Fux , of the Supreme Federal Court (STF), in the trial investigating an attempted coup d'état , gave political momentum to the defense of former President Jair Bolsonaro (PL), who is betting on international courts to try to overturn a possible conviction. For experts consulted by Estadão, the divergence reinforces the Bolsonaro narrative, but has little chance of translating into practical effect.

When requesting the annulment of the process and arguing that the Supreme Court is not competent to judge the case, still in the analysis of the preliminary issues, Fux cited the Pact of San José de Costa Rica, the main human rights treaty in the Americas and of which Brazil is a signatory.

The agreement ensures due process, conducted by a competent, independent and impartial judge, as well as the right to appeal the conviction to a higher court.

‘Political persecution’

Bolsonaro's lawyers have already indicated that they intend to sue international courts, alleging"political persecution" by the Brazilian judiciary. The defense maintains that the former president is the target of a biased Supreme Court process and uses this argument to reinforce the narrative of a lack of impartiality.

For lawyer Rodrigo Faucz, who works in international courts, Fux's dissent gives ammunition to the defense by reopening the debate on the double degree of jurisdiction, a principle according to which every conviction must be reviewed by a higher court.

Faucz points out that, as a rule, the defense must exhaust domestic remedies before petitioning the Inter-American Commission, which may or may not take the case to the Inter-American Court of Human Rights (IACHR).

If the complaint is upheld, he explains, the Court's decision is binding and should, in theory, be enforced by the Supreme Court."This is the point that can have legal basis: the decision is mandatory and binding," he states.

In this case, he says, the STF would have to refer the case to the Plenary, reopening a new discussion on the merits with the participation of ministers who are not part of the First Chamber.

The lawyer also emphasizes that the treaty directs that criminal laws be interpreted in favor of the defense, a logic that directly connects to infringement appeals—an appeal that takes the case to the full court and reopens the analysis of the merits. Currently, however, the Supreme Federal Court requires two acquittal votes to admit an appeal to the panels, a restrictive interpretation that, he says, contradicts the pact.

For Henderson Fürst, professor of constitutional law at IDP, Fux's mention of the pact gives"rhetorical breathing room" to the defense, but the legal chances of reversal are slim."The Court doesn't function as a fourth instance to reevaluate facts and evidence: it examines rights violations," he explains.

He also considers that inter-American jurisprudence recognizes the right to appeal to a higher court, but allows exceptions in countries that provide for privileged jurisdiction, such as Brazil.

Along the same lines, Adriana Cecilio, professor of Constitutional Law, assesses that the initiative is unlikely to have a practical effect capable of altering the judgment, although she recognizes its political weight.