Moraes shuts down investigations against André Fernandes and Sílvia Waiãpi for acts of January 8

The Supreme Court Minister Alexandre de Moraes has decided to archive the investigations into the involvement of federal deputy André Fernandes (PL-CE) and former federal deputy Sílvia Waiãpi (PL-AP) in the events of January 8, 2023, which saw the invasion and destruction of the headquarters of Brazil's three branches of government in Brasília. This decision follows a request from the Office of the Attorney General (PGR), which concluded there was insufficient evidence to proceed with formal charges against either individual. The move comes after the Federal Police had initially identified potential criminal elements in both cases.

According to the official statement from the Supreme Court, Moraes emphasized that the Constitution grants the Public Prosecutor’s Office the authority to decide whether to bring charges or dismiss an investigation. In his ruling, he stated that since the PGR requested the case be archived within the legal timeframe, he accepted their position and approved the closure of the inquiry. The decision reflects a constitutional principle where the responsibility for initiating criminal proceedings lies solely with the Public Prosecutor’s Office.

The investigation involving André Fernandes was based on two posts made by the congressman shortly before the protests. On January 6, 2023, he posted on social media about an upcoming "first act against the Lula government," referring to the planned demonstrations. Then, on January 8, during the events, he shared an image of a damaged cabinet in the Supreme Court, adding the comment, "Who laughs will end up in prison."

In its final report, the Federal Police concluded that these actions could constitute the crime of incitement under Article 286 of the Brazilian Penal Code. It argued that the second post showed Fernandes aligning himself with the vandalism carried out by the crowd and reinforced the idea that the earlier call to action was connected to the events. However, the PGR took a different stance, asserting that the first post was a general reference to a demonstration against the government without any encouragement of criminal acts. They also noted that the second post merely repeated content already widely circulating online, making any link between the post and the actual violence speculative and unproven.

Similarly, the investigation into Sílvia Waiãpi began after she shared a video on January 8, 2023, accompanied by a message stating, "The people take over the Ministry Complex this Sunday. Power taken by the dissatisfied Brazilian people with the red government." The Federal Police assessed her conduct as potentially inciting violence and pointed out that, at the time, she had not yet been officially sworn in as a federal deputy, meaning she was not protected by parliamentary immunity.

However, the PGR argued that the video Waiãpi shared was not created by her but rather republished content that was already circulating on social media when the attacks were taking place. According to the PGR, her post simply reported on the anti-democratic acts that had already occurred on January 8, thus establishing no direct causal link between her actions and the criminal activities committed that day. Additionally, they found no prior posts from Waiãpi encouraging such behavior before January 8, further supporting the conclusion that there was no sufficient basis to continue the investigation.

Both inquiries were initiated in January 2023 at the request of the PGR, following orders from Moraes to investigate possible violations of the crimes of incitement and attempted violent abolition of the democratic state. With these decisions, the investigations have now been closed, although they can be reopened should new evidence emerge related to the incidents.

The closure of these investigations marks a significant moment in the ongoing legal scrutiny surrounding the events of January 8, 2023. While some individuals have faced charges and trials, others remain under review, highlighting the complex nature of determining legal accountability for those who participated in or supported the events. The decision by Moraes underscores the constitutional role of the Public Prosecutor’s Office in deciding whether to pursue criminal charges, reinforcing the separation of powers within Brazil's judicial system.