Brazil's Supreme Federal Tribunal (STF) voted 7 to 3 on Friday (25) to convict Eduardo Bolsonaro, a former federal deputy whose seat was revoked and the son of ex-president Jair Bolsonaro, of defaming Deputy Tabata Amaral. The majority set the penalty at one year of detention and a fine above 80,000 reais, according to news outlet g1.

The case began with a private criminal complaint Tabata filed in 2021. That year, Eduardo wrote on social media that her bill on the distribution of menstrual pads seemed designed to serve the lobby of a hygiene products manufacturer, and that the company's owner was the lawmaker's mentor and sponsor. The complaint went to the STF, which tries federal lawmakers.

The rapporteur's vote

Rapporteur Alexandre de Moraes found that the crime under article 139 of Brazil's Penal Code was made out. The provision punishes anyone who "defames someone, by imputing to them a fact offensive to their reputation". He cited two aggravating factors: the target was a public official acting in her duties, and the statements were spread on social media. Because Eduardo is, in the court's words, "in an uncertain and unknown location" and lives in the United States, Moraes refused to replace detention with alternative penalties, a substitution normally allowed in defamation cases.

"The disclosure made by the defendant [Eduardo] reveals the stratagem he employed, whose only purpose was to harm the honor of the complainant [Tabata Amaral], both in the public sphere, as a political agent, and in her private life, since the reach of the internet, as is well known, is enormous and has great power of proliferation", the justice said.

A 7-to-3 split

Justices Flávio Dino, Cármen Lúcia, Cristiano Zanin, Dias Toffoli and Gilmar Mendes joined Moraes in full. Court president Édson Fachin agreed on the conviction but diverged on how the sentence is served. In his view, detention can be replaced by alternative penalties. "Any unjustified noncompliance with a penalty restricting rights may lead, in the enforcement phase, to its conversion into deprivation of liberty", Fachin said, according to VEJA.

André Mendonça, who suspended the virtual plenary trial in April by asking for more time to review the case, voted to acquit. Luiz Fux and Kassio Nunes Marques sided with him. Mendonça argued that Eduardo's statements were part of political debate and were covered by parliamentary immunity.

"The record confirmed, in turn, that the statement concerned the political debate around the legislative proposal. There is no element that allows the conclusion that this controversy served as a mere pretext for a personal attack detached from the mandate", Mendonça said.

With the 7-to-3 tally, the rapporteur's position also prevailed on enforcement: detention will not be replaced with alternative penalties as long as Eduardo remains in an uncertain and unknown location. The trial, resumed after Mendonça's 90-day review period, ended on Friday. The case now moves to the enforcement phase, where the court will define how the sentence is served.