To configure the threat crime, the promise needs to have the potential to cause concrete and achievable harm. Incitement to crime, on the other hand, requires reference to specific offenses.
Thus, the 12th Federal Criminal Court of the Federal District rejected a complaint against pocket blogger Allan dos Santos. The Federal Public Ministry had accused him of practicing both actions against Justice Luís Roberto Barroso, of the Federal Supreme Court.
In November of last year, the accused posted on his YouTube channel, Free Tuesday, a video titled “Barroso is a digital militiaman”, in which he challenged the magistrate to face him in person. On the occasion, Allan said: “Take off the fingerprint, if you’ve got balls! Remove the f**** from the fingerprint, and grow! Name the oxen! Once and for all Barroso, become a man! Remove the f**** from the fingerprint digital! And put only terrorists! So you can see what we do with you. It’s time to talk rude about this p****!”.
Judge Pollyanna Kelly Maciel Medeiros Martins Alves, however, understood that the complaint would not have just cause. She considered that Allan’s speeches would be just “improper and bravado”, without seriousness, motivated only by the political moment.
There would also be no possibility of fulfilling the promise, since the minister has a team of “qualified security guards” and an intelligence sector “equally prepared”. Besides, the blogger doesn’t even live in Brazil.
The magistrate also found that the victim himself did not show “indispensable” fear of the alleged threat. “A magistrate cannot and should not be easily intimidated, especially if he is from the highest court of justice in this country,” he said.
As for the accusation of incitement to crime, the judge understood that it was not demonstrated which crime Allan would have encouraged against the STF minister. According to her, a generic instigation would be “vague” and “ineffective”.
“The rudeness of the accused, although revealing a fierce mood, does not constitute solid threats, much less does it translate into incitement to criminal practices against the alleged victim,” he concluded.
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