Letter to Flávio violates restrictions and could take Bolsonaro back to the closed regime, experts say

For them, the former president violated their communication restriction, limited even through third parties. The infraction could result in Bolsonaro returning to the closed regime or the intensification of current prohibitions.

This Monday (13), Alexandre de Moraes, from the STF (Supreme Federal Court), suspended Flávio Bolsonaro's visits to his father for 90 days, and demanded explanations about the case from the former president's defense. The minister, who is rapporteur for Bolsonaro's criminal execution, also indicated that the act may have constituted early electoral propaganda.

Folha tried to contact Bolsonaro's defense, who did not respond.

The minister's action comes two days after Flávio Bolsonaro read a letter signed by his father, who is under house arrest serving a sentence for an attempted coup, on social media.

According to Lucas Miranda, doctor in law from UFMG (Federal University of Minas Gerais), the episode could justify a revocation of house arrest.

He states that those convicted in court can communicate by letter, but that this right is regulated and mediated. "It is not an absolute right. A PCC prisoner cannot send a salve [communiqué to members of the faction]", explains Miranda.

According to him, prisoners in a closed regime usually have their correspondence supervised by a state agent. As Bolsonaro is not in prison, one solution would be to present the correspondence to the judge, through a lawyer, before forwarding it to the recipient. "The [prisoner's] letter is analyzed by the penitentiary system, and that seems to me to have not been done in the case of the former president."

The content of the correspondence also weighs heavily, says Miranda, since it was not personal in nature (addressed to his son or another family member), but was explicitly addressed to the Brazilian people.

For Miranda, although there are legal elements for revoking house arrest, the tendency is for Moraes to maintain the benefit, taking into account the political moment of the elections. "It shouldn't, but it always happens that the interpretation of law is at the mercy of social issues."

In the text, called "letter to Brazilians", the former president stated that Flávio is his candidate in the 2026 elections and a person of trust.

In addition to house arrest, Bolsonaro is under restrictions that prohibit him from using "cell phones, telephones or any other means of external communication", from using social media and from recording videos or audio, directly or through third parties.

When renewing the benefit of house arrest, on the 3rd, Moraes wrote in a decision that non-compliance with the rules would imply an "immediate return to the closed regime". Bolsonaro was imprisoned for more than four months at the Regional Superintendence of the Federal Police and in a room of the 19th Military Police Battalion of the Federal District, known as Papudinha.

According to Welington Arruda, master in law from IDP (Brazilian Institute of Education, Development and Research), a preliminary investigation is necessary to find out whether it was indeed Bolsonaro who wrote the letter and for what purpose.

If the apparent authorship and intention are verified, then the letter would violate the restrictions, Arruda understands. "Bolsonaro is not a free individual, he does not have the freedom to do what he wants. When there is an individual serving a sentence, he does not enjoy his freedoms. He can only do what the legislation and the judge allow."

Therefore, a possible consequence would be the revocation of house arrest.

According to Diego Nunes, law professor at UFSC (Federal University of Santa Catarina), there was, in theory, a violation of the precautionary measure.

According to him, the convict has the right to communicate with the outside world, but traditionally this letter circulates privately. "The letter, however, was not sent to the son, but addressed to the population."

One possibility, says Nunes, is that Moraes maintains home care, but worsens other restrictions, such as the scope of visits. This is because the reason that motivated the granting of house arrest remains, linked to the former president's health.

"Alexandre de Moraes' behavior in this case is trying to balance these two situations: on the one hand, a guy who resists complying with the measures. On the other, a factual issue, which is the issue of Bolsonaro's health."

The three experts believe that the temporary suspension of Flávio Bolsonaro's visits to his father makes sense, since they were used to violate court orders. Complicating the scenario, however, is the fact that Flávio also appears as the former president's lawyer, which would give him room, in Nunes' opinion, to challenge the ban through the OAB (Brazilian Bar Association).

Lucas Miranda adds that, although listed as a lawyer, it is likely that Flávio will not actively act in his father's defense, which can be argued by Moraes to maintain the restriction.

Folha de S.Paulo asked the presidential candidate's advisors whether he actually acts as his father's lawyer and whether he wanted to comment on the visiting restrictions, but received no response.

Amanda Cunha, a specialist in electoral law and one of the authors of the book "Direito Eleitoral Sancionador" (ed. Lumen Juris), considers that there was no express request for a vote in the letter, but says that the expression "the best option to rid Brazil of corruption" can be understood as an implicit, disguised request.

Therefore, she assesses that there is a margin for the act to constitute early electoral propaganda, although the probability is small. "It seems more like a call to mobilize supporters for the pre-candidacy and support for Flávio, which is permitted by legislation. The exaltation of qualities in a generic way is also permitted."

In a statement, Flávio Bolsonaro's pre-campaign lawyer Tracy Reinaldet stated that Moraes' decision is illegal and unconstitutional and that the team will take measures to reverse it, "always respecting the institutions".

"Since the proclamation of the 1988 Constitution, leaving a prisoner incommunicado has always been seen by the Federal Supreme Court as something unconstitutional. However, today's decision brings President Jair Bolsonaro closer to incommunicado," he says.