Flávio's defeat makes it difficult to release Jair Bolsonaro via pardon or judicial means

Former president Jair Bolsonaro (PL) remains under house arrest after being convicted by the STF (Supreme Federal Court), on September 11, 2025, for a failed coup attempt. The rapporteur, Minister Alexandre de Moraes, understood that Bolsonaro led a series of coordinated actions to remain in power.

The facts included conspiracy and embarrassment of members of the Armed Forces to join the project, electoral disinformation to discredit the process, a plan to assassinate political opponents and vandalism of public property.

The candidacy of his son Flávio Bolsonaro (PL-RJ) increased expectations for the former president's release. The defeat to Lula (PT) on Sunday (25), on the other hand, cools movements and reduces the expectation of freedom. The senator left Brazil, which also casts doubt on his participation in negotiations on the topic.

On the other hand, the result in the elections opened the way for the PL, the party with the largest bench and which is home to a large part of the Bolsonarists, to elect names on the board of directors of the Houses. To stay in office, the current president of the Senate, Davi Alcolumbre (União Brasil-AP), articulates a way to release Bolsonaro and please the party's senators.

The Bolsonarist base in the National Congress had already articulated the Dosimetry PL, which changes criminal execution rules to reduce the jail time of those convicted of the coup attempt. The analysis of the constitutionality of the new rules is at a standstill in the STF.

In the Judiciary, Jair Bolsonaro's defense filed a request for criminal review with the Supreme Court. The action serves to review a conviction if new facts arise or problems in the conduct of the process are identified later.

Minister Kassio Nunes Marques, appointed by the former president himself, is the rapporteur. On Wednesday (28), he gave ten days for the PGR (Attorney General's Office) to comment on the request.

At the STF: criminal review

The defense filed two actions. The first, from May, alleges restriction of defense. The second, from the end of September, claims that there are new facts and new evidence. The new evidence is a contracted expert opinion that points out errors in the collection and storage of digital evidence. The document supports an injunction request for Bolsonaro to await trial in freedom.

Folha revealed on October 5 that Kassio was considering releasing the former president by injunction. Two days later, the office said it would only analyze the case after the second round, to avoid interference in the election. Experts believe that a release injunction would only be appropriate in the event of a gross judicial error, which, in general, they do not see in Bolsonaro's case.

The possibility of the former president's release due to a monocratic decision by Kassio emerged after the results of the first round of the 2026 elections, on Sunday (5). Flávio finished ahead of Lula, but the PT member reversed the situation and was re-elected for a fourth term as head of the Planalto Palace.

If Flávio had been elected, Kassio's injunction was the main bet for his father to "climb the Planalto ramp next door", as he promised.

In government: pardon or grace

Alcolumbre told allies that he will look for Lula to defend a humanitarian pardon for Bolsonaro. The topic was not discussed in the first conversation between the two, on Monday (26), after the vote.

A pardon is an act of clemency that depends solely on the president. According to allies, Alcolumbre will wait for the election to pass and the consequences of Flávio's escape before taking the proposal forward. A presidential pardon was the family's main bet with Flávio's election.

According to experts, there is jurisprudence in the STF that crimes against the democratic rule of law, for which Bolsonaro was convicted, do not admit pardon or amnesty. This could throw the ball back to the Judiciary.

In 2023, the court had already overturned the individual pardon granted by Bolsonaro, then president, to former deputy Daniel Silveira, convicted of threats to STF ministers. Even validated, the measure only extinguishes the criminal effects and maintains ineligibility.

In Congress: dosimetry and amnesty

If Lula refuses the pardon, Alcolumbre told congressmen that he will work to approve an amnesty in Congress. In exchange, he wants the right to abandon the pressure for the impeachment of ministers of the Federal Supreme Court and support his re-election as head of the House.

Rogério Marinho (PL-RN) and Tereza Cristina (PP-MS) are tipped to run for president of the Senate against Alcolumbre, betting on the majority elected by the right. The opposition denies agreement. "I don't think we have an agreement to exchange lives for power. It's disgusting," Senator Damares Alves (Republicans-DF) told the Panel.

The first step, according to an ally of Alcolumbre, would be for the STF to validate the Dosimetry Law. Promulgated by him on May 8, after Lula's veto was overturned, Moraes suspended the text the following day.

The law prevents combining the penalties for coup d'état and violent abolition of the democratic rule of law in the same context. It is more severe, with an increase, and the progression of the regime becomes faster.

For Bolsonaro, the change would reduce the time under a closed regime from 6 to 8 years to between 2 years and 4 months and 4 years and 2 months, depending on the interpretation. The law also reduces penalties for crimes committed in crowds.

Moraes, chosen rapporteur of the actions against the law, awaits the plenary to judge the constitutionality of the text. The court's tendency is to validate the norm, with messages against undemocratic acts.

How is Bolsonaro serving his sentence?

Even with the conviction in September 2025, the sentence of 27 years and three months in prison starts from August 4th of that year. On that date, the former president was placed under house arrest for violating the ban on the use of social media.

The calculation for serving a sentence follows a detraction rule, also considering the period in which a defendant was imprisoned before being definitively convicted.

On November 22, Bolsonaro lost the benefit of house arrest when he once again failed to comply with precautionary measures. On that occasion, he violated the electronic ankle bracelet with a soldering iron. For health reasons, he returned home on March 24, 2026, where he remains today.

Moraes exceptionally granted humanitarian house arrest due to medical problems. In July, the rapporteur once again confirmed the benefit for an indefinite period. Despite not being in a prison, the former president is serving his sentence in a closed regime.