Bolsonaro’s defense ignores TCU and denies embezzlement with jewelry – 08/21/2023 – Politics

The defense of Jair Bolsonaro (PL) tries to remove the suspicion of embezzlement in the case of the sale of jewelry received from foreign authorities, stating that the act would be classified, at most, in an administrative infraction.

One of the hypotheses considered by the investigators, the crime of embezzlement consists of the act of appropriation, by a public official, of money, value or public or private property that he has in possession due to his position.

It is also configured when there is diversion of this good for one’s own benefit or for others. The penalty is from 2 to 12 years in prison, in addition to a fine.

The ex-president’s lawyers say that Bolsonaro had the right to sell the jewelry and only attribute a “mistake” or “misinformation” on the part of the Presidency’s advisory to the lack of prior communication about the intention of the former president.

The core of the defense’s argument lies in legislation from 1991, but it disregards the 2016 TCU (Union Court of Auditors) decision that established clearer and stricter rules in relation to gifts received by presidents.

Bolsonaro’s defense states that the decision of the court of accounts “does not deal with the alienation of assets from the private collection of public interest of the presidents”.

“Nor could it because the TCU cannot revoke a law passed in Congress that expressly creates the permissive of alienation and establishes hereditary rights over such assets”, he said in a note.

According to investigations by the Federal Police, Bolsonaro and his assistants took luxury items to the United States and offered them for sale there.

A lot of jewelry was offered on an auction site, but there were no interested parties. A Rolex watch was traded. Subsequently, the articles were rescued to be delivered to the Brazilian State by determination of the Court of Auditors.

The legislation provides for the disposal of items that make up the presidential collections, provided that certain formalities are met. For example, offering them to the Union, which has purchase preference for eventual incorporation into public assets.

Bolsonaro did not make any statement, as he told Sheet defense of the former president. “There was no prior communication to the Commission for the Memory of the Presidents of the Republic, due to some mistake or misinformation by the Presidency’s advisory”, he stated.

“However, this is a mere irregularity of an administrative nature and that does not convert the private good into public, so that there is no possibility, not even in theory, of being regarded as an object of embezzlement.”

Bolsonaro’s defense understands that the luxury items belong to Bolsonaro and that he had legal protection to dispose of them as he saw fit. It sustains this line of argument based on a law and a presidential decree that defined rules on the subject.

Law 8.394/1991, from the Fernando Collor government, deals with the preservation, organization and protection of the private document collections of the Presidents of the Republic.

According to her, the documents that make up the private presidential collection are, in their origin, property of the president, “including for purposes of inheritance, donation or sale”.

The norm says that the Union will have preemptive rights in an eventual sale and that the articles also “cannot be sold abroad without express manifestation of the Union”.

Edited during the Fernando Henrique Cardoso administration, decree 4.344/2002 regulated the law and defined that the private document collections of presidents are “the sets of documents, in any support, of an archival, bibliographic and museological nature, produced in textual forms (handwritten , typed or printed), electromagnetic, photographic, filmographic, videographic, cartographic, sound, iconographic, of books and periodicals, works of art and three-dimensional objects”.

This legal framework ended up leading to a situation in which the presidents themselves and their assistants would be defining, without a clear rule, what at the end of the term would remain in the public domain and what would be incorporated into private property.

In 2016, the TCU concluded a judgment (TCU judgment 2255/2016) that defined guidelines on the receipt and possession of gifts by representatives.

“Imagine the situation of a head of government presenting the president of the Republic of Brazil with a large emerald of inestimable value, or a valuable painting. of the Republic, since he receives them in this public capacity”, writes Minister Wallton Alencar, rapporteur of the case.

The minister highlighted the fact that the money to pay for gifts given to foreign authorities comes from public coffers. Therefore, on the other hand, gifts received must also be public, “with the exception of items for personal use or of a very personal nature”.

At the end of the judgment, studies were recommended to the Civil House to improve the legislation that regulates presidential collections, “to lay down the reasons and the exceptional occasions in which bibliographic and museological documents, received by the President of the Republic, in the exercise of that function must be your property.”

The TCU stated that they should remain “as public property”, under the custody of the Presidency, “all other gifts — including works of art and three-dimensional objects”.

In that judgment, TCU identified that, out of 1,073 gifts received from 2002 to 2016, only 15 had been incorporated into public assets. With that, it determined the return of 434 gifts given to President Lula, from 2003 to 2010, and another 117 received by Dilma Rousseff, from 2011 to 2016.

A Sheet showed that, by authorizing the PF action on the jewelry, Minister Alexandre de Moraes, of the STF (Federal Supreme Court), pointed to the investigation of the possible commission of crimes of embezzlement and money laundering.

Both offenses have high penalties and, in the event of a possible conviction, after a final decision, could result in a prison sentence in a closed or semi-open regime.

At the moment, there is not even a formal complaint, and the case is still under investigation.

Pretrial detention, on the other hand, does not depend on a conviction, but could only occur in cases of danger to the investigation or proven risk of flight —and in a scenario where other precautionary measures prove insufficient.

Understand laws on gifts to Brazilian heads of state

Protection of Presidents’ Private Assets
The law created to protect the assets of the Presidency was only created in 1991, under the government of Fernando Collor —before, there was no text regulating the subject. For the legislation, which does not explicitly mention gifts received, documents and other items are part of the Brazilian cultural heritage, and the Union would have preference in case of sale

Decree and exchange of gifts
Nine years later, in 2002, then President Fernando Henrique Cardoso (PSDB) regulated the law sanctioned by Collor through a decree.

In the norm, the preservation of the private collection was maintained, but the items received in events called “gift exchange ceremonies” should be incorporated into the Union. With this, the legislation opened a gap for the interpretation that items received in events of another nature could go to personal collection

TCU Judgment
The TCU (Tribunal de Contas da União), in a judgment of 2016, reformulated the regulation proposed by Fernando Henrique, and interpreted that receiving gifts at any ceremony with other heads of state or government should be considered public property.

According to the court, only items of a very personal nature, such as personalized medals and a necklace, or items for direct consumption, such as caps, T-shirts, ties, slippers and perfumes, were excluded from the law.

Returns from Lula and Dilma
Along with the new legal interpretation, the TCU found that 568 goods received by Lula, in the period from 2003 to 2010, and 144 by Dilma should be located and returned to the Union. According to the court, most of the goods were delivered.

Only eight items received by Lula, totaling R$ 11,748.40, and six received by Dilma, totaling R$ 4,873, were pending. In Lula’s case, as the items could not be located, payment of the full value of the goods was agreed

Bolsonaro’s defense strategy
The lawyer for former president Jair Bolsonaro, Paulo Amador Cunha Bueno, indicated on Friday (18) that the defense strategy will follow the strict interpretation of the 1991 legislation on gifts, avoiding taking into account the judgment of the TCU and arguing that, with the possibility of keeping the item in a private collection, there is no embezzlement offense —the crime of embezzlement of good or appreciable public money