Jewelry: Possible conviction could lead Bolsonaro to prison – 08/20/2023 – Politics

By authorizing the triggering of action by the Federal Police on jewelry and gifts given by authorities from other countries to Jair Bolsonaro (PL), Minister Alexandre de Moraes, of the STF (Federal Supreme Court), pointed out the investigation of the possible commission of the 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 in the investigation phase —during which the framework of the conducts can still be changed.

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.

As stated in Moraes’ decision, the PF investigation identified evidence that Bolsonaro and his assistants acted to divert high-value gifts received on international trips by the former president due to his position —or by government entourages acting on his behalf— for later to be sold abroad, in order to generate Bolsonaro’s illicit enrichment.

The ex-president’s defense states that he “never appropriated or embezzled any public property”.

Provided for in the Penal Code, 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 expected penalty is from 2 to 12 years in prison, in addition to a fine.

The crime of concealing the origin, location or ownership of goods or values ​​arising —directly or indirectly— from a criminal offense, can lead to punishment of 3 to 10 years of imprisonment, and a fine.

Prison in a closed regime would occur in case the total sentence was more than eight years, while a sentence of more than 4 to 8 years could be served in a semi-open regime.

Antonio Santoro, Professor of Criminal Procedural Law at UFRJ (Federal University of Rio de Janeiro), points out that the crimes suggested have high penalties.

“Considering the standard, there is a reasonable possibility that the final sentence will be longer than four years [em caso de condenação por peculato e lavagem]which would prevent, for example, replacing a prison sentence with an alternative sentence”, he says.

He points out, however, that the total sentence being more than eight years would depend on many variables, being a more speculative scenario.

According to Vinicius de Souza Assumpção, criminal lawyer and second vice-president of IBCCrim (Brazilian Institute of Criminal Sciences), for the crime of embezzlement to be configured, the gifts sold must be understood as public goods, and this categorization is important. case key.

He points out that, in case the jewels are considered assets that could not be incorporated into personal assets, the alleged appropriation violates the interest of the public administration.

On the other hand, in case of a different understanding, he says, there could be a crime of embezzlement, for eventual non-declaration of items and non-payment of corresponding taxes.

According to an understanding established by the TCU (Union Court of Auditors) in 2016, only gifts that are for personal use or of a very personal nature can be part of a president’s private collection.

On social networks, allies of Bolsonaro have sought to embrace the thesis of a very personal item based on an ordinance by the government of Michel Temer.

Marina Coelho Araújo, a criminal lawyer and adviser to the IASP (Institute of Lawyers of São Paulo), points out that there are regulations so that goods received in the exercise of office are public goods to avoid situations of conflict of interests.

She assesses that it is necessary to advance in the investigations to find out if there may be other crimes involved in receiving gifts, such as corruption, but points out that the penalties for the crimes indicated in the investigation are already high.

“There has to be a process, produce evidence and, after it becomes final, [em caso de condenação]are penalties that can indeed give a closed regime”, he says.

An eventual conviction of Bolsonaro would depend on proving that he ordered the sales or that the scheme worked to his benefit.

This Thursday (17), the new lawyer for Lieutenant Colonel Mauro Cid, Bolsonaro’s former assistant, said that Cid had decided to confess to participating in the sale of the jewels and declare that he had acted on Bolsonaro’s orders. The defender of the military, however, has already changed his version on the subject several times in interviews.

Also on Thursday, Moraes authorized the breach of bank and tax secrecy by Bolsonaro and former first lady Michelle Bolsonaro, which had been requested by the PF. The goal is to find out if the money from the sale of gifts reached the former president.

In an interview last Friday, with the newspaper O Estado de S. Paulo, Bolsonaro said that Cid had “autonomy” as his assistant. He also stated that he neither sent anyone to sell anything nor received anything.

Raquel Scalcon, a professor at FGV Direito São Paulo and a criminal lawyer, explains that a possible confession by Mauro Cid pointing to Bolsonaro as the mastermind would reinforce the body of evidence, but alone would not be sufficient for a conviction, it being necessary to prove this determination.

She points out that evidence of receipt of values, for example, could represent an element in this line. “It does not directly prove the order itself, but indirectly, yes. It would not make sense to receive the value without having determined the sale”, she says.

Also according to Davi Tangerino, a criminal lawyer and professor of law at UERJ (University of the State of Rio de Janeiro), to prove Bolsonaro’s alleged participation, there would not have to have been a direct order —just proof of Bolsonaro’s knowledge that assets of the Presidency were being marketed would already implicate him criminally.

Crimes pointed out in investigation into jewelry given to former president Jair Bolsonaro

embezzlement

• The public official appropriates money, value or any other movable property, public or private, which he has in possession by virtue of his position, or diverts it, for his own benefit or for the benefit of others (article 312 of the Penal Code)
• Penalty: imprisonment, from 2 to 12 years, and fine

MONEY LAUNDRY

• Conceal or conceal the nature, origin, location, disposition, movement or ownership of goods, rights or values ​​arising, directly or indirectly, from a criminal offense (Article 1 of Law 9613/98)
• Penalty: imprisonment, from 3 to 10 years, and a fine