Reference to police report does not exempt MP from describing the facts in the complaint

The simple reference to a police report does not eliminate the need to describe the conduct attributed to the accused. The complaint must define the facts considered. The police report is a merely informative piece of the investigations and their results — that is, it is not descriptive of the criminal facts.

With this understanding, the 5th Panel of the Federal Regional Court of the 3rd Region determined the suspension of a criminal action in relation to the representative of a food company, who was accused of bidding fraud. The effects of the ruling were extended to a co-defendant who was attributed the same conduct.

According to the Federal Public Ministry’s complaint, the defendant and eight other people allegedly defrauded the quotation of the prices of the items in a tender by the City of Marília (SP), to set an average value higher than the market value.

The defense, carried out by lawyers Wilton Luis da Silva Gomes It is Beatriz Alaia Colin, pointed out that the MPF complaint only described the criminal classification, as provided for by law. The initial petition had five pages, with only two dedicated to exposing the alleged crime committed.

According to them, the complaint did not demonstrate how the defendant had defrauded the price quotation, nor did it indicate the circumstances, manner, place and time of the crime. The man was being accused just for participating in the bidding.

The MPF argued that the complaint made express reference to the Federal Police report, which would have a detailed description of the conduct and evidence.

Rationale
Judge André Custódio Nekatschalow, rapporteur of the case, highlighted that, for there to be fraud, it is “necessary to mention the divergence between reality and its representation in the acts perpetrated by the criminal agent” — that is, a demonstration of false representation of reality.

If the patient cheated on the price quote, the complaint should have made reference to the average market value and the average value of the items bid, which did not occur. The MPF also did not reveal how the patient got involved with the other defendants to circumvent the procedure.

The judge also highlighted that an “in-depth analytical examination” of the police report is necessary to extract the conduct allegedly committed by the defendant. “That report contains several elements, including graphics, that do not express a factual description that could be contradicted by the defense,” he explained.

For Nekatschalow, a superficial examination of the PF report does not allow the formulation of any concrete proposition as to how the patient could have defrauded the quote.

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Process 5026799-67.2023.4.03.0000