reproduction
The Federal Supreme Court (STF) condemned, this Thursday (25), former president and former senator Fernando Collor de Mello. The Court understood that Collor committed crimes of passive corruption and money laundering.
In this Thursday’s session, President Rosa Weber presented her vote. The other ministers had already voted.
The next step is to define the penalty to be applied. Rapporteur of the case, Minister Edson Fachin suggested more than 33 years in prison, in addition to the imposition of a fine, payment of compensation for damages, loss of property related to the crime and prohibition of exercising public function.
For the definition of the penalty, the plenary will have to analyze whether Collor will be framed in a third crime — of criminal association, as proposed by Minister André Mendonça; or criminal organisation, as proposed by the rapporteur.
Four ministers are in line with the position of the rapporteur on criminal organization: Luís Roberto Barroso, Cármen Lúcia, Luiz Fux. At that point, ministers Dias Toffoli and Rosa Weber voted with Mendonça.
If the punishment exceeds 8 years, Collor must begin serving the sentence in a closed regime, that is, in prison.
Last week, with the formation of the majority, the politician’s defense released a note: “The defense reiterates its conviction that the former president of the Republic Fernando Afonso Collor de Mello did not commit any crime and is fully confident that until the proclamation of the end result this conviction will prevail”.
How did the trial begin?
The analysis of the case began on the 10th of May, with a report by Minister Fachin and the presentation of the arguments of the Attorney General’s Office.
On Thursday (11), Collor’s defense team and other defendants presented their arguments to the ministers. On the same day, Minister Edson Fachin began his vote.
The deliberation was restarted last Wednesday (17), with the conclusion of the rapporteur’s vote and presentation of the reviewer’s vote, Alexandre de Moraes.
The following day, on Thursday (18), the other ministers presented their votes. Ministers André Mendonça, Nunes Marques, Luís Roberto Barroso, Luís Fux and Cármen Lúcia presented their arguments.
There were six votes for the conviction of the two crimes – in addition to the rapporteur, ministers Alexandre de Moraes, André Mendonça, Luís Roberto Barroso, Luís Fux and Cármen Lúcia.
Minister Nunes Marques disagreed – he voted for the acquittal of the three defendants, considering that there is no evidence other than the reports of the whistleblowers.
Fifth day of judgment
The fifth day of judgments, this Wednesday (24th) began with the vote of Minister Dias Toffoli – the seventh for the conviction of Collor in two crimes – passive corruption and money laundering.
Toffoli aligned himself with the position of minister André Mendonça. That is, he concluded that there were crimes of passive corruption and money laundering, but considered that there was no crime of criminal organization, but of criminal association.
“The fact is that essential traits for the characterization of this serious criminal type have not been demonstrated, such as an orderly structure, hierarchy and subordination and the typical relationship of dependency, stability and plurality of crimes perpetrated”, he stated in relation to the crime of criminal organization.
Minister Gilmar Mendes then voted to acquit Collor and the other two defendants.
“It should be reiterated, therefore, that there is no document indicating receipt of the millionaire bribes, in the amount of R$ 20 million, which were indicated in the complaint. From what can be seen, the linking of such payments to the accused is only based on the allegations of the awarded collaborators and on unilaterally produced documents, which are insufficient for the purposes of condemnation, as already amply demonstrated”, he pointed out.
Rapporteur’s penalty proposal
The ministers must analyze in plenary the penalty proposal presented by the rapporteur.
Fachin set a sentence of 33 years, 10 months and 10 days of imprisonment, as follows:
passive corruption: 5 years, 4 months
criminal organization: 4 years and 1 month
money laundering: 24 years, 5 months and 10 days
The rapporteur also proposed: interdiction to exercise public office or function and a fine of R$ 20 million for moral damages.
The rapporteur also presented his conclusions against two other defendants in the same action.
As for the other two defendants, Fachin proposed:
penalty of 8 years and 1 month of imprisonment for Pedro Paulo Bergamaschi de Leoni Ramos, with initial compliance in a closed regime.
– penalty of 16 years and 10 months of imprisonment for Luis Pereira Duarte de Amorim. Fulfillment will also have to be initially in prison.
The group was also sentenced to pay a fine.
Collor: 270 days-fine;
Branches: 43 days-fine;
Amorim: 53 days-fine;
Each day-fine will correspond to 5 minimum wages (in the amount in effect in 2014) and will be adjusted for inflation.
Those convicted will also have to pay R$ 20 million for collective moral damages, an amount that will undergo monetary correction.
Fachin also determined the loss, in favor of the Union, of the assets, rights and values that were the object of money laundering.
Rapporteur’s vote
In his vote, Minister Edson Fachin pointed out evidence that the crimes were committed. For the minister, there is “an expressive set of evidence”.
“The set of evidence produced in these records and already exhaustively analyzed during this vote is able to support the accusatory narrative exposed in the complaint, in the sense that the accused, in fact, were part of an organized group destined to commit crimes within the scope of BR Distribuidora S/A, through which they gained undue advantage of a pecuniary nature”, he argued.
“At the apex of the organized structure is the accused Fernando Affonso Collor de Mello, who used party-political influence to promote nominations to the boards of BR Distribuidora S/A and, with the adhesion of the respective nominated directors, create facilities for the celebration of contracts by the aforementioned mixed-capital company with businessmen who agreed to the group’s criminal purpose”, he continued.
“To ensure the distancing of the material acts that culminated in obtaining undue advantages, the aforementioned federal parliamentarian had the participation of the accused Pedro Paulo Bergamaschi de Leoni Ramos, who was responsible for bringing together directors of BR Distribuidora S/A and representatives of the companies businesswomen willing to pay bribes, as well as collect the resources owed in favor of the group”, he pointed out.
“In this task, and in the exclusive interest of the Senator of the Republic Fernando Affonso Collor de Mello, the accused Luis Pereira Duarte de Amorim also acted, who was responsible for effectively receiving the installments of undue advantages destined for the former, also carrying out the material acts aimed at concealing the origin of the resources and making them available for later use as if they were lawful”, he concluded.
ministers’ votes
The reviewer of the lawsuit, Minister Alexandre de Moraes, voted to convict Collor of corruption, money laundering and criminal organization. The minister, however, has not yet commented on the sentence of 33 years proposed by the rapporteur. “A criminal organization was formed, with payments through a sophisticated scheme. In my view, the structuring of the group that intended to commit crimes of corruption has been duly proven.”
When resuming the trial this Thursday, Minister André Mendonça partially disagreed. The minister agreed that there was evidence of the crimes, but pointed out that the crimes of corruption and money laundering were not multiple. He also pondered that he did not see the existence of a criminal organization, but a criminal association.
“The evidentiary booklet seems to me to be sufficiently robust and beyond a reasonable doubt in the sense of authorizing the acceptance, even if partial, of the accusatory thesis”.
The minister voted for Collor to pay R$ 13 million in moral damages; in the case of Ramos, he sentenced to compensation of R$ 5 million; as for Amorim, the third defendant, he concluded for the payment of R$ 2 million.
Mendonça did not initially set a penalty proposal. He said he would wait for discussions in the plenary.
Minister Nunes Marques voted to acquit Collor and the other defendants. According to the minister, the investigators were unable to advance and advance in evidence, and the accusation was based only on a plea bargain, which cannot be considered for conviction.
“As there are no suitable external elements in the file, which are able to corroborate the statements made by the collaborators and, thus, allow the formation of a judgment of certainty free from any reasonable doubt, there is no way to consider proven the accusatory thesis that there would have been in the species the sustained negotiation of the sale of political support for the appointment and maintenance of directors at BR distributor, nor that the supposed negotiation was intended to facilitate the practice of embezzlement of public money”, stated Nunes.
Following the line of the rapporteur’s vote, Minister Luís Roberto Barroso concluded that there is “sufficient evidence and from different sources, which transcend the collaborations” of whistleblowers.
Also following the line of the rapporteur, Minister Luiz Fux considered that there is evidence for the conviction. “I understand that this evidence as a whole made it extremely doubtful that this crime of corruption was actually committed, the crime of laundering was committed and also the crime of criminal organization”.
criminal action
The case – which is an offshoot of Lava Jato – involves Collor and two other defendants, businessmen Luis Pereira Duarte de Amorim and Pedro Paulo Bergamaschi de Leoni Ramos. The former is named in the complaint as a former senator’s business administrator; the second would be the private operator of the former parliamentarian
Initially, in the complaint filed by the Public Ministry, Collor was accused of receiving R$ 29.9 million in bribes for business at BR Distribuidora, a subsidiary of Petrobras in the sale of fuel. However, for ministers, the bribe would be R$ 20 million.
According to the complaint, filed in 2015, the payments would have been made between 2010 and 2014 in business involving the subsidiary, which at the time had two directors appointed by the senator.
Historic
The Court began analyzing the case of Collor and other defendants on the 10th, with the presentation of Fachin’s report and the opinion of the Attorney General’s Office.
On the occasion, the Deputy Attorney General of the Republic, Lindôra Araújo, stated that the irregularities are proven not only by the information on the award-winning collaboration, but by the gathering of other documents.
“The evidence produced during the procedural instruction, consisting of personal testimonies, tables, financial reports, seized documents, among others, form a cohesive and coherent collection of evidence that, analyzed together, leaves no doubt about the authorship and materiality of the crimes committed ”, he stated.
In addition to the prison sentence, the PGR asked that a fine be imposed and the payment of compensation of BRL 29.9 million for material damages (the amount that would have been charged in bribes) – and a further BRL 29.9 million in moral damages. , totaling R$ 59.9 million (this amount will still undergo monetary restatement).
defenses
In last Thursday’s session (11), Collor’s lawyer, Marcelo Bessa, maintained before the ministers that there is no evidence to prove the former senator’s participation in irregularities.
“In none of these sets of facts did the Public Prosecutor provide sufficient evidence or evidence capable of generating the slightest certainty regarding Fernando Afonso Collor de Mello’s guilt. This is the reality, ”he said.
“There was no probative effort by the Public Ministry. And there could not have been, because the reported facts did not occur in the way indicated in the complaint”.
José Eduardo Alckmin, lawyer for another defendant – Pedro Paulo Bergamaschi de Leoni Ramos – also argued that there is no evidence other than the plea bargain.
“A well-examined case file, what we have is really a plea bargain, which, let’s face it, has become a rather reckless practice in Brazil”, he declared.
Milton Gonçalves Ferreira, lawyer for the third defendant – Luis Pereira Duarte de Amorim – stated that the accused “lives a simple life, an honorable life and is strictly an employee of a private company in Alagoas”.
“There is absolutely no trace of culpability in these records. There is nothing in the instruction that indicated that Luís Amorim was aware of or aware of alleged requests for undue advantages. Absolutely not. Amorim is an innocent man”, he pointed out.
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