Bela Megale, Mario Cesar Carvalho, Márcio Falcão & Leandro Colon – Folha de S.Paulo, 06/29/16
The Supreme Court Minister, Dias Toffoli decided on Wednesday (June 29) to release the former Minister Paulo Bernardo, detained in the Operation Custo Brasil (Cost Brazil), an investigation into the illicit activity of the Ministry of Planning. He was arrested and imprisoned Thursday, June 23.
Toffoli said that there is no part of the process that justifies the order for preventive arrest. There is no indication that Paulo Bernardo will flee the country, or a risk of his interference in the investigations, thereby granting him the right to house arrest.
The Minister determined that the São Paulo Judicial System, which is responsible for the current operation, reevaluate the necessity to apply cautionary measures. After Toffoli’s decision, judge Paulo Bueno de Azevedo decided that Bernardo would spend the duration of his trial under house arrest, he will have to attend a judicial session every fifteen days, cannot contact others who are being investigated or occupy public office. He will also have to hand in his passport to the police.
Paulo Bernardo’s release should happen during the next few hours, after the notification from Azevedo.
In his decision, the Minister criticized the use of preventive imprisonment, which represents the anticipation of punishment and cited the case of the Mensalão, the worker’s party first major political scandal, as an example.
“Not even in the in case 470, colloquially known as the Mensalão case and conducted by the former minister, Joaquim Barbosa, was there a decree for preventive prisons. In mensalão, all the defendants were charged guilty and have completed or are in the process of completing their sentence,” said Toffoli.
Toffoli also affirmed that this was an “illegal embarrassment, correctable through habeas corpus.” “There is no need to add that the order for the defendant’s preventative imprisonment it needed to be verified by the Supreme Court, which, in this case, cannot be substituted,” he added.
The Minister affirmed that the judicial decision to arrest Paulo Bernardo, “does not indicate one sole factual element” which proves he could jeopardize the investigation.
“The judge’s first hand decision is fragilely based, in the common conjecture that the accuser, given his position as former Minister and his connections with other people and companies who are also being investigated in this operation, could possibly interfere in the production of evidence, but does not indicate a sole factual element that could sustain these connections,” he said.
The Minster partially responded to an appeal made by Paulo Bernardo’s lawyer to the Supreme Court, which questioned that legality in the action determined by the judicial branch from São Paulo. The appeal signed by the defendants, Juliano Breda, Rodrigo Mudrovitsch and Verônica Sterman supported the argument that the São Paulo’s court hindered the legislation by conducting investigative speculation linked to Senator Gleisi Hoffman(PT- PR)., who must be overseen by the Supreme Court, given the constitutional immunity.
The defendant’s ask for an annulment of the action involving Paulo Bernarndo in São Paulo and requested that his case were to be conducted by the Supreme Court, since many of the related evidence are similar to ones involving his wife, the senator Gleisi Hoffman (PT-PR).
Toffoli did not identify indices of usurpation from the Sao Paulo Judicial Court in the case that justifies a change in courts from federal to national.
The minister said that the Supreme Court has already identified the Consist Company’s role and has proceeded, at first hand, to the suspects who do not have constitutional immunity, which is the case with Paulo Bernardo.
“The arrest was absolutely illegal and profoundly unfair. The decision strictly followed the constitution and its Supreme Court precedents,” said Juliano Breda to Folha.
In a statement, Bernardo’s lawyers confirmed that the decision “deconstructed all of the foundations for Paulo Bernardo’s arrest. It became clear that the foundations were vague and that the legal requisites and constitutional were not present”.
Gleisi commended the release of the former minister during a session of the Impeachment commission stating that “This is essential for me because there were no grounds to justify his arrest. We never refused to collaborate with the investigations,” she said. “I want to express my condolences about this case. In this country, we condemn before acquiring proof and information,” she emphasized.
The former minister in Lula and Dilma governments, Paulo Bernardo was arrested this past Thursday (23) in the Operation Custo Brasil (Brazil Cost), an extension of the Car Wash (Lava Jato). The politician from the worker’s party (PT) is accused of being a major beneficiary from the contractors’ kickbacks in the Ministry of Planning from 2010 until 2015.
Toffoli was the Worker’s Party lawyer during former president, Luiz Inácio Lula da Silva’s campaign in 2002 and 2006. He was nominated Supreme Court Minister in 2009 and was seen as a close friend to the party, but has kept his distance from the party ever since Dilma was elected. Today, he tends to align opinions with his Minister colleague, Gilmar Mendes, the Worker’s Party greatest opposition inside the Supreme Court.
A former Minister during the governments of Lula and Dilma, Paulo Bernardo was arrested last Thursday the 23rd as part of the investigations into the irregularities in the Ministry of Planning. Bernardo, a member of the Worker’s Party, has been accused of benefiting from bribes paid to the Ministry of Planning between 2010 to 2015.
Investigators from the Police and the Public Ministry estimate that about 100 million reais were sent from software company Consist, responsible for the administration of cosigned credits to the Ministry of Planning as kickbacks.
The company received almost one Real for every loan payment whose actual value was 0.30 Reals. According to investigators, Paulo Bernardo and the Worker’s Party were part of those who received the surplus money.
Bernardo denies the accusation that he personally acquired seven million reals in kickbacks.
Paulo Bueno de Azevedo, the judge who ruled that Bernardo should be in prison, defends his decision saying that “it was necessary to maintain public order, punish criminal action and aid in the application of the law”.
This past Wednesday, Judge Azevedo sent a statement to the Supreme Court that he was not informed by the Federal Police nor the Public Ministry that the detainment of the former minister had occurred in the office of his wife, Senator Gleisi Hoffmann.
The Senator is not the target of this investigation; however, she is now being investigated by the Supreme Court due to her husband’s involvement. According to investigators, information from Bernardo’s case should be used in her eventual investigation.
Azevedo defended the legality of his decision and said that Gleisi’s office does not have a privileged protection from judicial operations, therefore, would not require the former authorization from the Supreme Court to search the office.
The judge clarified that she had never been investigated or the target of the action for his arrest and that Bernardo clarified once arrested that the majority of his time was spent at his own residency in Brasilia.
The information from the judge’s ruling was sent to minister of the Supreme Court Celso de Mellos who asked for a clarification after the Senate examined the legality of an intrusion into the office of Gleisi without specific authorization by the Supreme Court.
The Senate argued that because Gleisi’s office is owned by the House, it is therefore given immunity in the face of legal action. Only the Supreme Court can give the permission for action to be taken in such.
The judge continued to defend his decision stating that “Although the House owns the office, it is still public property and as such there exists no legal restrictions on search and detainment in such. Unlike the Senator, the apartment does not have immunity to judicial action”.
Translation By The Brazil Institute (Julia Fonteles & Therese Kuester)