The penalty for the crime of embezzlement is 2 to 12 years of imprisonment and a fine; read explanations of criminalists
The PF (Federal Police) investigation into the conduct of the former president Jair Bolsonaro (PL) in the case of jewelry could lead to the indictment of the former Chief Executive for the crime of embezzlement. The assessment has already been made by the Minister of Justice and Public Security, Flávio Dino (PSB).
O penal code defines as a crime of embezzlement the appropriation by public officials “of money, value or any other movable property, public or private, which he has in possession by virtue of his position, or divert it, for his own benefit or that of others“. The penalty ranges from 2 to 12 years of imprisonment and a fine.
The indictment is made within a police inquiry and is the sole responsibility of the police chief (Law 12.830/2013). Afterwards, the conclusions of the investigation must be taken to the MPF (Federal Public Ministry), which decides whether to denounce the accused to Justice.
The former president testified for 3 hours about the episode at the PF headquarters in Brasília (DF) on April 5. The corporation held simultaneous hearings with those involved in the investigations in the federal capital and in São Paulo (SP), where Bolsonaro’s former aide-de-camp, Lieutenant Colonel Mauro Cid, was also heard.
Bolsonaro’s defense has already delivered to the TCU (Tribunal de Contas da União) 3 packages of jewelry received from the Saudi government by the former chief executive. The value of the gifts is estimated at more than R$16.5 million. The content arrived in Brazil illegally and was detained at customs because it had not been declared to the Federal Revenue Service.
Criminal lawyer Carolina Carvalho de Oliveira, partner of the firm Campos & Antonioli Advogados Associadosexplains that “embezzlement is a crime attributed to anyone who subtracts or embezzles money or movable property, which he manages or keeps, for his own benefit or that of others”.
“Any crime committed against the administration of justice can be investigated by the authorities”, says the lawyer. According to her, the return of the jewels –as done by the defense of the former president– does not change the conduct of the crime that would have been committed.
To apply the penalty, the judge should consider, for example, criminal record, social conduct and personality of the accused, says Mariana Stuart, criminal lawyer at the Warde Advogadosassistant professor and assistant coordinator in the Continuing Education of PUC-SP (Pontifical Catholic University of São Paulo).
As the former president is considered “unblemished personality” (person recognized for his moral suitability), case indicted, Bolsonaro would be responsible for the base sentence of 2 years, explains the lawyer. Stuart recalls that the penalty can still be increased by 1/6, if the aggravating factor in the crime is identified by base motive (unworthy).
“Clearly, the gift was given to the representative of the nation. Therefore, the former president cannot maintain possession of jewels that are valued at millions. Nor is it a matter of insignificant value, like a chocolate, a typical souvenir of the place”, says the criminalist.
Stuart mentions other possible crimes that may still be identified in the investigation of the case. As an example, criminal association (Article 288 of the Penal Code) and ideological falsehood (Article 299).
The second could be considered, since it was allegedly told to the Federal Revenue Service, at the entrance to the Brazilian customs, that there were no goods to be declared in the luggage coming from Saudi Arabia.
Lawyer Diego Henrique, a criminalist specializing in compliance, a partner at Damiani Law Firmcites that the crime of passive corruption can also be analyzed, “if the investigations demonstrate that there was a consideration in exchange for the ‘gifts’”.
“I understand that in the case of the seized jewelry there was a mere attempt. As for the other items, the crime was consummated,” that is, all elements of the offense have been identified.
“The attempt reduces the penalty by up to 2/3, as for consummated cases, the institute of ‘later regret’ should be considered to reduce the penalty from 1 to 2/3, once the items have been returned”, says the expert.
For the lawyer Mariana Stuart, the return of the jewels after the case was disclosed by the media can demonstrate, together with other evidence, that there was no intention of the accused to hand over the jewels. “Technically, this fact alone is not proof, but weakens a possible claim that they intended to regularize later”, consider.
Bolsonaro has already denied the illegality of the pieces, brought to Brazil in October 2021, claiming to be accused of a gift he did not ask for. He also said that “nothing was hidden”. The jewelry would be destined for his wife, former first lady Michelle Bolsonaro.
UNDERSTAND THE CASE OF JEWELS
After the newspaper report The State of S. Paulopublished on March 3, reported that the government of former president Jair Bolsonaro would have tried to bring jewelry to Brazil without declaring it to the Federal Revenue, two other boxes with high value jewelry given by the government of Saudi Arabia were revealed.
On March 7, the PF (Federal Police) had access to a document showing the 2nd package of jewelry from Saudi Arabia listed as the former president’s private collection. The new document contradicts Bolsonaro’s version, which stated that the jewels donated by the Saudi government would be sent to the Union’s collection.
With the PF statement, the former president confirmed that the 2nd Chopard jewelry box was listed as a personal collection. However, he continued to deny the illegality of the pieces.
On Monday (27.Mar), another article published by Estadão revealed the existence of a 3rd jewelry box. Until then, the authorities were not aware of this other set.
Upon landing in Brazil, the items were sent to the private collection of the then president. The parts registration document states that there was no intermediary in the process and that the gift was viewed by Bolsonaro.
On June 6, 2022, according to data from the Presidency’s system, a request was made for the items to be “sent to President Jair Bolsonaro’s office”. After 2 days, it was confirmed to be “under the protection of the President of the Republic”.
Find out the items that each of the 3 jewelry boxes brought by the Bolsonaro government from Saudi Arabia contain:
- 1st jewelry pack: the set consisted of a necklace, ring, watch and diamond earrings with a certificate of authenticity from Chopard, a Swiss brand of luxury accessories. The pieces were valued at R$ 16.5 million;
- 2nd jewelry pack: the 2nd package contained a masbaha (sort of rosary), watch with leather bracelet, pen and ring;
- 3rd jewelry pack: the latest box had a branded watch Rolex, of white gold and set with diamonds; brand pen chopard silver, with inlaid stones; pair of cufflinks in white gold, with a brilliant set in the center and other diamonds around it; ring in white gold with a diamond in the center and others in the shape of “baguette” around and; it is a masbaha white gold, with pendants studded with diamonds. The estimate for the value of the set is R$ 500 thousand, according to the State of S. Paulo.
After the case was revealed, the former head of the Special Secretariat for Social Communication in the Bolsonaro government, Fabio Wajngarten, published a series of documents and stated that the jewels would go to the presidential collection.
Despite the letters released by Wajngarten, the Federal Revenue said on March 4 that the Bolsonaro government had not followed the necessary procedures to incorporate the pieces into the Union’s collection.
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