STJ annuls evidence against Flávio Bolsonaro in case of ‘cracks’ – 11/09/2021 – Power

The STJ (Superior Court of Justice) annulled this Tuesday (9) all decisions taken by the lower court of Rio de Janeiro in investigations aimed at senator Flávio Bolsonaro (Patriota-RJ) in the case of “cracks”.

By 4 votes to 1, the Fifth Panel of the court, responsible for analyzing the matter, understood that Judge Flávio Itabaiana, from the 27th Criminal Court of Rio, had no powers to investigate the eldest son of President Jair Bolsonaro.

The ministers evaluated an appeal by the congressman’s defense against a decision of the same collegiate in March, when the magistrates had rejected the request.

Flávio’s lawyers returned to the court, reinforcing the argument that the case could not have been conducted by the lower court judge because the facts under investigation by the Public Ministry of Rio de Janeiro occurred when he was serving as a state deputy.

State deputy mandate holders are prosecuted in the Special Body of the Court of Justice, the second instance.

The TJ-RJ had already decided in June 2020 to withdraw the process from Itabaiana’s hands and send it to the second instance. The judges, however, maintained the validity of the evidence obtained with their decisions, an action that had been maintained by the STJ in March.

Flávio is accused of leading a criminal organization to collect part of the salary of his former employees for his own benefit. The practice consists of the requirement made to parliamentary advisors to hand over part of their salaries to the deputy.

The president’s son was denounced to court in November 2020 for criminal organization, embezzlement and money laundering. Prosecutors named retired military policeman Fabrício Queiroz as the operator of the scheme.

According to the complaint, the practice took place in his former office in the Legislative Assembly of Rio de Janeiro, where he served from February 2003 to January 2019.

When the scandal surfaced at the end of 2018, Flávio was elected to a seat in the Senate. In a press release, the parliamentarian stated that “justice has finally been done”.

“The persecution promoted by a few members of the honorable Public Ministry of Rio de Janeiro, in an attempt to target President Jair Bolsonaro, is coming to an end,” he said.

In August, minister João Otávio de Noronha, of the STJ, ordered the suspension of the investigation against Flávio, the retired military policeman Fabrício Queiroz, accused of operating the scheme in the president’s son’s office, and 15 others investigated.

The decision was given at the request of former PM Fabrício Queiroz, who has been a friend of Bolsonaro’s since the 1980s and was an advisor in Flávio’s office in the Legislative Assembly in Rio.

In February, the STJ annulled Flávio Bolsonaro’s breaches of bank and tax secrecy in the context of investigations into the “cracks” case. At the time, by majority vote, the ministers of the Fifth Panel identified problems of reasoning in the court decision.

This Tuesday, following the vote of minister João Otávio de Noronha, two ministers (Reynaldo Soares da Fonseca and Ribeiro Dantas) revised the previous position and voted in favor of Flávio.

“There is no way to sustain that the magistrate of the first instance was now apparently competent to investigate a senator who had just left the position of state deputy,” stated Noronha.

“If it was absolutely incompetent to grant investigative precautionary measures, there is no way to sustain the viability of these measures, since they are manifestly null.”

​The result of the trial has immediate effect on the evidence obtained in the search and seizure carried out in December 2019.

The MP-RJ (Rio de Janeiro Public Ministry) was still looking for legal solutions to preserve them after the annulment of bank and tax secrecy breaches, the main evidence of the investigation against the senator.

The decision that authorized access to bank data was annulled in March by the Fifth Panel of the STJ. Defendants’ defenses allege that since the search request was made using this information, the seized material should also be considered illegal.

The “contamination” of the evidence, however, has not yet had a final decision from the courts.

By considering Flávio Itabaiana’s actions to be illegal, the STJ annuls both the results of the searches and reinforces the invalidation of the breach of confidentiality.

The MP-RJ tries to find ways to restart the investigation based on the data from the Coaf report that gave rise to the investigation, obtained before Itabaiana’s decisions and, in principle, not affected by the STJ’s decisions. There is a legal provision for breaches of confidentiality to be requested again based on the document.

However, evidence obtained from searches cannot be re-apprehended, such as cell phones and bank statements. For the MP-RJ, they corroborate the evidence of the “cracks” exposed by the data from the accounts of the investigated.

“Now it’s gone bad,” the father of former advisor Luiza Souza Paes said in an audio message when he saw the news about Queiroz’s financial movements.

“I started taking R$1,400”, wrote former advisor Flávia da Silva in proof of transfer to Queiroz, indicating her real salary, deducted from the amount transferred to the retired military police officer.

The messages between Queiroz and Danielle Mendonça da Nóbrega, ex-wife of the militia member Adriano da Nóbrega, who died a year ago, are also preserved.

She was an advisor to Flávio from September 2007 to November 2018.

The messages were obtained in Operation Untouchables, which investigated the activities of the militia in Rio das Pedras, commanded by Adriano. Danielle’s cell phone was seized at the time.

In March 2017, Queiroz tells Danielle that he will send his income report to the Legislative Assembly of Rio. In January 2018, he asks the former advisor to inform him of the amount deposited that month so he can “pay the bill”.

During this period, in 2017 and 2018, the two also talk about sending a copy of Danielle’s Income Tax return to Queiroz.

The MP-RJ assesses that these messages indicate that she was a “ghost employee” who participated in the “cracked”. In addition, it would show that Queiroz reported the deviations “to other members of the criminal organization.”

The investigation into the “cracks” was opened after a report by the Coaf (Council for the Control of Financial Activities) pointed out an atypical movement of BRL 1.2 million in the accounts of former parliamentary advisor Fabrício Queiroz from January 2016 to January 2017.

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