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The Toucans Took the Cake | Maierovitch


Source:  CartaCapital.

Author: Wálter Maierovitch, a former federal judge and expert on organized crime for Carta Capital.

The different treatment afforded the two “monthly payola” cases concerns me. You need not be a legal eagle to perceive the differences in each case, without getting into the merits of the convictions and absolutions.

In Penal Action No. 536, the PSDB have sought to minimize damages to their reputation, which is why they dubbed their case “the payola of Minas Gerais” [rather than “of the PSDB”].  Since political parties are by definition “of a national character” and treated equally, under the constitution, it cannot be called anything other than “the payola of the Toucans” — the mascot of the social democrats.

The Toucan payola case dates back to the reelection of then-governor of Minas Gerais, Eduardo Azeredo, in 1998. In “the payola of the PT”  there were criminal falsifications, yes, but in the question of who came first, the Toucans take the cake. The operator of both schemes was the ad executive Marcos Valério.

Now, on the subject of the cooption of consciences, there the  Toucans appear again. Before the vote was taken,  lawmakers were paid for their vote in favor of a constitutional amendement to permit Cardoso a second term.

This vote-buying scheme triumphed and took the prize for impunity in the process: the pactum sceleris of criminal conspiratorsr who pushed the candidacy of FHC, who went on to win a fair election and a second term. This vote-buying scheme did not capture the attention of the federal attorney-general at the time, Geraldo Brindeiro.

The concept of “dominion of the fact” or anything similar legal concept, was taken into considered It was understood in Brazil as the equivalent to the term “codelinquent ” and is based on an express provision of the Penal Code: “He who competes for the chance to commit the crime deserves the penalties to which the crime is subject.” Specifically, there was  sufficiently balanced evidence to authorize an opinio delicti  by the prosecutor.

Practically speaking and in terms of its journey through the courts, Penal Action No. 536 moves, as they say with some inorney, “at the speed of an arthritic slug.” Of the two sides of these serious and symmetrical delinquencies, with their hierarchies, complicit banks, public funds, money laundering and offenses against the democratic order, it is now time to hear from the other:  Along with PT power player, José Dirceu, already convicted, there is current federal deputy and former governor Eduardo Azevedo.

Azeredo enjoys the right to a privileged forum in the Supreme Court whle those who participated in the “Toucan payola” without this priviledge will be heard by a court of the first instance.

In the “PT Payola,” on the other hand, the  STF decided to consolidate all the cases into one proceeding, as has also happeneded in the Toucan case. …

In the dismembered trials of the Toucan payola defendants, in a Belo Horizonte court, Nélio Brant Magalhães was convicted of criminal financial negligence.

Nélio Brant Magalhães is a former director of the Banco Rural. Without the polemic raised in the PT case and with a boast from former prosecutor Roberto Gurgel, Nélio, in accordance with judicial serenity and surpreme jurisprudence, will appeal to the Federal Regional Court as a free man.

The defendenat will also, later on, be authorized to knock upon the dors of the Federal Court of Appeals and the Supreme Court. He wiill, therefore, have had the opportunity to make his case to at least two levels of authority — a privilege not given defendants in Penal Action No. 470. All that is left of Penal Action 470 is the rehashing and the raising of imputations in cases where four or more ministers voted to acquit: These are the so-called embargos infringentes, and they are decisive.

As it that were not enough, we are seeing the emergence something absolutely novel. Supreme Court justice Luiz Fux, chosen by lot to serve as rapparteur, believes, as the newspapers tell him, that he should try to limit the embargos infringentes to the discussion of theses and not to the reevaluation of evidence and proof.

It is as though the court were full of ministers eager to bang out some sumulae vinculantes or give a speech to a law school. These embargos infringentes, since their origins in the legal structure on the Empire, are by nature a reconsideration of the conviction, with a thorough reexamination of proof and the definition of the criminal conduct under the law.

On the other hand, justice Joaquim Barbosa did not keep his promise, that he would schedule Penal Action 536 this year. After becoming chief justice, he declinou da relatoria com apoio no Regimento Interno e passou os autos ao ministro Roberto Barroso.

As we see, with a quick treatment of the Toucan payola, it was judged more quickly, while more slowly, who denies having anything to do with the scheme and takes the trouble to maintain his former image as the Cato of his home town of  Alterosas.

Keep tabs on the case with the topic devised for the modest information architecture by the EBC.