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Brazil - Petrobras feature can not be 'tip' for Lava jet ...... says Mello, the Supreme Court

PETROBRAS FEATURE CAN NOT BE 'TIP' FOR LAVA 

JATO, SAYS MINISTER OF STF

SEX, 29/07/2016 - 08:37

To judge fines of resources and agreements with informers belong to the company. Delegates Association PF says "toll" 10% goes against public interest and compromises impartiality of the operation.

Petrobras feature can not be 'tip' for Lava Jato, says Minister of STF

by Hylda Cavalcanti

Brasília - The agreement of plea bargaining of three defendants entrepreneurs in Operation Lava Jato, approved in the 1st instance of the Federal Court last Friday (22) by Judge Sergio Moro, was criticized by the legal community authorities. The agreement established that 10% of the value to be returned by the defendants is for the so-called "criminal prosecution bodies". The measure goes against even position already expressed by judges of the Supreme Court (STF).

In court, what else commented this week was the statement Minister Marco Aurélio Mello, recently reiterated that the practice corresponds to "pay a kind of tip" to investigative bodies. The president of the Association of Representatives of the Federal Police (ADPF), Carlos Eduardo Sobral, has said that this type of initiative may compromise the impartiality and create competition for new negotiations. "This toll is inconvenient, inappropriate and against the public interest", even said Sobral.

Today (28), the jurist Afrânio Silva Jardim, one of the main critics of the approved agreement, suggested to the board of Petrobras resorting court this right allocation by the Federal Court.

Minister Marco Aurélio is of the opinion that public bodies may apply resources based on their own official budgets. Second message sent by his press office, Mello stated that "there is no way, under the rule of reason, think up a ride in what is charged, either in criminal decision is in agreement." "I can not imagine if it considered that the public body receives a kind of tip," he added.

Also the attorney Nicolao Dino, current deputy attorney general election, former adviser of the National Public Prosecution Council (CNMP) and former coordinator of the Chamber of MPF Anti-Corruption (5th CCR) refutes the idea. Dino was rapporteur of an application for assessment of this type of collection in the period when he joined the council and believes that infrastructure difficulties observed in investigative bodies do not justify such charges.

For Dino, several precedents under Brazilian law and comparative law indicate the state as a direct beneficiary of the consequences of crime and other attacks to diffuse interests. "The national and foreign experience shows that this possibility does not achieve 'marketing of criminal jurisdiction'" he said.

The intention of Afrânio Garden jurist suggest Petrobras appeal the whistleblower according these three defendants, he explained, it is to ensure that the amount to be reimbursed by the defendants - the result of fees in the state contracts - return to the company. Garden is an associate professor of criminal procedure at the University of the Rio de Janeiro State (UERJ) and disseminate text on the subject in the coming days, analyzing critically the whistleblower award agreements.

The feature is an alternative because, as we deal with defendants who do not have special jurisdiction, the case is being tried in Paraná Federal Justice and not go through the jurisdiction of the Supreme Court. A change in the agreement, the case could only be done if upheld appeal by a party - and snitches future obviously have no interest in challenging the document, which provides for the reduction of their sentences. The possibility of being tempted any modifications therefore had to appeal to be brought out by Petrobras.

Silva Jardim said that different understandings of the judiciary in different environments are healthy and to contribute to the debate on controversial issues, to take the case law of consolidation. But when it happens in unusual situations, not in cases such as the Lava Jato agreements. He explained that as there is no general impact on the subject (judiciary apparatus in which, when a case becomes "general repercussion" the decision on a particular subject takes effect for all similar cases), there can be no link between the decisions made about judges. Why Sergio Moro is under no obligation to decide according to the position of the Supreme Court in this case.

Fines and repatriation

The agreement approved by Moro was referring to tipoff entrepreneurs Vinicius Veiga Borin, Luiz Augusto France and Marco Pereira de Sousa Bilinski. It was prepared in the same terms rejected by Zavascki Minister, the Supreme Court in relation to another application - in this case, filed by the Attorney General's Office.

Under the agreement, these three entrepreneurs should tell what they know about the illegal activities of which participated and give the names of others involved. They should also pay each fine of $ 1 million and repatriate all assets that are abroad, with the payment of taxes due to the Brazilian authorities. Of this amount, 90% will be reimbursed to Petrobras and 10% will go to the MPF and the Federal Police.

In June, Zavascki, rapporteur of the lawsuits cases relating to Lava jet in the Supreme Court, said in denying the request PGR for a denunciation by these conditions, which like Petrobras is "taxable person" crimes, is entitled to receive the values ​​to be returned diverted "in their entirety".

The request that Zavascki denied was that, in snitching according to former director of Petrobras Supply Paulo Roberto Costa, the Federal Public Ministry (MPF) stay with a percentage of 10% of the R $ 79 million returned to be used in investigative bodies. The minister said at the time, he does not see legal justification for this type of transfer.

"Article 91, II, b, of the Criminal Code establishes as one of the effects of conviction," the loss to the Union, subject to the right of the injured party or a third party in good faith, the proceeds of crime or of any good or value that constitutes profit earned by the agent to the practice of criminal act, "he said in his decision.

Zavascki also defended the understanding that Petrobras is a mixed capital company, which is why its assets does not communicate with the Union. Therefore, "any loss suffered by the company indirectly affect the Union, majority stockholder."

"That fact is not sufficient to justify a percentage of returnees values ​​is directed to that federal entity, since the amount recovered is evidently insufficient to repair the damage allegedly suffered by Petrobras as a result of the crimes imputed to Paulo Roberto Costa and criminal organization he would integrate, "said Zavascki in his decision.

unreasonable Agreement

Despite the backlash, the Federal Court in Curitiba follow their own understanding. And use as proxy for the base argument of the Republic Carlos Fernando dos Santos Lima, a member of Task Force Lava Jato, that the funds will be used to purchase more sophisticated equipment for further investigation.

The jurist Afrânio Silva Jardim explained that although not contrary to tipoff agreements awarded when done reasonably, considers this clause of the last formal agreement "totally misplaced".

In the early afternoon, to participate in Brasilia a meeting that discussed the legislative proposal on abuse of authority, Sergio Moro gave way to brush their position about the thought of differences that have adopted in relation to the Supreme Court - though without explicitly mentioning the theme.

"If a trial judge has a position and the 2nd instance think otherwise, the 1st instance can not be criminalized by this decision," he said.

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