- Passive corruption –
Former President and Mrs. Lula da Silva were indicted by the passive corruption crime (CP, art. 317, caput) under allegation that have received “undue advantage from JOSE ALDEMÁRIO PINHEIRO FILHO and PAULO ROBERTO VALENTE GORDILHO, OAS engineer and president, regarding property renovation of the apartment 174 at SOLARIS building, GUARUJÁ, properly described and evaluated in the expert report # 375/2016, which point out improvements in the property rated at works (R$ 777.189,13), furniture (R$ 320.000,00) e electrical appliances (R$ 19.257,54), totaling the amount of R$ 1.116.446,37)”:
1.1 However, the property, which is said to be renovated, belongs to OAS according to Real Estate Registry Office license (Registration # 104801, Real Estate Registry Office in Guarujá), which is a public faith document. The Law states that: “Art. 1.245. Property should be transferred between citizens through a deed in the Estate Register”. The report does not contain a single element which may overcome this legal situation, revealing therefore such fabrication.
1.2. The fact that the property was “delivered” to Mr. Lula da Silva without any element to base such statement confirms such report is a fabrication. Besides, not even the Federal Police Officer, which undersigns this Report, knows when the “delivery” was held. “A property renovation was done after its delivery, possibly on second-half year of 2014” (p. 06).
1.3. Lula went to such property only once, along with his spouse, Marisa— to visit and study if they should buy it. Former president and his family members have never lived in this property or, even, had any other property attribute, as in accordance with article 1,228, Civil Code (Use, enjoyment, and provision).
1.4. In 2005, Mrs. Lula da Silva bought Banker Housing Cooperative (Bancoop)’s shares which, if had been fully paid, should entitle a property at Mar Cantábrico building (former name of Solaris building). She paid share until 2009, when the real estate project was transferred to OAS after partners’ agreement, supervised by Public Prosecution of São Paulo State. In light of this, Mrs. Lula da Silva decided to use the capital expenditure for acquisition of an apartment at Solaris building – which should be concluded by OAS – or she should receive the investment back according established conditions. After visiting Solaris building and verify that she was not interested in buying the unit 164-A, she decided to ask to be reimbursed on 11.26.2015. Currently, the investment is being claimed through a lawsuit posed by Mrs. Lula da Silva toward Bancoop and OAS (Report # 1076258-69.2016.8.26.0100, in process before 34th Civil Court of São Paulo), in stage of accused quotation.
1.5. Therefore, the first premise of the Police authority is accusing Lula and his spouse on commitment of passive corruption crime – ownership of apartment 164-A — is unequivocally incorrect, once such property is not and has never been Mr. Lula da Silva and his family member’s possession. The report not even mentions this question.
1.6. Another primary aspect was also ignored by the report. Passive corruption provided in article 317 of the Brazilian Criminal Code, it is a crime itself, which requires that the agent be a civil servant. According to one of the greatest Brazilian’s jurists, Nelson Hungria, “Corruption (…), in its central type, is the venality around the civil service, called passive when it is relevant the civil servant corrupt conduct” (Comments to the Brazilian Criminal Code, volume IX, page 367). The improvements described in the report have occurred after 2014. However, Mrs. Lula da Silva is not a civil servant since January 1, 2011 and Mrs. Lula da Silva was never a civil servant. Therefore, there is no way to think of criminal practice.
2- Fraudulent misrepresentation -
Mr. Lula da Silva was charged for fraudulent misrepresentation crime (Brazilian Criminal Code, article 299) based on the fact that “he worked on a service provision agreement for GRANERO TRANSPORTES LTDA, which is ideologically false.” The truth is that the former president did not participate in this legal relationship and, therefore, the report does not indicate any evidence in this regard. The indictment came just under the premise that Lula would be the “direct beneficiary” of said agreement, a clear assign of strict liability that does not exist in the criminal law. Moreover, the presidential assets are part of the Brazilian cultural heritage, they are of public interest by legal definition (Law 8,394/91) - they are not Mr. Lula da Silva’s private goods, but documents that the law requires to be maintained.
3- Money laundering -
Lula was charged for money laundering crime (Law No. 9,613/98, article 1) once he would have concealed the receipt of “improper advantage” from OAS, he would be “a beneficiary of embezzlement scheme of Petrobras, investigated by Operation Car Wash”.
3.1. In order to verify the crime provided in article 1 of Law # 9,613/98, Mr. Lula da Silva and his spouse need to hide or conceal assets, rights and values, “with the knowledge they arisen from crime, directly or indirectly.”
3.2. In addition to the former president not being the property owner located in Guaruja (SP), where such “improvements” were done and paid by OAS, there is no concrete element in the report which may indicate that resources used by the company were derived from Petrobras deviations and, besides, Mr. Lula da Silva and his spouse were aware of alleged illicit origin.
4- The hidden inquiry -
The report refers to a police investigation launched on 07.22.2016 and was being processed covertly - in “drawers” of the authorities involved - until 08.24.2016. Just two days ago, Mr. Lula da Silva’s lawyers were aware of the procedure, posing a complaint in the Supreme Court for violation of the Prevailing Precedent 14 (Records # 24,975). The knowledge of the existence of this procedure was only possible after the Federal Attorneys’ Office have made the mistake when filling the petition in a public investigation proceeding, in order to investigate the ownership of the Solaris building’s apartments, which was completed without charge to the former president or his family members to the practice of any illicit (Records # 060/2016).
Conclusion
No doubt, the above mentioned elements clarify:
1. This is a fabrication: the report is not based on conclusions or assumptions, rather than facts.
2. The report has no legal support: Mr. Lula da Silva and his spouse are not owners of such renovated property; they are not civil servants (premise of passive corruption crime); Mr. Lula da Silva has not been hired as mentioned in the report, so this report blames him of committing without having any involvement (strict liability, which does not exist in Criminal Law); and finally, Lula and his spouse did not receive any good, value or right from OAS, arisen from Petrobras, besides, they did not know about any alleged illicit origin of such values;
3. The report is politically motivated: Federal Police Officer Marcio Adriano Anselmo has a history of offenses against Mr. Lula da Silva by using social media and has publicly expressed his sympathy for the political parties, which antagonize the former President. We cannot accept as a coincidence that the report was presented during Dilma Rousseff’s impeachment trial, to revoke the power of the Brazilian president who was elected with Mr. Lula da Silva’s political support.
Cristiano Zanin Martins e Roberto Teixeira