The Jair Messias Bolsonaro case

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By CLAUDIO FONTELES*

Jair Messias Bolsonaro, when dismissing Maurício Valeixo from the position of Director General of the Federal Police, did so in an illegal act, because without any valid motivation, rather to meet personal feelings

The Jair Messias Bolsonaro case

This is how, with the real case study, that so many times with my students we analyzed legal issues.

The Jair Messias Bolsonaro case, which arises from the behavior of Sergio Moro when he resigned from the position of Minister of Justice, and in view of the reasons he underlined so much, is to know whether Jair Messias Bolsonaro interfered illegally in the scope of the Federal Police , or not.

In the ongoing investigation – and by all indications it is about to come to an end – we have to:

1st- Jair Messias Bolsonaro, in a message sent to Sergio Moro, via cell phone, says: “Moro: you have 27 superintendencies, I want only one, the one in Rio de Janeiro”.

2nd- In a new message, sent on April 23, last, and before publication on the website “O Antagonista” stamping that the Federal Police was on the trail of Bolsonarist deputies, Jair Messias Bolsonaro said to Sergio Moro: “One more reason to change” .

3rd- Federal delegate Maurício Valeixo, then Director-General of the Federal Police, in his statement stated that Jair Messias Bolsonaro, since August 2019, wanted to change the head of the Federal Police in Rio de Janeiro. He said more: that he never formally asked for exoneration from the position he held, making it Jair Messias Bolsonaro by his own act.

4th- Generals Augusto Heleno, Head of the Institutional Security Office, and Luiz Eduardo Ramos, Head of the Government Secretariat, testified that Jair Messias Bolsonaro, at the ministerial meeting on March 22nd, expressly mentioned the Federal Police, in addition to others intelligence agencies, in a critical tone.

5th- Federal delegate Carlos Henrique de Oliveira, testifying for a second time, said he had met with Jair Messias Bolsonaro, last year, probably in October or November, at the Planalto Palace, in a meeting brokered by federal delegate Alexandre Ramagem.

In the video of the ministerial meeting on March 22, Jair Messias Bolsonaro says, verbatim and aggressively:

“I will not wait f. my whole family, just kidding, or friends of mine because I can't change someone from security at the end of the line that belongs to our structure. Will change! If you can't trade, trade his boss! Can't change his boss? Change the minister! And period! We're not here to play games." (transcription as reproduced by the newspaper Correio Braziliense on 23.05 – pg. 04).

These facts are already enough to be characterized as “the smoke of good law” – fumus boni iuris – which is what is required for the filing of any and all public accusations – denunciation – before the Judiciary.

Indeed, the invectives that culminated, on the part of Jair Messias Bolsonaro, in the consolidation of an act of his own, which sealed the resignation of Maurício Valeixo from the General Directorate of the Federal Police, are unquestionable.

What is Jair Messias Bolsonaro's argument for fighting for the shelving of the investigation and the consequent non-offering of the complaint?

Simply assert that in the March 22nd meeting he had not mentioned the Federal Police and that, using only the word “security”, he was talking about his safety and that of his family members.

Now, the testimonies, including those of his military ministers, who are closest to him, objectively contradict his statement.

Incidentally, in the May 14 edition, on page 03, the newspaper Correio Braziliense prints a laconic phrase by Jair Messias Bolsonaro saying: “Ramos was wrong”.

It referred, without any basis, since it presents a mere and loose sentence, to the testimony of General Luiz Eduardo Ramos, as previously highlighted here.

Also, and obviously, his anger was not directed at General Augusto Heleno – there is even a passage in the video where he justifies the criticism of ABIN for lack of personnel – given the notorious friendship and close connection between the two.

In addition, in the area of ​​security, Minister Sergio Moro, to whom he even directs an ostensive look when he talks about: “Changing the minister”.

Thus presented the case, legally impossible to assume the Attorney General of the Republic archiving directive.

I insist: the factual data, incontrovertible, are exuberant to the characterization of the fumus boni iuris to validate the public accusation before the Federal Supreme Court.

The presence of the crime of prevarication is unequivocal, as typified in article 319 of the Brazilian Penal Code:

Article 319: “Delay or fail to improperly perform an official act, or perform it against an express provision of the law, to satisfy personal interests or feelings”. (emphasis added).

Therefore, when Jair Messias Bolsonaro dismissed Maurício Valeixo from the position of Director General of the Federal Police, he did so in an illegal act, because without any valid motivation, rather to meet a personal feeling: to shield family and friends, as it is, crystal clear, in the transcript of his speech at the ministerial meeting.

And the act is illegal because, in the constitutional terms, the Federal Police is not a Police of the Executive Branch, but, and exclusively, a judicial police, thus constituting an organ of the State. Here is the wording of article 144 – §1 – item IV of the Federal Constitution:

Article 144: “Public security, duty of the State…

  • 1 The federal police, instituted by law as a permanent body, structured in a career, is intended to

IV - exercise, with exclusivity, the function of judicial police, of the Union”. (emphasis added).

It is not appropriate – as I have heard here and there – to criminally classify the conduct of Jair Messias Bolsonaro as an administrative lawyer.

The crime of administrative advocacy, set out in article 321 of the Brazilian Penal Code, is defined in:

"Sponsor, directly or indirectly, private interest before the public administration, taking advantage of the quality of public official".

Now, the President of the Republic exercises “the superior direction of the federal administration” under the terms of item II, of article 84, of the Federal Constitution.

Therefore, the President of the Republic does not need to sponsor anyone's private interest before the public administration. He presides over the federal public administration.

And more: here we are considering issuing a concrete administrative act: the illegal dismissal of the Director-General of the Federal Police.

The incidence is, therefore, full of the crime of malfeasance, and not of administrative advocacy.

That the Attorney General of the Republic, present the guiding principle of the activity of the Public Prosecutor's Office, which is the constitutional principle of functional independence - paragraph 1 of article 122 of the Federal Constitution - fulfill his functional duty and, in the case of Jair Messias Bolsonaro , accuse him before the Federal Supreme Court for the crime of prevarication.

* Claudio Fonteles is a retired Deputy Attorney General of the Republic. He was Attorney General of the Republic from 2003 to 2005.

Originally published on the portal Brazil 247.

 

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