"Jewel thief," Bolsonaro should be indicted for embezzlement.

Jair Bolsonaro could, in theory, leave the Federal Police this Wednesday indicted for embezzlement, a crime in which a public servant appropriates public property, with a penalty of two to 12 years in prison, in addition to a fine, as provided for in article 312 of the Penal Code.

The police chief can, however, postpone making that decision until the end of the investigation. But the conditions for indictment exist. "Having received the jewels in his capacity as head of state, he could, in theory, have committed embezzlement or passive corruption," says criminal lawyer Anderson Lopes.

"If these jewels were accepted or requested in exchange for some benefit to be granted to the one who offered them, then it could be passive corruption," he adds.

Anderson Lopes further clarifies: "On the other hand, if the jewels were offered as a traditional gift to the head of state, without any quid pro quo, but he did not send them to be cataloged as part of the presidential collection, then it would be a case of embezzlement. So far, based on the information released by the media, it seems to me that, in theory, it is a case of embezzlement."

The fact that Bolsonaro returned the jewels after the case was reported mitigates, but does not eliminate, his status as a criminal. This is because, according to criminal lawyer Fernando Fernandes, Bolsonaro will have difficulty demonstrating that he did not know it was a criminal offense, an argument that, if accepted, would characterize what is called in law a "mistake of fact".

In other words, he was unaware that appropriating the jewels given to him in his capacity as head of state was illegal. In August 2016, in the case classified as TC 011.591/2016-1, the Federal Court of Accounts unanimously decided (ruling 2255/2016) that these gifts should be transferred to the public collection.

The president of the republic can take home so-called highly personal gifts, such as caps, t-shirts, flip-flops, and perfumes. The "mistake of fact" would transform Bolsonaro's offense into a negligent crime (without intent), which would, in his case, rule out embezzlement. 

But Bolsonaro had a duty to know the TCU (Federal Court of Accounts) ruling. If not him, then his legal advisors. And if he didn't take steps to inform himself, he could never ask a friend, in this case Nelson Piquet, to keep (or hide) the jewels.

"The strategy behind the delivery of the jewels is to claim it was a 'mistake of fact,' meaning they thought it was legal. This strategy will influence the investigation and any eventual indictment. However, the issue of 'mistake of fact' runs up against the decision of the Federal Court of Accounts, which predates the act and provides explanations on how the state should proceed," notes Fernando Fernandes.

According to Anderson Lopes, the return of the jewelry "is a typical case of subsequent repentance, as stipulated in article 16 of the Penal Code, which entails a reduction of one to two-thirds of the sentence, provided that this return was voluntary. "In other words, this act, in theory, does not eliminate the unlawfulness of the conduct, it only mitigates the sentence to be applied in any eventual trial," he states.

By entering Brazil with jewelry received abroad without providing the necessary information, Bolsonaro also allegedly committed a crime against the tax system. The subsequent delivery of the item does not eliminate the offense, according to Kléber Cabral, president of the National Association of Tax Auditors (Unafisco). 

"We are theoretically talking about crimes of mere conduct, not of result. The exclusion of effective repentance does not apply in this case. In my view, the criminal investigation should proceed in the same way," he says.

Bolsonaro could also be held accountable for pressuring tax auditors to release another batch of Arab jewelry from customs, this one valued at over R$ 16 million. 

For now, reports indicate that the pressure was exerted by Bolsonaro's subordinates, including the then Secretary of the Federal Revenue, Júlio César Vieira Gomes. But would they have acted on their own? Hard to believe.

Bolsonaro and his family amassed a multi-million dollar fortune, including through the purchase of real estate with cash. And this prosperity came to the family after Bolsonaro entered politics. 

Since he had no other income besides that received as a congressman, and later president, in addition to his proportional retirement pension from the Army (around 8 reais), it is difficult (if not impossible) for Bolsonaro to demonstrate that he became rich with honest money.

He could do as a former congressman caught with assets incompatible with his income, João Alves de Almeida, who, in the early 90s, said that he had been blessed by God and had won the lottery many times.

Incidentally, like Bolsonaro, João Alves was from the so-called lower ranks of the Chamber of Deputies. When his assets and corruption in the federal budget were revealed, he resigned from his position to avoid being impeached, and was never elected again. He went down in history as "João de Deus" (John of God), a nickname stemming from his famous phrase "God helped me and I made a lot of money."

Bolsonaro may become known by the nickname "jewel thief".