Delúbio: "The ruling looks like a patchwork quilt"
One of the most famous convicts in Criminal Action 470, sentenced to eight years and 11 months in prison, the former treasurer of the PT (Workers' Party) harshly criticizes the appeal presented to the STF (Supreme Federal Court); "It looks more like a patchwork quilt and, at various points, sounds disjointed," he states in his appeal; he campaigned throughout Brazil defending himself against the accusations, but suffered one of the harshest sentences; the defense also questions why the case was not sent to the ordinary courts and attacks what it calls "contradictions in the assessment of the evidence."
From Conjur - The judgment of the trial of Criminal Action 470, the mensalão case, which has 8.045 pages and was published on April 22, "looks more like a patchwork quilt and, at various points, sounds disconnected." This is what the defense of the former treasurer of the PT, Delúbio Soares, states in the Declaratory Appeals filed this Thursday (May 2) at the Supreme Federal Court.
In an 89-page petition, signed by ten lawyers—Arnaldo Malheiros Filho, Celso Vilardi, and Flávia Rahal at the forefront—the former treasurer strongly attacks the court's published ruling. Delúbio's lawyers, like most of the defendants who have filed appeals so far, complain about the suppression of excerpts from the interventions of Ministers Celso de Mello and Luiz Fux during the plenary debates: "Several of the interjections presented by two of the most active ministers in the trial were simply suppressed from the text, making the debates held during the sessions incomprehensible."
The petition begins with the subtitle "a necessary protest," in which it is stated that there was a denial of the right to a defense in the case. "By adhering to the literal interpretation of the law and disregarding the peculiarities of a case that is absolutely unique in the history of the court, the court imposed a serious denial of the right to a defense, since, as stated in a previous petition, it is humanly impossible to fulfill the duty of defending the constituent's rights in their entirety within such a short timeframe," argues the defense of the former treasurer.
The deadline for filing appeals, according to the Supreme Court's internal regulations, is five days. The justices doubled the regulatory deadline and granted ten days for the defense and prosecution to present their appeals. The Public Prosecutor's Office decided not to appeal.
In classifying the ruling as intelligible, the defense transcribes a passage from the published document to show how some of the debates became meaningless. During a vote by Minister Ricardo Lewandowski, he and Luiz Fux began discussing campaign financing and undeclared funds. In the ruling, the dialogue went as follows:
"Minister Luiz Fux: CANCELLED"
Minister Ricardo Lewandowski (Reviewer): — Of course.
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Even if, pardon me?
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Yes, because for the most part...
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Because in most cases, what happened? There was an agreement between parties for campaign financing; representatives of the various parties would call the party that financed these campaigns and say: look, go and receive money at such and such bank; and this person, initially, doesn't know if this money came from SMP&B, from the bank itself, or from some other company, as is common, even when it comes to 'off-the-books' funds.
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Pardon?
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — It focuses on corruption.
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — No. Corruption...
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Passive corruption, exactly.
Minister Luiz Fux: CANCELLED
Minister Ricardo Lewandowski (Reviewer): — Simply because he received money. Is that correct? In his capacity as a member of parliament.
Minister Luiz Fux: CANCELLED
In addition to this dialogue, the defense transcribes others in which it is impossible to identify what the discussion was about. "Just to remind you, the appellant (Delúbio Soares) was sentenced to the very high penalty of 8 years and 11 months of imprisonment and has every right to know the reasons — documented in writing — that led the members of the highest court in the country to make that decision," the lawyers claim.
Just like Marcos Valério's defense, Delúbio Soares' defense also claims that the ruling is contradictory because it doesn't explain why the part of the case against defendant Carlos Alberto Quaglia, whose claim that his defense was obstructed was accepted by the Plenary, was sent to the first instance court, while the other defendants who did not have special jurisdiction were judged by the Supreme Court.
"Why will only the defendant Quaglia be tried by the first instance court, with access to the double degree of jurisdiction?", questions Delúbio Soares' defense. Only three defendants, federal deputies João Paulo Cunha (PT-SP), Pedro Henry (PP-MT) and Valdemar Costa Neto (PR-SP), have prerogative of jurisdiction. The others were tried due to the connection between the facts.
In ten points, the appeal also attacks what it calls "contradictions in the assessment of evidence" and "omissions in the judgment regarding the sentencing." The lawyers also argue that the justices were remiss in not recognizing the "mandatory mitigating circumstance of confession."
According to the defense, the events now known as the mensalão scandal began to take on new dimensions due to Delúbio Soares's voluntary appearance before the Attorney General's Office to provide clarifications: "After that, the facts were investigated and, throughout the entire criminal procedure — both in the preliminary investigations and in the procedural phase — the appellant confessed that sums of money were delivered to members of allied parties that were part of the government."
The defense is requesting a recalculation of Delúbio Soares' sentence, citing that a significant portion of the evidence that formed the basis of the guilty verdict in the ruling that led to the conviction stems from a decontextualized analysis of the evidence. In other words, the judge, Joaquim Barbosa, only considered what was relevant to the conviction.
"It is not uncommon for passages in the leading opinion to reproduce witness testimonies in excerpts that, at first glance, point to the veracity of the prosecution's accusation. However, an analysis of the testimony given, especially when the selected excerpts are contextualized, shows that the conclusion would certainly be different," the lawyers argue.
According to the petition, the calculations used to arrive at the base sentences were not clarified, and the more severe legislation was applied to crimes that were allegedly committed under less severe legislation.