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Opinion: Imprisonment of Senator is a Unique Case with Unique Solutions

11/26/2015 - 09h29

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MARCELO COELHO
FROM SÃO PAULO

The accusations against senator Delcídio Amaral (PT-MS), who until yesterday served as leader of the Senate, could not be more grave.

Ueslei Marcelino/Reuters
Brazil's Senator Delcidio Amaral, arrested on suspicion of attempting to obstruct justice in a broad corruption investigation.
Brazil's Senator Delcidio Amaral.

A true scandal: here is the recording in which he even suggests the type of airplane capable of helping the whistleblower Nestor Cerveró flee to Spain; here he promises to speak with Supreme ministers to nullify the statements of the accused and enable a potential "habeas-corpus" for Cerveró; "Michel" and "Renan" could help him with that.

There's more: he recounts his dealings with André Esteves, owner of BTG Pactual Bank, to give money to Cerveró's, in exchange for not being mentioned by the informer.

This is because Delcídio (like the banker André Esteves) was accused of corruption by Cerveró. André Esteves would have paid bribes to Fernando Collor. Delcídio would have received bribes in the purchase of plumb lines from Petrobras and in the acquisition of the Pasadena refinery.

In addition to all of this, Delcídio's talks reveal that the banker had access to confidential documents.

The list of crimes committed is huge.Some aren't even among the most well known: "Unfaithful sponsorship" (article 355), in the case of Cerveró's lawyer, involved in planning his escape. Money laundering, because the banker would cover the financial assistance he provided to Cerveró's family through the fees paid to the lawyer. "Exploitation of Prestige" (art. 357 of the Penal Code), in the case of a senator who promises to "meet for coffee" with the Supreme Court ministers to release one of the accused.

The legal issue is not about what Delcídio, as all signs indicate, clearly did, but the position he holds.

According to the constitution, a senator cannot be imprisoned, unless he's caught in the act, in cases of non-bailable crimes.

In the second group of the Federal Supreme Court, meanwhile,Delcídio's imprisonment was agreed upon unanimously, Was he caught red handed? Yes: the group's meetings continued this month, and the plan was in motion.

In addition, Delcídio and his associates are being accused, among other things, of "organized crime". That is a crime that does not end with a specific fact: it extends through time, and, therefore, the act can endure beyond the immediate instant of, for example, an assault or bullet.

If someone is caught "red handed", are we talking about a non-bailable act? Non-bailable acts are, in general, extremely grave: robbery, kidnapping followed by murder, rape...

But there are other cases in which the fine cannot be granted. The Penal Code Process, in article 324, establishes that there cannot be a fine in situations that authorize preventive imprisonment. For example, situations where there is a threat to public order, or ones which pose a risk for the criminal investigation.

There was no doubt, for the Federal Supreme Court ministers, that this was occurring. Furthermore: one senator was attempting to go against "the very Jurisdiction of the High"; the very constitutional order was being attacked. For a unique case, there are unique solutions, not explicitly foreseen by the Constitution.

There were alternatives: suspend Delcídio's term, apply an ankle monitor cuff, forbid him from communicating with the others involved.

It wouldn't be enough, the ministers decided.They placed weight on the possibility that, by way of the influence he possesses, Delcídio would continue to obstruct the investigations. Besides this, surely, stood the honor of the Supreme Court itself, struck by Delcídio's promises to speaks with members of the court.

Translated by SUGHEY RAMIREZ

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