When chancelling the largest attack on the legal profession registered in the country, Judge Marcelo Bretas, of the 7th Federal Court of Rio de Janeiro, fully complied with the requests of the Public Ministry and ordered the execution of search and seizure warrants against 75 targets (more than 50 previously disclosed), in 33 residences of lawyers.
It is noteworthy that the alleged crimes pointed out by the Rio MPF, which would have happened between 2012 and 2018, fully relate to alleged transactions signed between Fecomércio and law firms – some of the targets never managed to close contracts with the entity . It is clear that the intention is to embarrass and intimidate targets.
Bretas justifies the order by stating that it is essential that searches are carried out in the homes of the investigated, removing the inviolability of the law, as there are signs of committing crimes related to the exercise of the profession.
“This is because, there are indications of the commission of crimes of corruption, embezzlement, exploitation of prestige, money laundering and criminal organization, being, therefore, the search measure is (sic) a capable means to reinforce the investigation and, therefore, indicate the authorship and materiality of the imputed crimes. Thus, aiming to collect all possible evidence, I believe that the search and seizure in the residence of those requested by the Federal Public Ministry is pertinent “, said the judge.
The OAB, when filing a complaint with the Supreme Federal Court, pointed out that the search order against the lawyers was “generic” and did not present thematic and temporal delimitation to conduct its enforcement, which, according to the entity, opened a gap for the appropriation of sensitive elements not related to research.
The Advocacy Statute, by providing for exceptions to the principle of inviolability of the lawyer’s work, states that the charges must be detailed and provides that the search operation is carried out “in the presence of a representative of the OAB”. But that was not the case.
Targets of the operation ordered by Bretas reported to ConJur that searches in lawyers’ houses were not, in fact, accompanied by representatives of the Order. The warrants, according to reports, did not have copies or excerpts of the court decision authorizing them. On top of that, one of the houses was invaded by the PF through the back door, and the police entered the room where the lawyer slept with his wife.
In the request, the MPF justifies searches in offices and homes by citing jurisprudence from the STF and the Superior Court of Justice. Bretas glues one of the justifications of the MPF in its decision, to show that there are precedents authorizing searches of the homes of the investigated without the participation of a representative of the Order.
In the decision cited, however, the interlocutory appeal at the request of Habeas Corpus was dismissed by the STJ for being an inadequate instrument for “revolving the factual / evidential material in the case file”. In other words, there was no analysis of the merits of the request, which claimed that the lawyer’s home could not be considered an extension of his workplace.
Illegalities and Abuses
The violations of the jurisprudence and the prerogatives of the law committed by the MPF and supported by Marcelo Bretas caused the OAB to appeal to the Supreme Court to request the annulment of all decisions related to Orlando Diniz’s complaint.
The Order maintains that the investigations involve authorities with jurisdiction and, therefore, the STF would have the competence to judge and prosecute the case. In addition, he accuses the Federal Public Ministry in Rio of undertaking “legal juggling” in an attempt to keep the case running at first instance.
OAB’s requests include the suspension of the effects of the approval of Orlando Diniz’s award, in a precautionary manner, and the sending of the material to the Supreme Court; and, on the merits, the recognition of the STF’s competence to process the case and the declaration of nullity of the decisions of the 7th Federal Court of Rio.
Incompetence and imputation error
The raid against the offices was considered an attempt to criminalize the legal profession by the legal community. In addition, it contains errors of jurisdiction, since Fecomercio is a private entity and should be investigated by the State Justice; and imputation of crimes, since its leaders cannot be accused of corruption or embezzlement. In another aspect, there are those who understand that, because they intend to investigate ministers of the STJ and TCU, the competence would be of the STF.
Entrepreneur Orlando Diniz has been arrested twice and has been attempting a plea bargain since 2018 – which was only approved, according to the magazine Time, after he agreed to charge large law firms. In exchange for the complaint, Diniz gains the freedom and the right to keep about US $ 1 million deposited abroad.
Excerpts leaked from Diniz’s complaint still show that the businessman was directed by the Federal Public Ministry of Rio in the process. In many instances, it is a prosecutor who explains to Diniz what he meant. When the whistleblower disagrees with the text attributed to him, the prosecutors disagree, stating that they will detail in the annexes.
Law firms also report having values blocked from their current accounts. In the case file, Bretas admitted to having ordered the kidnapping, but stated that it was supposed to happen on the day of the operation, as is customary. Since the blockade would not be part of the system, he raised the confidentiality of the request, exposing the targets of the operation – this after the disclosure of news, the leaf and yes ConJur, that the block would have been effective.
According to Bretas, the change from the BacenJud system to the SisbaJud caused a technical error, and the block was not made. “Only on the following day, it seemed, the order would finally have been transmitted to the banks, but even today the Sisbajud does not have confirmation that the order has been fulfilled,” he said, justifying the lifting of the secrecy.