"With the Truth you will win them"
CITING: "STF suspends verification of the MP on supposed linking of Dirceu and Edson Carvalho with Santo Andre" The minister Eros Grau, of the STF (Supreme Federal Court), granted in this tuesday (9/5) one threshold that compels the MP-SP (Public prosecution service of São Paulo) to suspend the criminal inquiry that selects the presumption envolvement of the former-member of the house of representatives Jose Dirceu and Gilbert Carvalho, head of cabinet of president Luiz Inácio Lula da Silva, in the shunting line of resources of the City hall of Saint Andres, during the administration of the "petist" Celso Daniel.
You can read bellow the complete text of the decision. With the decision to suspend the procedure opened for the criminal promoter Roberto Wider Son, who takes care of the case, nor the former-minister of the Civil House nor Gilberto Carvalho need anymore to give deposition to the São Paulo MP, that had convoked in the new phase of inquiries figures of central offices of national politics.
The objective, in accordance with the promoter, was to investigate the suspicion with that the resources supposedly deviated of the City hall of Saint Andres would have supplied the project that was known as "valerioduto".
Beyond Dirceu and Gilberto Carvalho, also they would have to put down the state president of PT (Workers Party), Pablo Frateschi, lawyer Aristides Junqueira, who would have received R$500.000,00 of accounts of petist entrepreneur Marcos Valério to make the defense of all involved in the case, Marcos Valério himself, the former-member of the house of representatives Roberto Jefferson and the dollar changer Toninho da Barcelona, beyond Mirian Belchior, former-woman of Celso Daniel, and Bruno Daniel, brother of the mayor died in 2002.
The series of depositions would start in the thursday of the passed week, with Jose Dirceu, who did not appear and appealed to the Supreme Court. According to the assessorship of the press of the STF, the minister Eros Grau excepted that, after to receive the requested information to the Gaerco (Special Group of Regional Performance for Prevention and Repression of the Organized Crime), of the MP-SP, that restored the procedure, the action for a provisional remedy one will reapreciará granted. according to lawyer Jose Luis de Oliveira, that defends Jose Dirceu, the threshold, granted in a claim (RCL 4336), the favorable decision is a good indication of that, when judging the merit, the Supreme Court decides favorably to the filling of the procedure of criminal inquiry opened by the MP-SP. "Now we must wait the final decision", said.
Tuesday, 9 of May of 2006 CLAIM 4,336-3 SÃO PAULO: MIN. EROS GRAU: JOSE DIRCEU And HIS LAWIER JOSE LUIS OLIVEIRA And OTHERS: PUBLIC PROSECUTION SERVICE Of the STATE OF São Paulo - SPECIAL GROUP OF REGIONAL SPECIAL PERFORMANCE FOR PREVENTION And REPRESSION To The ORGANIZED CRIME - GAERCO/ABC (ADMINISTRATIVE PROCEDURE CRIMINAL Nº 01/2006) DECISION: is about claim filed a suit for Jose Dirceu Oliveira and Silva against act of the Public prosecution service of the State of São Paulo - Group of Regional Special Performance for the Prevention and Repression to the Organized Crime - GAERCO/ABC.
2. The plaitiff supports that, to restoring Administrative Procedure Criminal n. 01/2006, aiming at to the practical inquiry of presumptions the delicts committed in the municipal Administration of Saint Andres, directed inquiry against his person, the complained authority disrespected decision pronounced in files of legal documents of Inquiry n. 1.828, Reporter Minister NELSON JOBIM.
3. He observes that Inquiry n. 1.828 had for base Administrative proceeding n. 04/02, restored for the Public prosecutor's office of the Criminal Justice of Saint Andres, in which were heard João Francisco Daniel.
4. From there that, in reason of the declarations given for the witness, involving the name of the plaitiff, then representative, had been sent copies of the procedure to the Federal Public prosecution service, that legalized asked for of instauration of originary criminal inquiry before this Cut.
5. The decision pronounced for Minister NELSON JOBIM, who however if alleges to have been disrespected, in determination of that the files of legal documents were filed.his eexcellency he did not glimpse indications consistent, enough to justify the inquiry instauration.
6. He understood that the Public prosecution service would be substituting the judiciary policy, a time that the order of indiciament of then the Representative had for base administrative procedure "with clear characteristics of Police inquest". It concluded that the produced testimonial evidence in the scope of this administrative procedure does not have legal grounds.
7. The plaitiff affirms that Administrative Procedure Criminal n. 01/2006 are identical to that it based Inquiry n. 1.828, that dud for decision of this Court Rcl 4.336-MC/SP was declared procedurally
8. He standes out, finally, to be impossible to be overcome as "new fact" journalistic substances unprovided of any relation with the object of the inquiries, to authorize the instauration of new criminal administrative procedure.
9. He requires, liminarly, the suspension of Administrative Procedure Criminal n. 01/2006, until final judgment of the present claim.
10. In the merit, he intends either originating considered, so that if she recognizes the descumprimento of the decision pronounced in inquiry n. 1.828, determining the barring of the administrative procedure with relation to the plaitiff. 11. It is the report. I decide.
12. The concession of restraining order estimates the coexistence of plausibilidade of the invoked right and danger of irreparable damage for the delay in the final judgment of the demand.
13. Fumus boni iuris elapses of two aspects that point in the direction of comprometimento of the act of the Public prosecution service of the State of São Paulo: [ i ] vice in the test used for the complained authority and [ II ] absence of new fact that justifies the instauration of another criminal administrative procedure.
14. I verify, to the first sight, that Administrative Procedure Criminal n. 01/2006 dud for decision on the merits of the case of this Court was restored on the basis of the same declared test procedurally.
15. Is read in the decision of Minister NELSON JOBIM 02.08.2004 [ DJ ]: "the test with which the FEDERAL PUBLIC PROSECUTION SERVICE wants to unchain a Police inquest against Mr. DEPUTADO JOSE DIRCEU does not have legal grounds. Being it only it to base the persecutory pretension, eventual Police inquest and a probable Originary Criminal action of decurrent it, would be contaminated by vice of origin in the initial inquiry."
16. With effect, the name of the plaitiff is mentioned two times in the long deposition given for the witness [ fls. 87 and 119], that it says to have knowledge of the presumptions delicts from information of third, without that had witnessed any of the investigated facts. The complained authority, in turn, did not proceed to the hearsay of the sources cited for the deponent to confirm the veracity of the information.
17, Decision on the merits of the case transited in judgeship declared the inidoneidade of the test for origin vice, time that gotten in 2 Rcl 4.336-MC/SP procedure that could not have been promoted for the Public prosecution service.
18. One remembers, that the gotten test in illicit way contaminates the decurrent acts of it, well thus the eventual police inquest and the subsequent criminal action, contaminated of nullity. Here [ is taken care of of the doctrine of the "fruits of the poisonous tree" fruits of the poisonous tree ].
19. In this direction, our jurisprudence, consolidated in the following precedents: EDcl-HC n. 84.679, Reporter Minister EROS DEGREE, DJ 30.09.2005; HC n. 84.679, Reporter for the Sentence Minister EROS DEGREE, DJ 12.08.2005; RHC n. 75.497, Reporter Minister MAURÍCIO CORRÊA, DJ 09.05.2003; HC n. 81.993, Reporter Minister ELLEN GRACIE, DJ 02.08.2002.
20. Before of the produced test and the inconsistency of indications, the decision had for confronted determined the filling of the fact. But a new fátic-probatory element, produced in accordance with normal the procedural ones, could justify the instauration of another procedure for inquiry of the same events.
21. The state Public prosecution service does not demonstrate, in the CAP n. 01/2006, the occurrence of new fact that if gives to base its instauration. Is limited to join it to files of legal documents journalistic substances that had not been reduced the term, and that, do not keep relation with the object of the inquiries. The name of the plaitiff is mentioned two times in these news articles [ fls. 141 and 300]. One of them [ fls. 141] gives to account of declaration made for the proper Attorney general author of the complained act [ fls. 29] and that, according to claiming [ fl. 17], also subscribes Procedure Administrative n. 04/02.
22. This Cut was disclosed, in another occasion, regarding the subject: "SUMMARY: Usual resource. Habeas corpus. Sentence of the STJ that did not appreciate question ventilated in the initial, relative to Abridgement 524 of the STF. Question of the suppression of surpassed instance. Police inquest desarquivado on the basis of declarations given to the press, not taken for term, with subsequent oferecimento of denunciation. Declarations that, having been only produced through the said press, writing and televisionada, do not fill the legal content of the formula "prove new", demanded for Abridgement 524 as indispensable to authorize the bringing suit of the criminal action, after two fillings of the police inquest that gave origin to it. Provided usual resource." [ RHC 80,757, Reporter Minister ELLEN GRACIE, 01.08.2003 DJ ] 3 Rcl 4.336-MC/SP
23. The reutilization of the test confronts the decision, of the Court, who declared it uncapable. From there because it vitiates the complained act, especially if it does not have new fact that it authorizes its instauration. The breaking, in this in case that, emerges of cotejo formal between the complained act and the strict terms of the decision of this Cut, transited in judgeship. Here if debate not to be able of inquiry of the Public prosecution service.
24. Periculum in deferred payment undisputed is given the possibility of the plaitiff to be compelled immediately to give deposition in the CAP n. 01/2006, previously to the appreciation of this claim for the Full one. To be useful to observance to the call empire of the law, to intend itself to preserve the freedom of all --- what it estimates the defense of the freedom of each one --- the action for a provisional remedy provisions if imposes. I grant the restraining order, so that he is suspended Administrative Procedure Criminal n. 01/2006. It is summoned complained authority, with urgency, so that it gives to information in the stated period of the law [ art. 14, I, of Law n. 8.038/90], after what I will reapreciarei the granted caution. It is published. Brasilia, 9 of May of 2006. Eros Grau Minister - Reporter - END OF THE CITATION