Unanimously, the ministers of the Sixth Panel of the Superior Court of Justice denied appeal of the defense of Judge Sonja Farias Borges de Sá and held their conviction to three years and three months in prison, under a semi-open regime for embezzlement-deficiency. She is accused of using commissioned judiciary servers for ‘domestic services’ – including her son’s nanny, dog care, security, driver, secretary, gardener and other tasks such as bank goes, market purchases and personal account payment.
In the case file, the judge – now retired – denied illicit.
To the Estadãolawyers Francisco Monteiro Rocha Jr. and João Rafael de Oliveira, consisting of Sonja Sá, reported that they will appeal within the STJ and even the Supreme Court. “The struggle against misleading and illegalities within the judiciary cannot be frustrated by the criminalization of scapegoats,” they said.
Unique opportunity
Legacy Card: Far beyond a service
At the time he made use of civil servants for their personal interests, according to the prosecutor’s accusation, between July 2005 and December 2007, Sonja was a judge in the municipality of Jaciara, in the interior of Mato Grosso, 143 kilometers from Cuiabá.
What aroused the researchers’ attention is that the magistrate’s residential address was in Curitiba – twenty hours and 1525 kilometers separate Jaciara from the capital of Paraná.
The damage to the coffers of the State Court, calculated at the time, reached R $ 145 thousand.
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Minister Sebastião Reis Júnior, rapporteur, was exhaustive in refusing the arguments on appeal to Sonja’s defense. “The fact is that the State Court (Mato Grosso Court of Justice) maintained the condemnation of the aggravating (in the first degree), based on a detailed analysis of the evidential elements that confirmed the materiality and authorship of the crime of embezzlement.”
Reis Júnior highlighted an excerpt from the state court judgment, according to which Sonja, ‘using his public office as a magistrate, hired servants paid by the Mato Grosso Court of Justice to perform private services at his residence, without any correlation with the public positions they held’.
The minister noted that ‘this practice was corroborated by testimonials of witnesses, who confirmed that the services provided were domestic and not related to the public office to which they were appointed’.
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‘Take care of the child and pay the bills’
The Court pointed out that Sonja filled the commissioners in his office at the 1st Court of Jaciara. They ‘didn’t even know’ the district where they were appointed or even the state of Mato Grosso.
According to the case file, a witness reported that ‘he was hired by the magistrate to perform his activities at her residence, replacing another servant whose role was to control the agenda, take care of a child and pay the Sonja bills.’ “Subsequently, it also served as a driver.”
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Another witness said he was hired by the judge to ‘provide private secretary services, doing home tasks at her residence, located in the city of Curitiba’.
A third witness declared. “He was appointed to hold the position of Security Agent, packed in the Office of the 1st Court of the District of Jaciara, of which Sonja Sá was the titular judge; however, he was performing her work at her residence in the city of Curitiba, noting that the magistrate was removed by health problems and was initially hired to be her security, but later she carried out the activities of nanny, gardener, counselor, counselor, counselor functions. ”
‘Atypicality of Conduct’
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The judge denied the crime of embezzlement attributed to her. But the court concluded. “It is necessary to recognize the existence of sufficient probative elements to prove the criminal conduct narrated in the prosecution, since, as a magistrate, he diverted values from the state treasury, through the indication and admission of eight people in commissioned positions in his office -from July 2005 to December 2007 -which actually provided different particular services to her.”
The defense also argued the atypical conduct imputed to Sonja, ‘in the absence of ruse or because the criminal type does not establish the provision of services as the material object of the crime of embezzlement’.
The court overturned this line of defense. “It is necessary to note that, in kind, the material object intended with the perpetrated conduct are the amounts, which were used to pay private employees.”
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Subterfuge
“It is clairvoyant that the appointment of the servants for the position in committee was only a subterfuge to access the remuneration that would be paid by this Court, despite such persons were hired to provide private services, domestic, as it appears from the testimonials collected in the probative instruction, hence why there is no way to conceive of the typical interpretation of the action, as it did it correctly First degree court, ”said the court.
In another part of the judgment, the Mato Grosso Court noted. “Even if the duties of the positions of Secretary and Security Agent could be performed in a place different from the magistrate’s office, it is true that the conduct of domestic activities, which were not inherent to the public office for which they were appointed, aiming only at meeting the appellant’s particular needs (taking care of his son, the dog, going to the bank, paying market accounts…) embezzlement, provided for in article 312, caput, second part of the Penal Code. ” “Thus, the irregularity in hiring for commissioned positions of secretary and security agents, respectively, is evident, given that the appellant (Sonja) named them for positions in a committee of a nature absolutely different from the functions actually performed by them, although the diverted money was intended for the payment for work that should have been provided to the Mato-Grove judiciary, becoming unable to the acquittal” sentence.
In his vote, Minister Sebastião Reis Júnior noted that there is no need to talk about remuneration that already belonged to the employee. “It should be noted that the conclusion of the State Court was that these were not public servants who were diverted from their function, but individuals admitted in a position of trust with the sole purpose of providing private services to the then magistrate.” This fact is reinforced, according to Kings Júnior, when considering that Sonja was removed from his duties by medical license. “For this reason, if there is no violation of Article 312 of the Penal Code, the deconstitution of the conclusion of the State Court would require revocation of factual-evidential matter, which is prohibited in this extraordinary instance.”
In the first instance, Sonja took a higher sentence, six years in prison. The State Court reduced the sanction to three years and three months, maintained by the STJ. For the defense, the sentence violated Article 59 of the Penal Code, ‘since the negative valuation of the circumstances of the crime and the consequences was based on generic and impairment, especially regarding damage to the treasury’.
Reis Júnior concluded that there is no reason to reform the sentence ‘if the Court has a suitable reasoning to maintain the initial regime of serving a penalty, even if the reprimand, since it can use different grounds for those contained in the sentence to comment on the Dosimetric Operation and the initial regime fixed for the execution of the penalty, provided that there is no aggravation of the final situation’.
With the word, the defense
Criminalists Francisco Monteiro Rocha Jr. and João Rafael de Oliveira, consisting of Sonja Sá, informed the Estadão that ‘this is not a definitive decision’ and that they will appeal.
“The defense of Dr. Sonja Farias Borges de Sá comes to public, regarding the trial carried out by the Superior Court of Justice, to clarify:
It must first be clarified that this is not a final decision. The Sixth Panel itself of the Superior Court of Justice will again analyze the issue in embargoes of declaration that will be opposed against the decision. The Criminal Section of the STJ (which brings together the fifth and sixth classes) should also analyze the case at the head of divergence embargoes that will later be filed. And if such appeals are unenforceable, the Federal Supreme Court will be urged to comment on the non -application of its own jurisprudence.
The appeal to the Supreme Court will have as its object the request for the application of the peaceful understanding of the Supreme Court on the subject, according to which, the use, for their own or alien, of the services performed by those who are paid by the public coffers is not configured in deviation or appropriation of mobile good ‘(criminal action 504, Rapporteur Minister Carmen Lúcia, rapporteur for judgment Dias Toffoli, judged in 9 August 2016, DJe of 1/8/2017). Such an understanding has not been analyzed by the STJ so far.
As if that were not enough, in the next appeals addressed to the STJ itself, the question will be raised again that within the scope of a public civil action on the same facts, the Mato Grosso Court itself, understood that there was no deceit by Dr. Sonja – a decision that was res judicata – since the Mato Grossense court itself was the body that authorized the assignment of advisors to the magistrate. Such arguments either have been analyzed by the STJ so far.
Finally, the defense is convinced that the struggle against misdemeanors and illegalities within the judiciary cannot be frustrated by the criminalization of scapegoats, the shiver of consolidated legal understandings and a fair process. ”
