Media | September 12, 2005

The show promoted by the Federal Police exclusively for TV Globo, which showed images in Jornal Nacional on Saturday (10/9), when Flávio Maluf was unnecessarily handcuffed to a helipad in Morumbi (western São Paulo) will be the object of an internal investigation in the PF, determined by the general director of the institution, delegate Paulo Lacerda.

The show promoted by the Federal Police exclusively for TV Globo, which showed images in the National Newspaper on Saturday (10/9), when Flávio Maluf surrendered himself, needlessly handcuffed, to a helipad in Morumbi (western São Paulo) will be the object of an internal investigation in the PF, determined by the general director of the institution, delegate Paulo Lacerda. The first question to be investigated is which delegate commanded the operation in which the son of former mayor Paulo Maluf (PP) surrendered.

The action was harshly criticized by constitutionalists and criminalists heard by Last Instance. For them, the son of former mayor Paulo Maluf, also in prison, may file a lawsuit for moral damages, demanding financial compensation from the federal government. The lawyers also criticize the fact that only the TV Globo team had access to the premises of the PF Superintendence in São Paulo, showing the moment when Flávio cried while talking on his cell phone with his wife, Jacqueline Maluf.

In the experts’ assessment, either the entire press can show a fact that is already in the public domain or no vehicle should have access to the images of a particular accused in the custody of the Federal Police. They claim that the Ministry of Justice, to whom the PF is subordinate, should open an inquiry to determine responsibilities.

the case

The preventive detention of the former mayor and his son was decreed in the early evening of Friday (9/9) by judge Sílvia Maria Rocha, of the 2nd Federal Criminal Court of São Paulo, when she received the complaint from the MPF (Ministry Federal Public) against the two, in addition to money changer Vivaldo Alves, Birigui, and Simeão Damasceno, former director of the construction company Mendes Júnior.

Receipt of the complaint means the formal opening of criminal proceedings against the accused. The preventive was decreed based on an alleged attempt of coercion, by the prisoners, against Birigüi, for whom the MPF asked the Justice to grant the benefit of the awarded whistleblower, which has not yet been granted.

Maluf’s press office and lawyers deny the coercion, alleging mainly that Birigui is a defendant and therefore cannot be considered a witness. The money changer would be the main operator of illegal remittances of up to US$ 444 million that would have been diverted from the public coffers of São Paulo between 1997 and 1998.

The PF also recommended in an investigation the preventive detention of former mayor Celso Pitta, who was the head of the São Paulo administration at the time of the payments to Mendes Júnior, which would have been diverted to the scheme supposedly controlled by Maluf. The MPF, however, decided not to formalize Pitta’s request for preventive detention.


Lawyer Pedro Estevam Serrano, professor of constitutional law at PUC-SP, claims that there was an “obvious abuse of power” by the PF when providing TV Globo with images of Flávio Maluf in handcuffs. According to him, “as preventive detention is only a protective measure in the process (since there is no judicial conviction), it should be taken in a way that causes the least possible embarrassment to the defendant.” According to Serrano, the PF’s action in the case of Flávio Maluf “may subject the State to indemnify him for damage to the image”.

Serrano considers that “there is an uncontested unconstitutionality due to the violation of the principle of isonomy by the public authority” in the fact that the Federal Police has privileged TV Globo in the dissemination of Flávio Maluf’s images. “Aggrieved (television) stations may represent administratively (with the government) against the delegate responsible for the investigation in the sense that he suffers an administrative penalty, even for malfeasance, for having favored one to the detriment of third parties,” he said.

He refers to the fact that the information from the PF, which is part of the Executive Branch, has economically benefited a broadcaster, as the exclusive images result in an increase in audience and, consequently, in a return in the form of advertisements. “If any higher authority (federal delegate Protógenes Queiroz, who is in charge of the investigation), wants to remove him, there are elements for that.”

Serrano praised the work of minister Márcio Thomaz Bastos at the head of the Ministry of Justice, to whom he attributes the fact that “Brazilian society has gained an autonomous, independent PF”, but recommends caution in relation to abuses such as that verified this weekend.

Roberto B. Dias da Silva, who is also constitutionalist, states that “if there is certainty that the accused will not run away, it is not necessary to put handcuffs on. And that’s not just for him (Flávio Maluf), it’s for everyone”. According to Dias da Silva, it was clear from the images that Flávio was giving himself up, without offering any resistance, as he had even taken a helicopter trip to fulfill the determination of his preventive. For him, Flávio Maluf can go to court against the Union to ask for compensation for moral damages.

“There is a moment in the images (on TV Globo) when Flávio says that his ‘agreement’ with the Federal Police is not being fulfilled, due to the fact that he was handcuffed”, he says. For Dias da Silva, “either he has the right not to be handcuffed or he doesn’t have that right, it seemed right.”

The constitutionalist also criticized the privilege granted to TV Globo by the PF. “Either the images are for everyone, or for no one,” he said. “It wasn’t a scoop, it was a privilege.”


Criminal lawyer Roberto Telhada considers that “there is no need to handcuff whoever the accused is, except for the fact that he poses a risk to the police and himself, which is not the case with Flávio Maluf”. For Telhada, there was “exhibitionism and social intimidation” by the Federal Police. He claims that the fact that Flávio was handcuffed and recorded “is an undue punishment from which the person will never be freed”.

According to him, the Ministry of Justice or the PF Internal Affairs can open an investigation to investigate the responsibilities of public agents involved in the leak of information to TV Globo about the place and time when Flávio Maluf would turn himself in to the police, as well as about the fact that a TV Globo employee had access to the premises of the PF Superintendence and recorded images of Flávio Maluf in prison.

Telhada cited the recent episodes of invasions of law firms by the PF with generic court orders, without proper specification on which client documents may be requested, as in the Schincariol case. According to the Federal Constitution, a lawyer’s office is inviolable, but it has been the target of searches and seizures by the PF.

“We are living an exception regime. Even lawyers are being wrongfully arrested. For now, the press is safe,” he said. But he says that attention is needed so that there is no interference by the government with regard to what is disclosed, commenting on the fact that a television station was privileged by the Federal Police.

Outro criminalista, Alberto ZacAnother criminalist, Alberto Zacharias Toron, called it “an inadmissible privilege” the fact that a single media outlet has access to the images that are sought by all the press. For Toron, “it’s time for the press to start discussing the matter.”harias Toron, classificou como “um privilégio inadmissível” o fato de um único veículo de comunicação ter acesso às imagens que são buscadas por todos os órgãos de imprensa. Para Toron, “está na hora de a imprensa começar a discutir o assunto”.

According to the criminalist, the use of handcuffs by the PF is “an absurd” in the event that a criminal who does not offer any risk of being physically violent is surrendering. “The use of handcuffs is the exception, not the rule. The crime he (Flávio Maluf) is accused of is not a person who poses a risk to police activity,” said Toron. “On the other hand, real-time monitoring, in this case by TV Globo, violates the preservation of its image.”

Toron agrees that an inquiry should be opened by the Ministry of Justice to investigate the functional responsibilities of federal police officers.

The criminalist David Rechulski states that “freedom of the press, consisting in the right to inform, cannot be confused with a safe-conduct for the promotion of public execrations, especially when it involves someone who is voluntarily presenting themselves to the police authority, for purposes compliance with a court order, consisting of their own preventive detention”.

He recalled the case of Escola Base, in São Paulo, in the 1990s, in which the owners of the establishment were accused of pedophilia practices against students, and the accusations proved unfounded. “It will not be a financial compensation that will repair the moral damage,” he said.

Last Instance.

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