2nd Panel of the STF has a majority to nullify Lava Jato acts against Odebrecht, but maintain actions

Justice Kássio Nunes Marques, of the Federal Supreme Court (STF), voted to uphold Justice Dias Toffoli’s decision that annulled all acts committed in Operation Lava Jato against businessman Marcelo Odebrecht. He disagreed, however, to reverse the suspension of the criminal proceedings instituted against him and refer them to the competent court. The 2nd Panel is judging an appeal by the Attorney General’s Office (PGR) against Toffoli’s decision. The virtual trial will run until midnight this Friday, the 6th.

Nunes Marques was the one who had the deciding vote in the trial. In the panel of five justices, Toffoli and Gilmar Mendes voted to uphold the decision that benefited the businessman in its entirety. Justices Edson Fachin and André Mendonça voted to overturn it. Nunes Marques chose a middle path, accepting only part of the PGR’s appeal.

The minister agreed that the dialogues revealed in “Vaza Jato”, a series of conversations between prosecutors from the 13th Court of Curitiba and then judge Sergio Moro, reveal a breach of impartiality, but pointed out that the nullity of the procedural acts against Marcelo Odebrecht does not affect the validity of the evidence. Therefore, Nunes Marques saw no reason to overturn the effectiveness of the plea bargain agreement.

“Having recognized the validity of the plea bargain agreement, I do not see how to rule out its ability to produce effects before a competent and impartial criminal court,” Nunes Marques stated in his vote. “Therefore, although the nullity of the procedural acts carried out by the Court of the 13th Federal Court of Curitiba has been recognized, the plea bargain agreement continues to be effective, as a result of its validity,” he added.

Toffoli’s decision in favor of the businessman was handed down on May 21. The minister stated that there was “procedural collusion” between Moro and the Curitiba task force and that the businessman’s rights were violated in the investigations and criminal proceedings. “What could and should have been done in accordance with the law to combat corruption was carried out in a clandestine and illegal manner,” he justified.

The businessman requested an extension of the effects of decisions that granted President Luiz Inácio Lula da Silva (PT) and other people under investigation in Lava Jato full access to the conversations between Moro and prosecutors in Curitiba. After accessing these conversations, several people under investigation have requested the annulment of the procedural acts carried out within the scope of the operation.

The case was released for trial by the panel by Toffoli after the PGR filed an appeal asking him to reconsider the decision or send it to a referendum by his colleagues in the plenary. However, Toffoli decided to refer the case to the 2nd Panel.

In the appeal, Gonet said that Marcelo Odebrecht confessed to the crimes in a process supervised by the STF and that it is not up to the Court to investigate alleged flaws in the actions of members of the Public Ministry and the judiciary in the first instance.