Lawyers argue that the Court’s latest decisions “delegitimize” the “partial” work of the judges who coordinated the operation that culminated in Lula’s arrest
A series of decisions taken by ministers of STF (Supreme Federal Court) last week rekindled the discussion about the dismantling of the Lava Jato operation. Experts indicate that the determinations are corrective measures to preserve legislation and individual rights, broken during the operation.
On Tuesday (May 21), Minister Dias Toffoli annulled all decisions under the judgment of the 13th Federal Court of Curitiba, under the command of the then federal judge and current senator Sergio Moro (União Brasil-PR), against businessman Marcelo Odebrecht in the Lava Jato operation. Here’s the complete of the decision (PDF – 626 kB). A similar argument was used by Edson Fachin on March 8, 2021 when making president Luiz Inácio Lula da Silva (PT) eligible.
On the same Tuesday (May 21), two other cases involving Lava Jato characters occupied the Judiciary. The 2nd Panel of the STF extinguished the sentence of former Minister of the Civil House José Dirceu, convicted of corruption in a lower court, on the same day that Sergio Moro’s mandate as senator was maintained by the TSE (Superior Electoral Court).
In the case of Marcelo Odebrecht, the reporting minister Toffoli recognized the “personality” involved in the processes and requested the suspension of criminal prosecutions against Marcelo on the grounds that “collusion” between Lava Jato prosecutors and judges.
In several messages seized in the Spoofing operation that came to light at the beginning of 2021, the public prosecutors – members of the MPF (Federal Public Ministry) – they stated that they were going to meet with Sergio Moro, that they consulted him or needed to hear the judge’s opinion on some point.
There are also conversations in which the then federal judge made requests and instructions to the public prosecutor Deltan Dallagnol, who was elected deputy (Novo-PR), but was impeached. The confidentiality of the conversations was removed by Ricardo Lewandowski in February 2021. The material has, in total, 50 pages. Here’s the complete (PDF – 826 KB).
Since that time, decisions made by the 13th Federal Court of Curitiba fell into discredit by the ministers. Was when Minister Edson Fachin decided, on March 8, 2021, to annul all decisions taken by the 13th Federal Court of Curitiba in criminal actions against the president Luiz Inácio Lula da Silva (PT), including the 1st case in which the president was convicted (Triplex), and order them to be restarted in the Federal Court of the Federal District.
Subsequently, in the Federal District Court, the cases of Triplex do Guarujá and Sítio em Atibaia became time-barred (extinction of the claim due to time). They were the only two convictions against Lula and the cases considered most “advanced”.
Fachin’s decision was confirmed in the Court’s plenary on April 15 and, as a consequence, Lula became eligible and able to contest the 2022 presidential election, which he won, becoming the first politician to serve as President of the Republic by 3th turn.
When annulling all evidence of the leniency agreement with the construction company Odebrecht in September 2023, Toffoli said that the PT member’s arrest was a “frame” It is “one of the biggest miscarriages of justice in the country’s history”. The agreement signed with the construction company was responsible for supporting the accusations against Lula.
Delegitimization of judgment
Contrary to the position of former Court minister Marco Aurélio Mello, that the STF helped bury Lava Jato, the law professor at Mackenzie Alessandro Soaresstates that the word “delegitimization” of the work of judges and prosecutors involved in the operation explains the series of decisions unfavorable to Lava Jato in the Court.
“O It is made It’s a disassembly, but the question that governs it is a delegitimization of the process”he said.
According to the professor, there is no way for the Judiciary to maintain decisions once they recognize the politicization of the process. According to him, if the Federal Supreme Court did nothing after recognizing the personality involved in the case, it would be a “bad sign”as it would open space for more magistrates to act in the same way.
“The Supreme Court is correcting judicial decisions that violate the law. They [que firmaram acordo com o MPF] are not benefiting from the law, they are now receiving a judgment properly based on the legislation.”he added.
In the case of Marcelo Odebrecht, Dias Toffoli’s decision addressed the findings of the Spoofing operation. Toffoli claims that magistrates and public prosecutors who worked in the operation ignored due legal process, the adversarial process, broad defense and unconstitutionality itself to guarantee objectives “personal and political”which is why he declared the evidence null and void.
The same happened with the former governor of Paraná Beto Richa (PSDB) which had the evidence nullified and the process ordered by Toffoli in March. He was being investigated for embezzlement of money in school works, rural state roads and irregularities in highway concessions. The expectation is that more people under investigation will benefit from the Court.
The criminal lawyer Sergio Rosenthal supports Soares’ arguments. For him, Dias Toffoli’s decision comes in the same wake as several other decisions that were made by other ministers, such as Gilmar Mendes and Ricardo Lewandowski, who recognize the partiality of the judging body in the treatment of Lava Jato.
There is only one peculiarity in the latest measures: maintaining the validity of the plea bargain collaboration. The STF recognized the pressure from the MP and judges on those investigated, in addition to the individuals involved, but maintained the agreement signed with the whistleblower.
Constitutional rights
Sérgio explains that Dias Toffoli’s decision is yet another way for the STF to try to preserve the guarantee of constitutional rights. Marcelo has already served 2 years of the sentence impugned to him, a sentence signed in the agreement –now– discredited. Toffoli understood that it is Marcelo Odebrecht’s subjective right to plead for his own agreement and decide to take advantage of the benefits found or request its annulment.
The measures decreed by Toffoli are just some of the series of actions by the STF that overturn what was called “largest anti-corruption operation” Brazilian.
The penultimate Tuesday of May (May 21) saw more decisions involving Lava Jato protagonists. The 2nd Panel of the STF resumed, after 2 years of suspension, the trial of the former minister of the Civil House José Dirceu, convicted by the TRF-4 (Federal Regional Court of the 4th Region) to 8 years and 10 months in prison for passive corruption and money laundering.
The Court accepted, by 3 votes to 2, the appeal presented by Dirceu and determined the prescription (exhaustion of the term) of the punishment applied to him in a process related to the alleged receipt of bribes in a contract signed between the Petrobras and the company Apollo Tubulars.
What happened in the case of the former minister was the statute of limitations for the crime. Dirceu was already 70 years old when he was convicted in 2016, for a crime understood by ministers to have been carried out in 2009, when he signed the contract. Due to Dirceu’s age, the law defines that the prescription period (12 years) must be reduced by half. Therefore, the crime expired.
Regarding the supposed coincidence in relation to the actions taken within the scope of Lava Jato on Tuesday, lawyer Sérgio Rosenthal says that, in fact, several decisions are taking place because there are many claims involving the operation being processed in the STF.
For him, it is enough to analyze them to notice that the themes “extinction of Dirceu’s sentence”, “annulment of Marcelo Odebrecht’s conviction” and “acquittal of Sergio Moro” are not related to each other, despite appearing to be retaliation by the STF in the same the day Moro won a victory in the Electoral Court as a senator. Moro was accused of committing abuse of economic power in his electoral campaign in 2022, a year after the end of Lava Jato.
According to a report from Edson Fachin’s office, who took over as rapporteur for Lava Jato in 2017, the minister issued more than 20,000 decisions and orders and analyzed another 30,000 defense petitions by March 2024. F211 collegiate decisions were taken during the period and 120 collaboration agreements were approved. Here’s the complete of the report (PDF – 146 KB).
In February this year, payments signed under leniency agreements were suspended. There is now an expectation that the values will be revised. Sérgio Rosenthal points out that a renegotiation of values must take place, not an annulment. Convened by André Mendonça, the last hearing aimed at renegotiating the agreements signed with the companies during the operation was on Thursday (May 23).
DOUBLE SHOT
Before the STF’s double strike against Lava Jato on Tuesday (May 21), Minister Edson Fachin had already determined on Monday (May 20) the shelving of an investigation opened in 2017 – initiated by Lava Jato – against the senator Renan Calheiros (MDB-AL) and the former senator and former governor Romero Jucá (MDB-RR).
The investigation investigated the alleged payment of bribes of R$5 million from Odebrecht to Calheiros and Jucá in exchange for support for the approval of provisional measure 627/2013, converted into Law 12,973/2014.
At the end of last month, on April 22, minister Cármen Lúcia denied an appeal to suspend the decision that condemned the former prosecutor of the Lava Jato operation and former federal deputy Deltan Dallagnol (Novo-PR) to pay compensation in R$75,000 President Lula (PT) for the PowerPoint case. The tool was used by the MPF to explain the accusations against Lula.
On April 15, Nunes Marques annulled Lava Jato evidence against magistrate Mário Guimarães Neto, of the TJ-RJ (Court of Justice of Rio de Janeiro), accused of receiving R$6 million in bribes. According to the minister, “the evidence produced to the detriment” by Guimarães Neto “through breach of tax and banking secrecy” were delivered by “incompetent judgment” of the 7th Federal Criminal Court of Rio de Janeiro. Here’s the complete (PDF – 158 kB).
Minister André Mendonça, on February 26, provisionally suspended the fines and authorized companies that signed leniency agreements during the Lava Jato operation to renegotiate the terms. On February 1, Minister Dias Toffoli had suspended the payment of fines signed by Novonor (formerly Odebrecht) in the amount of R$8.5 billion.
The decision is similar to the one that was granted to J&F in December 2023. In the same way as what was decided last year, Toffoli also authorized Novonor to have access to the evidence collected in the Spoofing operation.
On January 9, Fachin published the annulment of a 24-year prison sentence against former PT treasurer João Vaccari Neto. The minister recognized the incompetence of the 13th Federal Court of Curitiba to process and judge the case. Here’s the complete (PDF – 246 KB).
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