Chamber approves “Zanin project”, which favors defendants in the STF

The plenary of the Chamber of Deputies approved, this Wednesday (22), the proposal that establishes that, when the Federal Supreme Court (STF) reaches a tie in a trial of a criminal case, there will be a decision favorable to the defendant. Currently, this only occurs in habeas corpus, an action whose objective is to release a person arrested or at risk of going to jail.

Bill 3453/2021, hastily approved by deputies, says that “in all judgments in criminal matters or criminal proceedings in collegiate bodies, in the event of a tie, the decision most favorable to the imputed individual will prevail”. The proposal still needs to go through the Senate and be signed by the President of the Republic to become law.

The proposal was dubbed by Deputy Deltan Dallagnol (Podemos-PR) the “Cristiano Zanin project”, the lawyer of President Luiz Inácio Lula da Silva (PT) who managed, in the STF, to annul several of his processes in Lava Jato. He is the petista’s favorite to replace minister Ricardo Lewandowski, who retires in May.

If appointed, Zanin would inherit all of his lawsuits, but would be prevented from trying one of the most important ones, the one that contains requests for annulment of investigations and criminal actions of several important defendants of the operation, because he himself is the plaintiff of the action as a lawyer for defense.

Based on that, other defendants started to sue Minister Lewandowski, within the same process, inaugurated by Zanin, asking for himself the extension of the decisions that favored Lula. Since last year, the STF minister has already responded to several of these requests and many others are still pending a decision.

With Zanin’s hypothetical impediment in these cases, pending annulment requests would be analyzed by the Second Panel of the STF, composed of ministers Gilmar Mendes, Kassio Nunes Marques, Edson Fachin and André Mendonça. In this eventual situation, if there was a tie – the last two usually vote against annulments in Lava Jato, and the first two in favor – the result would be favorable to the defendants anyway.

The proposal approved in the Chamber was presented in November 2021 by deputy Rubens Pereira Júnior (PC do B-MA), but it was moving at a slow pace and had been paralyzed since June last year. This Tuesday (21), by surprise, before its analysis and vote in the Constitution and Justice Commission (CCJ), it was taken to vote directly in the plenary of the Chamber, and was scheduled for the session this Wednesday (22).

Dallagnol says society loses with change

Approval was quick, symbolically, without individual vote counting. One of the only ones to protest against the change was Deltan Dallagnol, former head of Lava Jato in Curitiba. This Tuesday, the deputy criticized, on Twitter, the rush to approve the project. “If PL 3453 is approved, the system, which already punishes society, will become even more unfair. We have a system in which the chances of the Public Ministry winning habeas corpus discussions against defendants with good lawyers is negligible. Society always loses.

The possibility of ties always leading to the benefit of the defendant – not only in habeas corpus – began to be discussed at the STF in December last year, in a virtual plenary trial. At the time, 6 of the 11 ministers – Edson Fachin, Cármen Lúcia, Luiz Fux, Roberto Barroso, Alexandre de Moraes and Rosa Weber – voted that, in the case of ties occurring in a group due to suspicion or impediment of one of the ministers, he would be called someone from another class to break the tie.

Lewandowski, Dias Toffoli and Kassio Nunes Marques voted for the result to benefit the defendant. But there was already a majority of votes against it. Gilmar Mendes then asked for a review, preventing the trial from being finalized and a decision on the issue being proclaimed.

For Dallagnol, the issue would need to be further discussed by the Chamber – which did not happen. “What is the urgency? Why vote on it NOW?” he protested. “Our system is a machine for grinding legal processes of large operations when there are controversial legitimate legal discussions. PL 3453 aggravates this even more, ensuring that the defendant also wins when there is a tie in appeals in general”, he warned. “We need a system that guarantees the rights of defendants BUT ALSO those of society, protecting victims against criminals. We need a fairer system, not worsen a system that already turns the right to defense into the right to impunity.”

Deputy Elmar Nascimento (União-BA), chief of Centrão, took over the rapporteurship of the project for the vote in the plenary of the Chamber. In his opinion, he said that the proposal honors the principle of the presumption of innocence. “Whenever there is a tie in the judgment of a criminal action, as a result a reasonable doubt arises that can only be considered in favor of the defendant, and never to his detriment; claiming the application of in dubio pro reo, under penalty of non-compliance with the very principle of the presumption of innocence.”

The bill also makes an amendment to the CPP to allow any judge to grant a ex officio habeas corpus – that is, on his own initiative, without the need for a request from the investigated/accused/defendant – if a “violation of the legal system” is verified. This will be valid for both individual and collective cases, and can be done “even if the action or appeal is not known” – that is, in those cases in which the request is unacceptable for procedural reasons. It is enough for the judge to consider that the arrest or risk of it is illegal to free the person, either preventing the detention or even suspending or locking the process.

What Lewandowski already annulled in the STF

Since last year, as part of the lawsuit filed by Zanin in favor of Lula, Lewandowski has annulled several lawsuits against other Lava Jato defendants.

In September, he suspended criminal actions and investigations against federal deputy Pedro Paulo (PSD-RJ), Rio de Janeiro (RJ) mayor Eduardo Paes, and former Planning Minister Paulo Bernardo, because they were also based on evidence delivered by Odebrecht in its leniency agreement.

For the same reason, in December 2022, the minister of the STF closed a criminal action that was being processed in the Electoral Justice of São Paulo against Vice President Geraldo Alckmin (PSB). He was accused of receiving illegal donations from Odebrecht in the 2010 and 2014 campaigns for the government of São Paulo. In the same month, the former president of Fiesp Paulo Skaf got rid of a similar lawsuit, for allegedly receiving cash 2 for his 2014 campaign.

In February of this year, Lewandowski accepted a similar request, this time to suspend criminal proceedings against Paulo Okamotto, suspected of intermediating illegal donations by Odebrecht to the Lula Institute, of which he is director.

Last week, the minister suspended five more criminal actions. One of them was pending against former Senator Edison Lobão, Márcio Lobão (his son) and Marta Lobão (his daughter-in-law), for crimes related to the construction of the Belo Monte power plant. Another targeted Admiral Othon Pinheiro da Silva, former president of Eletronuclear, on suspicion of corruption in the construction of the Navy’s Shipyard and Naval Base in the municipality of Itaguaí (RJ). The third action had as defendant Jorge Atherino, accused of being a financial operator of the former governor of Paraná Beto Richa. Another action was aimed at lawyer Rodrigo Tacla Duran, who worked for Odebrecht.

All these requests were submitted to Lewandowski because, in August 2020, in the Second Panel of the STF, he voted and obtained support from the majority of the collegiate ministers to give Lula greater access to evidence delivered by Odebrecht in the leniency agreement.

This had been denied by Edson Fachin, the original rapporteur for the action and for the entire Lava Jato do Paraná in the STF. As he was defeated in the analysis of an appeal in the collegiate judgment on the case in the Second Panel, Lewandowski took over the process and began to receive, within it, several other requests for annulment or suspension of other processes.

In these requests, as well as Zanin, lawyers for other defendants say that Odebrecht’s systems and spreadsheets that recorded payments from the construction company to various politicians could have been tampered with, because an attestation of integrity of the files, which were transported from Switzerland, would be missing. Lewandowski accepted this accusation and has decreed, on a case-by-case basis, the nullity of this evidence, thus emptying the actions and investigations based on them.

What other defendants can benefit?

There are several other requests for extensions, to annul or suspend investigations or criminal proceedings for the same reason. Awaiting a favorable decision from Lewandowski, among others:

• Sergio Cabral, former governor of Rio de Janeiro, accused of receiving R$ 2.7 million in bribes from Odebrecht and other construction companies for works by Comperj, Petrobras;

• Anthony Garotinho, former governor of Rio de Janeiro, accused of allegedly receiving bribes from Odebrecht in the construction of popular housing in Campos dos Goytacazes;
• Eduardo Cunha, former president of the Chamber, accused of receiving bribes in the PAC SMS, an environmental project signed between Petrobras and Odebrecht;
• Paulo Vieira de Souza, former director of Dersa (a state-owned infrastructure company in São Paulo), accused of corruption in the Rodoanel works, in São Paulo;
• Mario Rodrigues Junior, former director of ANTT and Dersa, suspected of laundering money in Switzerland for Galvão Engenharia;
• Dirceu Pupo Ferreira, former manager of a company owned by Beto Richa, suspected of helping him receive bribes in the concession of state highways in Paraná;
• Jorge Glas, former minister of Ecuador, who would have received bribes from Odebrecht, to benefit the construction company in works in the country.

Other similar requests may still arrive. After May, they will go to Lewandowski’s successor, who inherits his cabinet’s processes. Zanin, however, would be prevented from acting in them because of a rule of the Code of Criminal Procedure according to which a judge cannot judge cases in which he has previously acted as a lawyer.