CNJ removes Marcelo Bretas, judge of Lava Jato do Rio

The National Council of Justice (CNJ) decided this Tuesday (28) to open a disciplinary process and remove from office federal judge Marcelo Bretas, holder of the 7th Criminal Court of Rio de Janeiro and responsible for Operation Lava Jato processes in the state. The procedure was instituted unanimously among the 15 members of the CNJ, and the removal was approved by 11 of them, with 4 votes against.

The decision was taken in a secret session. Before the start of the analysis, Minister Luís Felipe Salomão, rapporteur of the case and National Inspector of Justice, said that some accusations are part of confidential award-winning accusations and, therefore, could not have publicly disclosed excerpts.

Bretas is the target of representations from the Brazilian Bar Association (OAB), the National Justice Department and the mayor of Rio de Janeiro, Eduardo Paes. The OAB accusations are the most comprehensive and were presented to the CNJ in June 2021, in reaction to an investigation authorized by Bretas in 2020 that targeted 26 elite lawyers, who work mainly in Brasília, São Paulo and Rio de Janeiro, and suspected , at the time, of influence peddling in higher courts.

The OAB accuses Marcelo Bretas of, in conducting several Lava Jato proceedings, “negotiating penalties, guiding lawyers and combining strategies with the Public Ministry, in breach of the duties of impartiality, urban treatment with the parties, disrespect for the prerogatives of lawyers”.

A good part of the accusations are based on the plea agreement of lawyer Nythalmar Dias Ferreira Filho, who defended some defendants in cases conducted by Bretas. Some of these defendants said that Nythalmar acted under the guidance of Bretas, but that he later began to accuse him after being himself the target of a search and seizure. He negotiated a whistleblowing agreement with the Attorney General’s Office (PGR), to denounce alleged irregularities by the magistrate.

Marcelo Bretas denies all these accusations and the Association of Federal Judges (Ajufe) has already said that the accusations against the judge are part of a movement “orchestrated by some holders of political and economic power, affected by investigations” of corruption.

The CNJ’s decision represents yet another setback against Lava Jato in Rio de Janeiro, which investigated, among other cases, the corruption scheme set up by former governor Sergio Cabral, sentenced to more than 400 years in prison, and recently released; deviations from Eletronuclear, mainly from works to resume construction of the Angra dos Reis power plants; in addition to a money laundering and foreign exchange evasion network involving 47 money changers.

What are the accusations of the OAB and what Bretas alleges

The OAB pointed out, in its representation, a series of suspicions about Bretas’ performance in carrying out Lava Jato actions, involving former governor Sergio Cabral and his wife, Adriana Anselmo; the mayor of Rio, Eduardo Paes; businessman Fernando Cavendish; and dozens of lawyers investigated, in 2020, in Operation E$quema S.

OAB’s representation is based on a report by Veja magazine, published in June 2021, with details of Nythalmar’s accusation. To compromise Bretas, the lawyers said he had a recording in which he talks with the judge and a prosecutor in 2017 to deal with Cavendish’s accusation. In the dialogue, the judge would have said that he could alleviate the businessman’s sentence, and the law prohibits the magistrate from negotiating the agreement. Bretas denies participation, and says that at the time, he called the attorney at the request of the lawyer, who would have complained about a delay in formalizing the collaboration.

Based on Nythalmar’s accusations, the OAB still accuses Bretas of acting to rid Adriana Anselmo of corruption investigations. The lawyer says that, in 2018, he sought the judge “at the request of Cabral’s son”, to spare the former first lady. Bretas would have settled details with a prosecutor and the agreement would involve Adriana and her son giving up assets. About this, Bretas says that “a meeting, agreement or conversation in this sense never existed”.

The OAB also accuses Bretas of disclosing the testimony of Alexandre Pinto, a former adviser to Eduardo Paes, to harm him in the electoral dispute for the government of Rio de Janeiro, in 2018. In the testimony, Ponto accused the mayor of rigging bids and receiving bribes . The judge says that the statement was taken at a public hearing.

Another accusation by the OAB says that Bretas would have tried to transfer from São Paulo to his branch, in Rio, the investigation against Paulo Preto, former director of Dersa. According to the OAB, the objective would be “to achieve a link between the investigated and Minister Gilmar Mendes, for political reasons. The purpose of the ‘maneuver’ would be, in addition to embarrassing the minister, the change of jurisdiction and the choice of a new rapporteur for the Lava Jato cases in Rio de Janeiro”. Bretas denies this and says that the Federal Court of São Paulo decided to transfer the case to Rio.

Gilmar Mendes is the rapporteur for Lava Jato do Rio at the Federal Supreme Court and has already made several criticisms of Marcelo Bretas’ performance in conducting the operation in the state.

In 2020, at the request of the OAB, the minister suspended criminal actions, opened by Bretas, against dozens of famous lawyers in Brasília, Rio de Janeiro and São Paulo, investigated for alleged embezzlement of at least R$ 151 million Fecomércio.

Among the lawyers would be Cristiano Zanin, who defends President Luiz Inácio Lula da Silva; Frederick Wassef, who works for the family of former President Jair Bolsonaro; in addition to children of ministers of the Superior Court of Justice (STJ). All would receive resources from the entity to supposedly influence judgments in the superior courts of Brasilia.

In August 2021, the Second Panel of the STF annulled the entire investigation, dubbed Operation E$quema S, as it considers that Bretas did not have the competence to analyze the case, transferred to the State Justice of Rio de Janeiro.

At the CNJ, the OAB accuses Bretas of violating lawyers’ prerogatives by authorizing search and seizure in their offices and residences, in 2020.

The OAB asked for Bretas to be removed in June 2021, after Veja magazine published a report with Nythalmar’s complaints. At the time, the then National Justice Inspector, Maria Thereza de Assis Moura, who is a minister of the STJ, rejected the request. She stated that robust evidence was lacking for all the allegations. The process is now under the responsibility of the Minister of the STJ Luís Felipe Salomão, currently holder of the position of National Corregidor. Last year, he himself ordered a correction to Bretas’ court, in order to investigate the suspicions.

In 2021, when the OAB representation against Bretas was presented to the CNJ, the Association of Federal Judges (Ajufe) defended the magistrate’s performance.

“The entity also expresses its concern with the successive attempts to attack and disqualify the work that has been done by Federal Judges throughout Brazil against corruption. Ajufe understands, however, that this movement has been orchestrated by some holders of political and economic power, affected by investigations. Ajufe hopes that the accusations will be rigorously investigated and that the facts will be clarified within the law and with full transparency. Federal Judge Marcelo Bretas, who is head of the 7th federal court of Rio de Janeiro, vehemently refutes all the conclusions and untruths made by the lawyer Nythalmar Dias Ferreira Filho against his reputation ”, he said, in a note.