Lava Jato: TRF can expand access to hacked messages – 05/30/2023 – Politics

A decision by the TRF-1 (Federal Regional Court of the 1st Region), headquartered in Brasília, opened the way for the hacked messages of the members of Lava Jato, an episode that became known as Vaza Jato, to be accessed by all those processed in the operation for the use in their legal defenses.

In an action that has not yet been closed, the court allowed an investigated person in Paraná to have access to messages that are under the responsibility of the Federal Court of the Federal District, and will now decide whether all those processed in the operation may have the same authorization.

The use of these conversations by the defenses has served, above all, to corroborate arguments that the Federal Public Ministry task force that conducted Lava Jato committed procedural irregularities or that it acted in collusion with the Federal Justice, in an irregular manner.

The messages were initially obtained by The Intercept Brasil website and published by several vehicles, including Sheetin 2019.

Afterwards, the Federal Police launched Operation Spoofing, which investigated and arrested those responsible for the hacker invasion of public agents’ devices, including prosecutors from the Lava task force in Curitiba.

Spoofing was processed in the Federal Court of the Federal District, which is part of the TRF-1.

In specific cases, the STF (Federal Supreme Court) had already allowed the use of defenses of those prosecuted for the operation to these messages, like the lawyers of President Lula (PT). The measure was authorized by the Second Panel of the court.

In 2021, the defense Nicolau Marcelo Bernardo, who was director of Confab Industrial, asked the Federal Justice of the DF for access to the messages.

He was denounced by Lava Jato to Justice in 2020 on charges of corruption and money laundering. The Public Ministry reports that a group made illegal payments to the then director of Petrobras’ Services sector, Renato Duque, in more than US$ 10 million.

In the first instance, the request was denied, but the defense appealed to TRF-1. The lawyers reported that Nicolau “has a legitimate interest in accessing the entirety of the communications safeguarded by that court, since they constitute evidence that may prove essential to the full exercise of his ample defense”.

In March of this year, the process was judged this year by the 2nd Section of the TRF-1. The rapporteur, Wilson Alves de Souza, voted to grant access, but in a limited way.

“In order to guarantee the full exercise of the plaintiff’s right of defense, it is necessary to allow him restricted access to informal messages exchanged within the scope of the Lava Jato task force and concerning him, which can be found in the files collected throughout Operation Spoofing” , said the magistrate in his vote.

Souza votes to determine that the PF, with the support of experts and within a period of ten days, ensures “the sharing of messages collected by Spoofing that concern him, directly or indirectly, as well as those related to investigations and criminal actions filed against him in the 13th Federal Criminal Court of Curitiba or in any other jurisdiction, even if foreign”.

This “provided that any references” to the accused “are useful for his defense on the merits and/or possible procedural nullity”.

But another TRF-1 judge, Ney Bello, voted for broader access to messages. He wants the decision to be extended to anyone prosecuted by Lava Jato.

Bello voted for “the extension of the effects of this decision to all others prosecuted by the task force of the Federal Public Ministry within the scope of Operation Lava Jato, in any scope or degree of jurisdiction”.

He also voted for the accused to have access “to all messages collected by Operation Spoofing”, and not just those concerning them.

These understandings by Ney Bello ended up not entering the final decision, although the rapporteur, Souza, said during the trial that he agrees that access to the messages must be integral.

Nicolau’s defense appealed for Ney Bello’s understandings to be applied. A motion for clarification was filed —which clarifies a contradiction or omission that occurred in a decision by a judge or collegiate body.

Nicolau’s lawyer, Fernando José da Costa, asks in the appeal that the court clarify whether the defense “may have access to all the messages collected by Operation Spoofing, under the terms of the vote seen by Judge Ney Bello” and whether “the effects of such decision, that is, whether access to all messages obtained within the scope of such Operation will be extended to all others processed in Operation Lava Jato”.

The MPF (Federal Public Prosecutor’s Office) spoke out against expanding access. “A simple reading of the reasoning that preceded the determination is enough to realize that the judge also had the intention of safeguarding the privacy of information referring to third parties that do not concern him or are useful to the defense”, said the Attorney General’s Office in a demonstration on the 16th. of May.

Legally, it is possible for this decision to be taken through motions for clarification, according to specialists consulted by the Sheet.

“Determining the extent of the effects can be remedied in motion for clarification, as it is a mere omission, in the written judgment, of what was discussed and decided in the trial session”, says the lawyer specializing in economic criminal law Leonardo Magalhães Avelar.

Even if the court does not accept the motion for clarification, the others sued by Lava Jato may request the so-called “extension” of the decision in the case file. That is, that the court’s decision to give access to the messages is valid for them as well.

For Vera Chemim, master in public law at FGV, the most likely hypothesis from a legal and constitutional point of view is that each accused will have to file a lawsuit demanding the same right to use said messages, as a way of endorsing their defense”.

“It is important to note that the present decision of the TRF-1 in this sense will serve as a jurisprudential precedent, reinforcing the application of that judgment to the other accused, under penalty of affront to the fundamental right of equality provided for in article 5 of the Magna Carta”, he says.