Left is sensitive to the death of companies, says lawyer – 03/18/2024 – Power

Representative of the PSOL, PC do B and Solidariedade parties in the action that questions the leniency agreements signed until 2020 by companies involved in Operation Lava Jato, lawyer Walfrido Warde says that the request for review was not made to default.

“They say this is purse theft. Anyone who says something like that is lying or is ignorant. At no point do we ask you not to pay. On the contrary: we want you to pay, but with the same rules for everyone”, he says.

Warde argues that companies were led to enter into leniency agreements in an environment of lack of rational regulation, with the risk of business death, especially for construction companies prevented from signing a public contract. According to him, it would therefore be a context of coercion, treated as an unconstitutional state of affairs.

The concept has raised criticism in the legal community because it is often invoked in cases of violations of the rights of vulnerable people and attracted attention because it was presented by left-wing parties.

“They have their beliefs about capitalism, but they all know that if companies perish, there will be no jobs or revenue or national content, therefore the country perishes. As these parties work with the neediest sectors, they are perhaps more sensitive than than right-wing parties”, he says.

On the 26th, the minister of the STF (Supreme Federal Court) André Mendonça gave 60 days for renegotiation in a conciliation hearing in which, according to the newspaper O Globo, some of the companies themselves denied having been coerced. Warde claims that few lawyers said this.

The term coercion became controversial. At the hearing, did the companies deny having suffered coercion?
Allow me to back up a little. There is no doubt that these companies were under threat of corporate death. So much so that they signed an agreement with those who couldn’t sign it. The majority celebrated with the Public Ministry. By law, the CGU (General Comptroller of the Union) celebrates.

Brazil lost one of the pillars of its economy, which is the infrastructure market. This is the opposite of what any doctrine that supports the existence of the leniency agreement preaches. The agreement, as foreseen by the legislator, is not intended to break up the company but rather to make it overcome the problems, pay and continue to exist.

Until 2020, there was an unconstitutional state of affairs. In 2020, an ACT (Technical Cooperation Agreement) was signed between the Supreme Court, Ministry of Justice, AGU and CGU. In it, criteria were defined to establish compensation, fines and rules for leniency agreements. [Em 2023]we sued the ADPF [Arguição de Descumprimento de Preceito Fundamental] 1,051 asking only for the following: “Supreme, suspend the pecuniary obligations, only payment of compensation and fines, of these agreements concluded before 2020, and open the review of these agreements, of these pecuniary obligations, in light of the ACT”. We never ask to default.

Is the request to recalculate?
No. It’s for review. And reviewing can mean many things.

Even not charging?
Even charge more, eventually. I’ll give you an example: reclassifying attachments. The company said it financed the campaign. She will not change the fact that has already been told.

But there was no coercion?
Coercion is not necessarily in the statement of fact. It is the assumption of an obligation that she could not pay.

For example: you said that you gave money to pay for someone’s campaign. But this person didn’t do you any favors. You only gave money, to please, because it was part of a campaign financing culture, but there was no official act, so there is no corruption. You can’t just punish something that is slush fund as if it were corruption. This is reclassification of attachments. You are not changing the fact. The fact is told.

The request to review pecuniary obligations is for things done before 2020: double fine and compensation under the Anti-Corruption Law and the Improbity Law. You cannot compensate the State twice for the same incident.

They say this is purse theft. Anyone who says something like that is lying or is ignorant. At no point do we ask you not to pay. On the contrary: we want you to pay, but with the same rules for everyone.

Either we fight corruption seriously, or the fight against corruption will unravel due to its own problems. This is what happened with Lava Jato. This ADPF is a way to save some positive results from Lava Jato.

You asked me if the companies responded to Minister André that there was no coercion.

That.
The companies didn’t say that. Two or three lawyers [falaram]. But several others said: “we were living in an exceptional state.” Companies were experiencing pressure. Obviously no one had their nails ripped off. No one went to the pau de arara.

There was no torture?
The State can apply pressure, but it must have rules, as it did after 2020 with the ACT, because whoever signs the leniency agreement is prostrate. Otherwise, the negotiator on the State side does whatever he wants. There must be rules: how compensation, fines, discounts for cooperation are calculated, how the narrated facts are classified.

Did this question only occur in the civil sphere? Was the state of affairs unconstitutional in the criminal case? Legal entities are not defendants in criminal proceedings. Individuals entered into plea bargain agreements. There is an ADPF, which was not filed by us, which questions the plea agreements. There are a series of measures in the Supreme Court to annul allegations. It’s not a subject that interests me. My interest is the preservation of Brazil’s business environment in accordance with the public interest.

I’m not a criminalist. I am a business law lawyer. The ADPF of which I am a patron, together with other lawyers, is to review the fine and compensation criteria in leniency agreements before 2020. That’s it. I have nothing to do with canceling the plea.

If you ask me what my opinion is as a citizen, I’ll tell you: it doesn’t make sense to believe in a plea bargain signed for a fee. [pagamento]. How can you believe, and arrest people, based on what someone said who earned R$3 million to say.

These guys from Lava Jato made a mess. And now they complain that we are dismantling Lava Jato. We are not dismantling. We are trying to create a solid regulatory environment to combat corruption in Brazil. We are the adults in the room. It’s easy to say: “these lawyers want to favor the corrupt.” No. We want to build the fight against corruption.

Why did left-wing parties assume responsibility? Is there anything new about this complaint made in defense of executives?
ADPF 1,051 does not deal with individuals, only legal entities. The left-wing parties are PSOL, PC do B and Solidariedade.

They have their beliefs about capitalism, but they all know that if companies perish, there will be no jobs or revenue or national content, therefore the country perishes. As these parties work with the neediest sectors, they are perhaps more sensitive than right-wing parties.

They took an image risk by doing this because people get confused. There are literate people who don’t understand that we are working to build a rational fight against corruption. At the end of this ADPF, the Supreme Court ministers will regulate leniency agreements with objective parameters that will be valid for the future. This discussion in the STF is fundamental. And what has public opinion done? Vilified the court, saying that she is trying to alleviate the criminals.

The STF judged Lava Jato cases, right? Was he himself also part of this unconstitutional state of affairs?
The STF judged things related to Lava Jato, but not leniency agreements. For example, it annulled President Lula’s processes. He understood that former minister Moro, when he was a judge, was suspected because he was interested in the criminal prosecution of the president. The STF also judged the Spoofing evidence, which reveals an indissociation between judge and accuser. The STF helped review the history of Lava Jato.

Is this state often used in cases of racism, deforestation?
It is a concept that concerns an alignment, sometimes an institutional alignment, to violate the Constitution. All of this that happened is what characterizes an unconstitutional state of affairs.

We have a judge in Brazil who prevented a candidate from running in 2018 and who later became Minister of Justice. If the illegal investigation by authorities, even the Judiciary, does not characterize this, nothing does. If the business devastation we are experiencing does not characterize this, nothing does.

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X-RAY | WALFRIDO WARDE, 50

Graduated in law and philosophy from USP (University of São Paulo), he has a master’s degree in law from the University of New York, in the United States, and a doctorate in the same area from USP.