Majority of the STF decides to archive two cases against Kassab involving Odebrecht

The ministers of the Federal Supreme Court (STF) decided, by majority, to close two investigations against the president of the PSD, Gilberto Kassab, related to alleged transfers from the former construction company Odebrecht (currently Novonor) as campaign donations and works carried out in São Paulo between the 2008 and 2014. According to investigations, the value totaled more than R$20 million.

The archiving was decided during a trial in the virtual plenary session of the STF held between March 15th and 22nd, and the decision was published this Monday (25th).

“The Court, by majority, granted the appeal to order the shelving of this investigation, […] in accordance with the Rapporteur’s vote [Dias Toffoli]defeated ministers Alexandre de Moraes, Cármen Lúcia, Rosa Weber, who had already cast a vote in a previous vote
[antes de se aposentar]and Luís Roberto Barroso [Presidente]”, pointed out the decision.

In total, there were 6 votes in favor and 4 against the process originated in appeals presented by Kassab against investigations based on Lava Jato allegations. After postponements, the case returned to the virtual plenary after being canceled in March and ended with the majority of ministers voting to order the case to be archived.

Toffoli’s vote was followed by Gilmar Mendes, André Mendonça, Edson Fachin, Nunes Marques and Luiz Fux. Toffoli argued that there were not enough elements to support the accusations against Kassab, highlighting the lack of consistent evidence.

“In the case in question, so far there are no consistent, plausible accusatory hypotheses, depending on the minimum elements of evidence (independent of collaboration). On the contrary: to affirm the viability of the investigations, logical leaps would be necessary, based on non-existent premises or on presumptions not admitted in criminal proceedings. In this scenario, there is a duty for the Supreme Court to prevent the continuation of the illegal constraint that weighs on the person being investigated”, he wrote (see in full).

Toffoli concluded by stating that “there is no reason or proportionality in the state’s actions that determine the continuation of such an unsuccessful and time-consuming investigation”.

On the other hand, minister Alexandre de Moraes disagreed with the rapporteur and defended that the case be referred to the São Paulo Electoral Court for continued investigations. Moraes alleged that Odebrecht’s award-winning collaborations contained elements that corroborated the accusations of passive corruption and money laundering against Kassab.

Moraes’ vote was supported by Cármen Lúcia, Roberto Barroso and Rosa Weber. Rosa Weber, however, had already voted in a previous session, while minister Flávio Dino did not participate in the trial, and Cristiano Zanin declared himself unable due to his involvement as a lawyer in Lava Jato.

In September last year, Toffoli annulled the evidence obtained in the leniency agreements of the former Odebrecht collected in the Drousys and My Web Day B systems, which were used in the sector that became known as the “bribery department” – originally called the Structured Operations Sector .