Odebrecht agreement was approved by the STF

In a statement, the National Association of Public Prosecutors (ANPR) refuted minister Dias Toffoli’s accusations that Lava Jato had practiced “psychological torture” to obtain evidence from “innocent” people and alleged irregularities in the Odebrecht leniency agreement. , whose evidence was annulled by the minister last Tuesday (6).

The entity, which represents the members of the Federal Public Ministry, stated that “it is not reasonable, based on the assertion of procedural defects resulting from the suspicion of the court or its incompetence, to intend to impute to public agents, without any minimum element, the committing the crime of torture or even the deliberate intention of causing harm to the Brazilian State” – another accusation launched by Toffoli in his decision.

The ANPR says that the discussion about facts involving Lava Jato must be “guided by a technical, objective analysis, which preserves the institutions and does not give in to the environment of polarization and rhetoric that prevents the understanding of reality”.

“The leniency agreement signed by the Federal Public Ministry with Odebrecht resulted from valid negotiation, duly approved by the Federal Supreme Court itself, with the participation of several public agents, guided by regular activity”, says another excerpt from the note.

On Tuesday (6), Toffoli annulled all the evidence provided by Odebrecht in its leniency agreement, as part of an action by President Luiz Inácio Lula da Silva that challenges the integrity of the company’s systems that recorded payments to hundreds of politicians, businesspeople, lobbyists and money changers. With the decision, all of them will now be able to annul convictions they suffered in court. Furthermore, based on messages illegally captured by hackers, the minister ordered investigations against prosecutors and judges who participated in the agreement, such as the impeached deputy Deltan Dallagnol and senator Sergio Moro.

The ANPR says that Toffoli’s statement, initially alleged by Lula’s defense, that access to the Drousys and Mywebday systems, used to manage and record the payment of bribes, is not correct, did not comply with the formal international cooperation procedure. The company itself, upon deciding to collaborate with the investigations, delivered a copy to the MPF, and examinations carried out by the Federal Police and the Attorney General’s Office attested to the authenticity and integrity of the material.

Furthermore, contrary to what Toffoli says, the Department of Asset Recovery and International Legal Cooperation of the Ministry of Justice (DRCI/MJ), the central authority that represents the Brazilian State in international cooperation, monitored and approved the entire procedure with Switzerland , where Odebrecht systems were stored.

The ANPR also states that the leniency agreements signed by Odebrecht with Brazil, Switzerland and the United States are independent, and that the legislation allows the countries to exchange information from their respective investigations, without punishing the company for the same facts. The regularity of the procedures had already been confirmed by the MPF Internal Affairs Department in an investigation, by order of retired minister Ricardo Lewandowski.

The association also expressed opposition to Toffoli’s order that the Federal Comptroller General (CGU, the Executive’s oversight arm; the Federal Audit Court (TCU), linked to Congress; and the Federal Attorney General’s Office (AGU) , which defends federal bodies, including the MPF itself, open investigations into the prosecutors and judges involved in the negotiations and conclusion of the Odebrecht leniency agreement.

“The Organic Laws of the Public Ministry and the judiciary define the competent authorities for investigating the functional performance of their members, which is a guarantee of the free exercise of their constitutional functions, in order to avoid pressure and threats arising from external powers. The AGU and the TCU do not have the power to investigate members of the Public Ministry and the Judiciary, in the exercise of their final activities, and such a procedure is not appropriate in the democratic state of law, precisely to rule out any attempt to cease the activities of bodies whose Attributions are provided for in the Federal Constitution.”

In conclusion of the note, the ANPR says it is necessary to respect the work of dozens of members of the MPF who worked on the case, in addition to judges from different instances, federal police officers and employees of the CGU and Federal Revenue, “among others who acted in the strict exercise of its functional responsibilities, with concrete financial results, reverted to the public coffers”.

Read the full ANPR note below:

“Public Note

06 September 2023

The National Association of Public Prosecutors, due to the decision handed down in the Federal Supreme Court, in the files of Complaint 43007, highlights the need for the discussion on the facts involving Operation Lava Jato to be guided by a technical, objective analysis, which preserve institutions and do not surrender to the polarizing and rhetorical environment that prevents understanding of reality.

It is not reasonable, based on the assertion of procedural defects resulting from the suspicion of the court or its incompetence, to attempt to attribute to public agents, without any minimum element, the commission of the crime of torture or even the deliberate intention to cause harm to the State Brazilian.

The leniency agreement signed by the Federal Public Ministry with Odebrecht resulted from valid negotiation, duly approved by the Federal Supreme Court itself, with the participation of several public agents, guided by regular activity.

The statement that access to the Drousys and Mywebday systems, maintained by Odebrecht to record bribe payments, did not comply with the formal international cooperation procedure is not correct.

Due to the leniency agreement, Odebrecht delivered a copy of the systems directly to the MPF in Brazil.

Additionally, to confirm the integrity of the systems, the MPF requested Switzerland, through a regular international legal cooperation procedure, in which the Department of Asset Recovery and International Legal Cooperation of the Ministry of Justice (DRCI/MJ) acted, for a full copy of the systems that had been seized in an autonomous Swiss investigation.

The request, formulated on May 17, 2016, was forwarded by DRCI to the Swiss authorities on June 3, 2016, through Official Letter 3300/2016/CGRA-SNJ-MJ, and, on September 28, 2017, the DRCI forwarded the response to the request to the MPF (Official 7676/2017/CGRA-DRCI-SNJ-MJ).

The entire delivery and receipt procedure for the hard drives containing the systems is documented and was attested by technical reports prepared by the Research and Analysis Secretariat of the Attorney General’s Office (SPPEA/MPF) and by an expert report prepared by the Federal Police (REPORT No. 0335/2018 – SETEC/SR/PF/PR), highlighting the mentions made in these reports to the processing of media received from foreign authorities through the DRCI.

The agreement signed by the Odebrecht company with the MPF is not an international agreement. The United States and Switzerland are not parties to the Brazilian agreement, and vice versa, as each country acted within its sphere of jurisdiction, signing separate and absolutely independent agreements with the company. The mention of the USA and Switzerland only indicates that there was coordination between the different jurisdictions, to avoid duplication of punishments for the company, as the amounts paid in Brazil would be deducted from the amounts payable in the United States, a procedure that is recommended in manuals and international conventions to combat corruption. For this reason, the agreements signed by the USA and Switzerland with the company Odebrecht remain valid and are not affected by the decision of the Federal Supreme Court.

This same procedure – signing leniency agreements with companies in Brazil, concomitantly with the signing of agreements by foreign authorities with the same company – has already been used in several other cases. It is mentioned that there are records of multiple agreements signed by the MPF and the Attorney General’s Office (AGU), together with the Comptroller General of the Union (CGU), using the same procedure, without the need for cooperation. international legal system specifically so that each authority could conclude its agreements with internal validity. Likewise, the various countries that have already signed similar agreements with companies investigated in Lava Jato – including the United Kingdom, France, Singapore, as well as the USA and Switzerland – have never needed to transmit requests for international cooperation to Brazil to enable the signing of their own agreements. .

When it became necessary to transmit and receive any evidence, information or values, between national and foreign authorities, the MPF always followed precisely the procedure determined by legislation, making the requests in court and transmitting them through the DRCI/MJ.

The award-winning collaboration agreements signed with Odebrecht directors and employees, which also made use of evidence extracted from the company’s systems and which were voluntarily delivered, were signed by the Attorney General’s Office and approved by the Federal Supreme Court itself, which, at the time , recognized its validity. The leniency agreement was approved by the 5th Coordination and Review Chamber of the MPF, as well as by a federal court.

The questions raised by Exmo. Min. Dias Toffoli had already been sent by Min. Ricardo Lewandowski to the competent spheres for investigation – the General Inspectorate of the MPF and the National Inspectorate of the National Council of the Public Ministry. After extensive analysis of evidence and information, the legality of the procedure adopted by the MPF in agreements involving Odebrecht and its directors and employees was recognized. Once the investigation was concluded, the conclusion of the MPF General Inspectorate was communicated to the STF, but such documents were not mentioned in the decision given and need to be expressly analyzed.

The Organic Laws of the Public Ministry and the judiciary define the competent authorities for investigating the functional performance of their members, which is a guarantee of the free exercise of their constitutional functions, in order to avoid pressure and threats arising from external powers. The AGU and the TCU do not have the power to investigate members of the Public Ministry and the Judiciary, in the exercise of their final activities, and such a procedure is not appropriate in the democratic state of law, precisely to rule out any attempt to cease the activities of bodies whose Attributions are provided for in the Federal Constitution.

Finally, it is necessary to respect the work of dozens of members of the Federal Public Ministry who acted in the leniency agreement signed with the company Odebrecht, magistrates from different instances, federal police officers, public agents from the CGU and Federal Revenue, among others who acted in the strict exercise of its functional duties, with concrete financial results, reverted to the public coffers.”