Prosecutors try to shield Toffoli’s decision – 09/07/2023 – Power

Public prosecutors must appeal Minister Dias Toffoli’s decision that invalidated the use of evidence arising from Odebrecht’s leniency agreements. With no real expectation of being able to reverse this point of the decision, they try to shield members of the MPF (Federal Public Ministry) from possible civil and criminal punishments.

According to the president of the National Association of Public Prosecutors (ANPR), Ubiratan Cazetta, the entity is studying the best legal solution for the appeal to the Federal Supreme Court (STF).

According to Cazetta, the offensive must be carried out in conjunction with Ajufe, an entity for federal judges, as magistrates could also be affected by the decision.

Embargoes for clarification are being studied, which are appeals in theory to clarify doubts, or an appeal, which would be submitted to the Second Panel of the STF, of which Toffoli is a member.

On Wednesday (6), the minister determined that the evidence arising from Odebrecht’s leniency agreements and also from the Drousys and MyWebDay systems —respectively of internal communication and accounting and control of payments of undue advantages— are useless in any context or degree of jurisdiction.

The decision was made in a lawsuit initially filed in 2020 by President Lula (PT) and applies to all processes that use such evidence. The PT member’s representative in the case today is Valeska Zanin Martins, wife of minister Cristiano Zanin, who advocated for the president in the Lava Jato cases.

In his decision, Toffoli also ordered several bodies, such as the PGR (Attorney General’s Office) and the TCU (Federal Audit Court), to determine the responsibility of public agents who acted in the signing of leniency agreements for possible liability. in the functional, civil and criminal spheres.

It also ordered the AGU (Attorney General of the Union) to immediately investigate possible civil liability for the damages caused by the Union and its agents.

Following the minister’s decision, the AGU, which provides the government’s legal representation, announced the creation of a task force to investigate possible deviations by public agents due to decisions against Lula in Lava Jato.

The body says it will “promote the repair of damages caused by decisions handed down by the Court of the 13th Federal Criminal Court of the Judiciary Subsection of Curitiba-PR, against Luiz Inácio Lula da Silva, current president of the Republic, as well as by members of the Federal Public Ministry as part of the so-called ‘Operation Lava Jato'”.

The Supreme Court had already declared the evidence of Odebrecht’s systems to be useless in response to individual requests made by the defenses.

Decisions on the case were being given by the then minister Ricardo Lewandowski, who retired in April, in procedures that were inherited by Dias Toffoli.

The decisions imploded remaining cases from the various arms of Lava Jato spread across the country and benefited targets including vice-president Geraldo Alckmin (PSB) and the mayor of Rio, Eduardo Paes (PSD).

Initially, at the request of Lula’s defense, at the time led by Zanin, Lewandowski had interrupted actions against the PT member on the grounds that the integrity of the evidence from these systems was corrupted, especially because the files were transported inappropriately.

In messages exchanged on the subject, which were accessed by hackers and later obtained in Operation Spoofing, prosecutors said that the files were handled in supermarket bags, without care for their preservation.

It is because of these precedents that Cazetta believes that the reversal of the invalidation of the evidence arising from the accusation is unlikely. The same expectation, he says, does not apply to what goes beyond this point.

The ANPR must argue in its appeal to the Supreme Court that questions relating to the conduct of prosecutors had already been referred by Lewandowski to the General Inspectorate of the MPF and the National Inspectorate of the CNMP (National Council of the Public Prosecutor’s Office).

According to the entity, the bodies did not find any irregularity and this conclusion was communicated to the STF, but was not included in Toffoli’s decision.

The association of prosecutors also argues that the AGU and TCU do not have the power to investigate members of the Public Ministry and the Judiciary in the exercise of their functions.

The entity’s note classified the procedures adopted by prosecutors in collaboration with authorities from other countries as legal.

“It must be clear that the object of the decision is the validity or otherwise of the evidence in President Lula’s case”, says Cazetta.

The ANPR also refuted the use of the word torture by the Supreme Court minister to refer to Lava Jato.

“It is not reasonable (…) to attempt to attribute to public agents, without any minimum element, the commission of the crime of torture or even the deliberate intention of causing harm to the Brazilian State”, says a note released by the association.

In the decision, full of nods to Lula, Toffoli wrote that agents involved in the operation “disrespected due legal process, failed to comply with superior judicial decisions, subverted evidence, acted with bias and outside their sphere of competence.”

“Finally, in the final analysis, they purposely did not distinguish between innocent people and criminals. They used, as I already said in the Second Panel’s trial, true psychological torture, a 21st-century macaw’s stick, to obtain ‘evidence’ against innocent people. “, continued.

The organization Transparency International also spoke out about Toffoli’s decision and said it will have a “systemic effect”, resulting in widespread impunity in hundreds of cases.

The entity compared the minister’s actions to his other decision, in 2019, which accepted a request from the defense of Flávio Bolsonaro (PL-RJ) to invalidate the use of data in Coaf (Financial Activities Control Council) and also had a cascading effect on other corruption investigations.

“It is still possible that the STF will correct the minister’s decision again before its systemic effects materialize” and the country suffers damage to its international reputation, says the NGO.

Former judge Sergio Moro, now a senator for União Brasil-PR, and former prosecutor Deltan Dallagnol also criticized the Supreme Court minister’s measure. Deltan stated that the Lula government is equipped to persecute opponents. The two were the main symbols of the operation launched in Paraná and left their positions to enter politics.