Public Ministry is under pressure 10 years after becoming stronger – 06/17/2023 – Power

The political reaction to the June 2013 demonstrations helped the Public Prosecutor’s Office to guarantee its investigative power and expand investigation instruments, such as plea bargaining and leniency agreements.

Ten years later, prosecutors report fear after punishments due to abuses attributed to Operation Lava Jato. Lawyers, however, see improvement in the limits and controls for the body’s members.

The Public Prosecutor’s Office was one of the first to benefit from the “positive agenda” created by Congress cornered after the acts, with the aim of trying to respond to the demonstrations. On June 25, the Chamber of Deputies rejected PEC 37, which removed the power of investigation from the Prosecutors and made it exclusive to the police.

The score of 430 to 9 for rejecting the proposal was unimaginable before the June Journeys, according to Ubiratan Cazetta, president of ANPR (National Association of Public Prosecutors).

“Our reading at the time was of a very positive climate for the approval of the PEC [antes das manifestações]. There was at that time a significant growth in the number of police officers, at the same time that members of the judiciary and the Public Ministry could no longer compete. Despair hit many people [contrária à PEC]”, it says.

Before PEC 37 stood out in the myriad of protest agendas, commentator Arnaldo Jabor, from TV Globo, who died in 2022, criticized the “absence of causes” for the demonstrations. “Why don’t they fight against PEC 37? Maybe they don’t even know what PEC 37 is, the law of eternal impunity”, he said at the time.

After seeing the flag take to the streets, Jabor changed his assessment of the acts. “At first this move seemed like a pointless little provocation. Many wrongly criticized it, myself included.”

The positive agenda of Congress was extended in the following months, with the approval of anti-corruption laws and laws on criminal organizations. The first created the framework for leniency agreements and the second for award-winning collaboration, the main instruments of Operation Lava Jato, which began a year later.

Former prosecutor and impeached deputy Deltan Dallagnol (Podemos-PR) says that the laws passed in that period were essential for the advancement of investigations.

“Those changes concerned the investigation, and were essential for Lava Jato to exist. If we didn’t have a clear law on criminal organizations, our agreements would suffer much more questioning. The anti-corruption law gave us a strong goal to make agreements with legal entities “, it says.

The advancement of investigations and the media exposure of prosecutors gave strength to what Cazetta classifies as “a very complicated move” by the Public Ministry: institutional support for the campaign of “Ten measures against corruption” in 2015.

“The Public Prosecutor’s Office was involved as an institution in collecting signatures for what should have been a popular initiative bill”, says the president of ANPR.

The project did not go ahead and, little by little, the reaction to the alleged abuses by Lava Jato gained strength, especially after Vaza Jato —dissemination of messages between prosecutors from the task force and Deltan with the then judge and now senator Sergio Moro.

“There was a return to that, of having the entire political system walled up in one context. When things start to break down due to several factors, the notion arises that the Public Ministry needs to be controlled, weakened”, says Cazetta.

The STF (Federal Supreme Court), which at the beginning of the operation endorsed most of the investigative acts in Curitiba, began to impose defeats on the prosecutors. He vetoed the use of coercive conduct, changed the understanding of imprisonment after conviction in the second instance, and began to reject Moro’s attribution in criminal actions.

In Congress, one of the political reactions to the investigators’ alleged excesses was the approval of the abuse of authority law in 2019. In the same year, the anti-crime package changed the rules for signing collaboration agreements.

Lawyer Pierpaolo Bottini considers that the legislative changes were necessary due to the “misuse of the instruments created” in June 2013.

“We cannot generalize, but in some situations there was a misuse of these instruments, especially the award-winning collaboration. The law established that no one could be convicted based on the accusation. based on the accusation. Which is a mistake. It was an abusive interpretation of the law”, he says.

José Eduardo Cardozo, Minister of Justice at the time of the demonstrations, says that there was no climate to debate details about the laws passed in the wake of the protests. He says, however, that he does not know if it would be possible to predict what he considers a misuse of the instruments created.

“It was impossible to predict the distortions made based on that law. It was never imagined that they would use that law to arrest people to extract information from them. But life has shown us that the more precise non-regulation of award-winning information brought about these consequences”, says the former minister.

Deltan says the changes to the legislation “were designed to end the fight against corruption.” The ex-prosecutor points out as the most harmful alteration the prohibition of the Public Prosecutor’s Office to negotiate in the collaboration agreements regimes of penalties different from those foreseen in the Penal Code. In practice, he required whistleblowers to stay in jail longer.

“What was the main concern of the people who made the agreement? They want to spend the least amount of time in prison. Our concern is that he has a fair sentence, that he is rewarded for his collaboration, and that we can keep him at risk back to prison. jail if he fails to comply with the agreement,” said Deltan.

Bottini claims that, in fact, the changes made the delation less attractive.

“In 2013, emphasis was placed on fighting corruption, but in a wrong way, through arbitrariness and the misuse of legal instruments. This was somewhat corrected in 2019. Now it is necessary for public authorities to carry out the fight against corruption, which is fundamental, within the new rules”, said the lawyer.

“It takes more work, it needs more proof. It cannot enact precautionary measures only based on a plea bargain. But what is expected is that the accusing State has work to formulate its accusations, especially when it comes to the right to freedom.”

The backlash was not limited to changes in laws. The CNMP (National Council of the Public Ministry) began to apply punishments to members of Lava Jato, after pressure from Congress that threatened to change its composition.

Attorney Diogo Mattos received a penalty of dismissal for having paid for the installation of a billboard in honor of Lava Jato and its members.

However, Cazetta points to the punishment of prosecutor Eduardo El Hage, from Lava Jato in Rio de Janeiro, as the one that most scared members of the Public Ministry, critics or not of the operation.

The board decided in December to suspend El Hage for 30 days for allegedly having released a complaint with confidential data from an investigation against former emedebista senator Romero Jucá.

The disclosure questioned by the CNMP took place through an official note published on the MPF website and followed standards adopted by the PGR itself. The result of the judgment collided with the report of the Prosecuting Commission, which opined that the accusation was unfounded.

“In a normal moment, there would not be this punishment. Today’s fear is about the limits of disclosure of cases. It went from one extreme to the other. From a moment when everything the Public Ministry said was true, to another when nothing the Public Prosecutor’s Office does its job”, says Cazetta.

Former Minister Cardozo does not see excess in the recent punishments. “I don’t think there’s an overreaction. He’s used to a situation of unlimited power.”