Removal of Marcelo Bretas accelerates the dismantling of Lava Jato do Rio

The decision of the National Council of Justice (CNJ) that removed federal judge Marcelo Bretas from office paves the way for the demolition of Lava Jato in Rio de Janeiro similar to what happened with the operation in Paraná, starting in 2021, after the declaration of suspicion former judge Sergio Moro, by the Federal Supreme Court (STF), in cases against Luiz Inácio Lula da Silva. Alleging that they were victims of a partial performance, several defendants must now ask the superior courts of Brasilia to annul the convictions and investigations in charge of Bretas.

This is the projection of judges, prosecutors and lawyers consulted by the report to understand the effects of the initiation of three disciplinary proceedings against Bretas last Tuesday (28). The first sign came from the defense of former governor Sergio Cabral, one of the main targets of Lava Jato investigations in Rio, already sentenced to sentences totaling more than 400 years in prison for corruption schemes in various state bodies.

Daniel Bialski, one of the politician’s lawyers, has already announced that, based on the CNJ’s decision, he will appeal against sentences handed down by Bretas to annul some convictions.

“In all cases, I already complained that the 7th Court was not competent, that it had to preserve the principle of the natural judge and that some decisions were not impartial. From the moment that the CNJ points out that there are irregularities, which are serious, to the point of determining the removal of Dr. Bretas, as already claimed, signals that all the complaints, of all the defenses, or most of them, were not in vain. I got tired of saying that the competence was not his. Obviously, he denied it. But now that will have to be revisited”, said the lawyer to People’s Gazette.

The CNJ opened disciplinary proceedings against Bretas for alleged partiality in conducting the Lava Jato processes. The Brazilian Bar Association (OAB), author of one of the requests, accused him of “negotiating penalties, advising lawyers and combining strategies with the Public Prosecutor’s Office, in breach of the duties of impartiality, urbane treatment of the parties, disrespect for the prerogatives of the lawyers”. In addition to the entity, the mayor of Rio, Eduardo Paes, also represented against the judge. Another process was opened on the initiative of Minister Luís Felipe Salomão, National Inspector of Justice.

The accusations are in confidential records, but are based on complaints made in plea bargains awarded by lawyers, which point to the direction of investigations, in alleged combination with the Public Ministry, or political action by the judge. Bretas denies this and the Association of Federal Judges says that they are the result of an orchestrated movement to persecute him because of his actions.

In addition to Cabral, Bialski defends a businessman from the port sector and three other money changers investigated for currency evasion, targets of the “Câmbio, Desligo”, a phase started in 2018 that dismantled a money laundering network that would have moved US$ 1.6 billion. The lawyer says he intends to use the CNJ’s decision in favor of all of them.

For this, each defense must point out if and how Bretas would have acted with partiality or without competence in the specific case. In other words, decisions will be taken on a case-by-case basis, by other magistrates, whether in the first instance (substitute judge Caroline Vieira Figueiredo takes over from Bretas), at the Federal Regional Court of the 2nd Region (TRF2), at the Superior Court of Justice (STJ ) or the Federal Supreme Court (STF).

Annulment of acts of Bretas

A magistrate who knows the processes of the operation in Rio said, with reservation, that the tendency is for appeals to succeed in the STJ and, mainly, in the STF, which, for some time, has already handed down adverse decisions, annulling Bretas acts.

The most recent took place on February 24, when Gilmar Mendes, rapporteur for Lava Jato do Rio at the STF, ended an investigation against former governor of Rio de Janeiro Luiz Fernando de Souza, known as Pezão, of the MDB, former vice-president of Cabral. . He was suspected of receiving BRL 4 million from an earthmoving company via Caixa 2, in 2014, when he was elected. The suspicion was part of Sergio Cabral’s award-winning plea, invalidated by the STF in 2021.

Another occurred in November last year, when the Second Panel of the Court annulled the complaint filed against 26 elite lawyers accused of influence peddling before the superior courts of Brasilia, receiving funds that would have been diverted from Fecomércio do Rio – R$ 151 million , according to the Federal Public Ministry.

In 2021, following Minister Gilmar Mendes, the majority of the collegiate had already declared Bretas incompetent to authorize search and seizure against lawyers, in 2020, in the phase named “E$quema S”. They argued that it is not for the Federal Court, but for the state Court to investigate resources from the S System. Based on this, they also annulled the MPF’s complaint, saying that the accusations should come from the state MP.

The MPF team has also recently become the target of the cream of the legal world in Brasilia. Last year, the National Council of the Public Prosecutor’s Office (CNMP), a similar body to the CNJ, but which supervises the actions of prosecutors and prosecutors, suspended the coordinator of Lava Jato in Rio, Eduardo El Hage, for 30 days.

All because, in 2016, the Public Prosecutor’s Office in Rio released a notice, on its official website, detailing a complaint against former MDB senators Romero Jucá and Edison Lobão, for allegedly receiving R$ 10.6 million in bribes in the works of resumption of construction of the Angra 3 power plant by Eletronuclear. The CNMP considered that, as the investigation proceeded under secrecy of Justice, the Public Prosecutor’s Office could not divulge the content of the accusations.

The offensive against prosecutors was also facilitated by the management of Augusto Aras as Attorney General of the Republic and head of the Public Ministry. In 2020, amid plans to end the Lava Jato task forces in Paraná, São Paulo and Rio, he obtained authorization from the STF to access all documents from investigations in the three states.

This angered prosecutors. The Rio team contested the measure in the STF. In a demonstration, they stated, at the time, that the attorney general “has no hierarchical power to request information or dictate rules to prosecutors. “What is intended is a true investigation, with all due respect”, they protested, in vain.

In June 2021, when the last official Lava Jato balance sheet in Rio was released, the operation had already convicted 183 people in the first and second instance of Justice. Approximately R$ 20 billion were claimed in impropriety actions, plea bargaining or leniency agreements and criminal charges. 104 complaints were filed and 104 criminal actions were opened.

The investigations unraveled corruption schemes in the management of Sergio Cabral, Luiz Fernando Pezão, Wilson Witzel, at Eletronuclear, at the Legislative Assembly of Rio, at the Brazilian Olympic Committee, and in the Rio de Janeiro public transport sector.

It is still unclear whether Bretas will return to lead these cases. He will be removed from office until the end of the disciplinary process, which has no set deadline for completion. The OAB, where most of the accusations against the judge come from, did not propose a specific punishment for the magistrate. It can range from censorship to compulsory retirement.

If he has to leave the cases permanently, there will be an internal selection for another judge to assume his post on the 7th Federal Criminal Court.