Toffoli used quotes in 95% of the decision that favored Odebrecht

When suspending the payment of R$3.8 billion owed by Odebrecht under its leniency agreement, Minister Dias Toffoli, of the Federal Supreme Court (STF), used the space of three full pages to explain and substantiate his decision. This is 5% of a document with 62 pages, almost entirely filled with allegations from the group and citations from other STF decisions.

When analyzing the request, the minister simply stated, in a paragraph, that, in the same process, he had already shared with several bodies and defendants the material seized from hackers who broke into cell phones and stole messages from Lava Jato prosecutors. On another page, he announced that he would do the same in favor of Odebrecht and that he would suspend the fine as he considered that a leniency agreement “must be the product of a free choice”.

“In fact, it is manifestly illegitimate, due to the absence of constitutional justification, the adoption of measures that aim to obtain collaboration or confession, under the pretext of their need for criminal investigation or instruction”, he wrote in another part of the same page , then citing STF precedents that disapprove of forced confessions.

Only on the penultimate and last page of the decision, Toffoli summarizes Odebrecht’s allegations – that there had been pressure on the company from the Federal Public Ministry’s task force and collusion between prosecutors and former judge Sergio Moro – to assess that there would be a “reasonable doubt” about the voluntariness in concluding the agreement on the part of the executives, thus justifying the need to stop payments.

“Now, given the information obtained so far within the scope of Operation Spoofing, in the sense that there would have been collusion between the prosecuting court and the prosecuting body to prepare a legal-procedural-investigative scenario that would lead those under investigation to adopt measures that best suited to such bodies, and not to the defense itself, I believe that, in principle, there is, at the very least, reasonable doubt about the requirement of the applicant’s voluntariness in signing the leniency agreement with the Federal Public Prosecutor’s Office that imposed her property obligations, which justifies, for now, the suspension of payments, as requested by Novonor [novo nome da Odebrecht]”, wrote the minister.

“In effect, the picture revealed in the initial statement gives sufficient plausibility to the theses raised, in addition to indicating identity or similarity between the premises adopted in the decision I made in RCL 43.007 and those verified in the present case, notably for the purposes of applying the power general caution”, Toffoli added afterwards.

This practically boils down to the minister’s understanding, who, in December, had already taken a similar decision, and in almost identical terms, in favor of J&F, suspending the fine of R$ 10.3 billion that the group had agreed to. committed to pay under a leniency agreement.

The brevity of the reasoning caught the attention of prosecutors. “Of the 62 pages, one and a half of the reasons remain and they do not demonstrate cause and effect between what was obtained from the recording at Vaza Jato and the supposed lack of voluntariness in the agreement. I didn’t understand the logic…”, noted, in a post on X, the attorney for the Paraná MP Rodrigo Chemin, who followed Lava Jato closely.

In the decision, Toffoli released the hacked messages to Odebrecht – 7 terabytes of data – so that lawyers could analyze the conversations to prove, if in fact, the collusion and alleged partiality of the prosecutors and Sergio Moro violated the executives’ voluntariness. The same was given to J&F defenders and will probably be done with Léo Pinheiro, former president of OAS, who has already asked the minister to suspend the payment of R$45 million, stipulated as a fine in his plea agreement.

The sequence of requests, followed by favorable decisions by Toffoli, encourages other defendants who confessed to corruption at Petrobras and other state-owned companies. After the decision in favor of Odebrecht, lobbyist João Augusto Rezende Henriques and operator Lúcio Funaro filed requests for the charges to be annulled.

What did Odebrecht say, after all?

Toffoli dedicated 48 pages of his decision to reproducing, in quotation marks, Odebrecht’s allegations. The group initially reports how the negotiations to adhere to the leniency agreement took place, highlighting several decisions by Moro that led to the arrest of executives, including Marcelo Odebrecht, then president of the company.

The facts are presented in a dramatic way, leading us to believe that there was undue pressure, through search and seizure operations, to force Odebrecht to collaborate with the investigations. “Despite ongoing negotiations, persecutory measures continued. On October 19, 2016, almost a month before the individuals signed the Confidentiality Agreement, the then President of the Company was the target of a third preventive arrest warrant by former Judge Sérgio Moro”, highlight the lawyers.

Next, the company’s defense reproduces a considerable part of the request to suspend the fine presented by J&F, in which this group claims to have been victims of the same pressure exerted by Odebrecht – although they had been investigated in different operations, by other prosecutors. As Toffoli had already decided in favor of the holding company of brothers Joesley and Wesley Batista, the repetition of what their defense presented reinforced the request.

“J&F, like Odebrecht, was also a victim of the ‘pau de arara of the 21st century’ and the ‘anti-corruption cover-up’ which were the operations that culminated in the Applicant’s leniency agreement. In other words, J&F and Odebrecht are in the same situation, which justifies this extension request”, said J&F, reproducing in turn, expressions coined by Toffoli himself in September, when he annulled the evidence provided by Odebrecht – in this decision , he also wrote that the arrest of President Luiz Inácio Lula da Silva (PT) would have been one of the biggest miscarriages of justice in the country’s history.

Odebrecht’s petition then goes on to pejoratively describe Lava Jato’s methods: preventive arrests with “long periods of time”, “very high custodial sentences”, “instrumentalization of the media”, “pressure on the Judiciary” and “inquisitory techniques for conducting procedural.”

Then there is a long section of reproduction of messages exchanged between the task force prosecutors which, in the defense’s view, would demonstrate the MPF’s coercion to close the leniency agreement. “The messages to which the Applicant has already had access within the scope of Operation Spoofing reveal a worrying scenario worthy of the intervention of this E. STF, characterized by partiality in judicial activity, abuses in the ‘intelligence strategies’ of the Task Force and orchestrated actions by authorities to promote the economic ruin of one of the largest Brazilian companies in the infrastructure sector”, he says.

Part of the alleged dialogues – the integrity and authenticity of the messages were never attested by the Federal Police – deals with obtaining the systems Drousys It is MyWebDay, used to record bribe payments and obtained from Switzerland. Odebrecht’s defense maintains that the dealings with foreign authorities were irregular, because they did not go through the Department of Asset Recovery and International Legal Cooperation (DRCI), a body linked to the Ministry of Justice, and which officially forms international investigation partnerships between Brazil and other countries.

At the time, Lava Jato prosecutors presented the request to obtain it from the agency, but according to Odebrecht, the messages would show that they obtained some parts earlier, in direct contact with Swiss MP authorities.

Another part of the highlighted messages indicates conversations in which prosecutors put together strategies, mainly to guarantee the participation of Emílio Odebrecht, Marcelo Odebrecht’s father and former president, in plea bargain agreements.

In the last part cited by Toffoli, Odebrecht accuses the MPF of not fulfilling its part of the agreement, that is, of avoiding new fines from state MPs and the Federal Audit Court (TCU). Furthermore, the company claims that the country’s economic difficulties in recent years have cooled the market, preventing the group’s companies from being able to make a profit and, therefore, honor payments, to the point of entering into judicial recovery.

“Although the Company’s cash flow projection was, in theory, based on expectations existing at the time, several factors outside the Group’s management significantly harmed its finances, worth highlighting: (i) economic growth below expectations in Brazil and in other relevant markets in which the Group operates; and (ii) the abrupt reduction in demand from the public and private sectors in Brazil, especially in the civil construction, transport infrastructure and mobility markets, including as a result of Operation Lava Jato, whose inertia in complying with the guarantees offered in the Agreement only worsened the desired business resumption”, says the petition.

At the end of the decision, Toffoli did not set a deadline for Odebrecht to analyze the Operation Spoofing files – which seized the hackers’ material – nor to review its agreements with federal agencies. As a result, there is no provision for a judgment on the merits of the action – the cancellation or reduction of the fine – by the STF plenary. Among lawyers and in the market, it is taken for granted that payment will no longer be resumed.