The order by Minister Dias Toffoli, of the Federal Supreme Court (STF), to investigate Transparency International came from accusations made by J&F – in the request made last year to suspend the fine of R$ 10.3 billion that the company was supposed to pay in its leniency agreement, and a request for an investigation against prosecutors from the Federal Public Ministry also presented last year by deputy Rui Falcão (PT-SP).
Both accused the entity, which operates globally in the fight against corruption, of trying to illegally manage the application of part of the fine, in the amount of R$2.3 billion, which, according to the leniency agreement, would be allocated to social projects. Transparency International says that it never received any part of these resources, that there was no such provision in the agreement in its partnership with the MPF, and that it offered a social investment plan without financial compensation.
Toffoli’s decision to investigate the NGO for alleged “misappropriation of public resources”, arising from the fine, caused astonishment in the MPF, since several documents in the minister’s possession show that there was no provision for payment for the social investment plan.
“This Memorandum does not provide for any type of remuneration, and the transfer of resources for IT to carry out the activities provided for therein is prohibited”, says a clause in the document that celebrated the partnership, signed on December 12, 2017 by all parties involved .
The R$ 2.3 billion was part of a total of R$ 10.3 billion that J&F committed to disbursing when signing the leniency agreement, in the form of fines and compensation, for damages caused in corruption schemes that it confessed to having Participated in Caixa Econômica Federal, BNDES, Petros and Funcef (pension funds for employees of Petrobras and Caixa, respectively).
In December last year, Toffoli suspended all payments, based on a request from J&F that highlighted undue pressure from the MPF to conclude the agreement in 2017. It was in this request that the group accused Transparency International of acting in “collusion” with prosecutors from the Operation Greenfield, which investigated the group’s business with the public sector.
“Lava Jato committed abuses against J&F in order to act in collusion with Transparency International to force its sale of assets,” said J&F’s request to suspend the fine. The agreement was not made with Lava Jato, based in Curitiba, but with the Greenfield task force, in Brasília. J&F, however, alleged that the same allegedly coercive methods used by prosecutors who investigated corruption at Petrobras were reproduced among those who worked to investigate crimes involving the group.
“To properly understand the magnitude of the abuses committed against J&F, it is essential to take a holistic look at how Lava Jato, through nebulous relationships between prosecutors, businesspeople and the NGO Transparency International, distorted legal instruments to combat corruption to create a true scheme of pressure and harassment against the Claimant and its main administrators: the brothers Joesley and Wesley Batista”, wrote the group’s legal director, Francisco de Assis e Silva, in the request addressed to Toffoli.
The allegation is that the pecuniary obligations of the agreement forced J&F to sell one of its most important companies in Brazil, Eldorado Celulose – a transaction that the group is currently trying to undo in court, in an action that has as one of its lawyers Roberta Rangel, who She is Toffoli’s wife. Without clear proof or evidence, the group accuses MPF prosecutors of having an interest in selling the company, in order to benefit a businessman who would take over its command.
Agreement was not fulfilled
The problem pointed out by the MPF is that, before accusing Transparency International of forming a “collusion” with prosecutors to harm the group in negotiations to close the leniency agreement, J&F would not have honored the payment for social projects. The agreement provided that, in addition to compensating the injured public bodies with R$8 billion, J&F would invest in the areas of education, health, environment, research promotion and culture.
Transparency International’s participation in this process was agreed in December 2017, in a memorandum signed by the entity, the MPF and J&F. In addition to not providing for payments to the entity, it established that it would offer, free of charge, “design and structuring of the governance system for the disbursement of resources”. In practice, the NGO would put together a plan for J&F to allocate the money to other private entities, including new ones that could be created.
It is because of this prediction that Toffoli ordered an investigation by Transparency International, based on the assumption that the resources, as they come from fines, should be part of the Union’s cash flow, and therefore, their allocation method should go through Congress and the Executive , which approve the public budget.
In March 2018, Transparency International delivered the work plan for social investments. It predicted that, by February 2019, the entity would present the initiative to civil society organizations and communicate the start of receiving projects. “TI will refrain from requesting resources for the entire period in which it is supporting the initiative”, recorded the document.
In April 2019, Greenfield attorneys charged J&F executives in relation to investments in social projects. According to the MPF, disbursements had not started.
“J&F should be recommended to immediately begin implementing the social projects agreed in the leniency agreement (considering that there has not yet been any start of compliance with this important obligation to repair the social damage provided for in the agreement), respecting the best practices indicated by Transparency International , or else that promotes the payment of social reparations in favor of the Fund for the Defense of Diffuse Rights”, the MPF communicated at the time.
J&F currently says that the payments were not made at the time because it understood that the participation of Transparency International in the indication of social projects would not be legal and was not foreseen in the leniency agreement, but would have been “imposed” later by the MPF.
Compliance with Transparency International’s recommendations was optional, since the resources could be deposited in the Fund for the Defense of Diffuse Rights. It is a fund administered by the federal government to repair damage caused to the environment, consumers and assets of historical and cultural value.
In the same letter sent to J&F in 2019, the public prosecutors warned that, if the group chose to carry out social investments on its own, it should, in any case, “comply with the best governance and control practices recommended by TI [Transparência Internacional]”. Otherwise, the amounts would not be deducted from the fine. J&F says it made social investments, but that they were not deducted from the R$2.3 billion debt.
It is not known exactly what the investigation determined by Toffoli will be like. He requested documents from the Attorney General’s Office (PGR), the MPF’s top body, on monitoring compliance with the J&F leniency agreement, and also on how Transparency International would participate in monitoring the projects. The PGR never pointed out illegalities in the case. The analysis now, according to Toffoli, will be the responsibility of the Attorney General’s Office (AGU) and the Comptroller General of the Union (CGU), both linked to the federal government.
Decision signed by Toffoli
In addition to the suspicion, so far unfounded, that Transparency International would receive resources, another questionable point of the decision is the fact that it was signed by Toffoli.
In October last year, the then Attorney General of the Republic Elizeta de Paiva Ramos, who held the position on an interim basis, informed the STF that the case should not be analyzed by the minister. The process in which J&F requested the suspension of the fine and accused Transparency International was not related to the group, but dealt with Odebrecht’s leniency agreement.
This is a 2020 action by President Luiz Inácio Lula da Silva whose initial objective was to obtain the full agreement from the contractor. Since then, the process ended up serving the president’s defense to obtain cell phone messages from prosecutors clandestinely captured by hackers, annul the remaining evidence against him and also benefit, in the same way, dozens of Lava Jato defendants.
Toffoli’s decision is monocratic, and there is no prediction of whether and when it will be analyzed by the other STF ministers.
Rui Falcão’s accusations, in turn, aimed to investigate Greenfield’s attorneys and, therefore, were initially filed with the Superior Court of Justice (STJ), where some of them have privileged jurisdiction. The president of the court, Humberto Martins, sent the case to the STF and Toffoli, as he understood that the case was related to Lava Jato.
He was based on a statement by deputy attorney Lindora Araújo, former right-hand man of Augusto Aras, who commanded the PGR between 2019 and 2023 and was notable for his opposition to Lava Jato. It was he who, in 2020, ordered internal MPF bodies to investigate the legality of the partnership with Transparency International.