RIO – The recent decisions by Minister Dias Toffoli, of the Federal Supreme Court (STF), to suspend the payment of fines signed in the leniency agreements of Odebrecht (currently Novonor) and J&F have reignited the debate surrounding the validity of the evidence and information collected by Operation Lava Jato and about the use of messages obtained from the hacking of cell phones of prosecutors from the Federal Public Ministry of Curitiba – a case investigated in Operation Spoofing – to support decisions that benefit defendants in the Court.
The construction companies involved in the corruption scandal that brought more than 415 politicians from 26 parties into the crosshairs of the courts want to review the leniency agreements – when representatives of the investigated companies commit crimes to obtain benefits in possible convictions.
The leniency agreements were signed by representatives of companies such as Odebrecht, J&F, OAS and Camargo Côrrea during the Lava Jato investigations. All of them took part in irregularities, whether in paying bribes to politicians or in bidding fraud, for example.
To reevaluate the agreements, the companies use as an argument the need to include new evidence in the process and evidence that the investigation may have been compromised during the process of collecting evidence by Lava Jato prosecutors. The questioning is based on the exchange of messages between members of the Public Ministry of Paraná and the then judge of the 13 Federal Criminal Court of Curitiba Sérgio Moro, hacked by Walter Delgatti Netto and published in the press.
Conversations indicate that Moro would have guided Lava Jato investigations by suggesting a change in the order of phases of the operation, giving advice, providing clues and anticipating a decision to Dallagnol. Lava Jato members never recognized the authenticity of the messages.
The content was considered by the STF, for example, in a case such as the annulment of all decisions taken by Moro against the former governor of Rio, Sérgio Cabral, and in the trial that made Moro a suspect for acting in cases involving President Lula – the trial was in 2021.
At the time, the then rapporteur of Lula’s case at the Court, Minister Ricardo Lewandowski, decided to grant the defense access to messages exchanged between prosecutors and Moro, as explained by criminal lawyer Vera Chemin.
“This imbroglio dates back to 2020, when current president Lula filed a Constitutional Complaint seeking to access the files of the leniency agreement related to Odebrecht and its content, the exchange of correspondence between the then Operation Lava Jato and authorities from other countries, the testimonies , expertise and the amounts paid by Odebrecht and, finally, requests the nullity of all decisions taken within the scope of this operation”, he explained.
According to Vera, Dias Toffoli’s decision is based on the decision of the Second Panel of the STF due to the incompetence of the 13th Criminal Court of Curitiba and the declaration of suspicion of former judge Sérgio Moro and other public prosecutors, “which resulted in the unreliability of the evidence collected by that Court, due to its contamination”.
“One cannot fail to observe the blatant illegality of evidence obtained through messages captured by hackers, despite having been examined by the Federal Police and accepted by the Rapporteur, considering that that means of obtaining evidence is, constitutionally illicit, as can be proven by Section LVI of article 5 of the 1988 Federal Constitution?, he explains.
Then president of the Second Panel of the STF in 2021, minister Gilmar Mendes has already stated in trial that it is “shocking” and “embarrassing” that prosecutors and the defense of former judge Sérgio Moro question the authenticity of the messages.
“Is this a work of fiction? Was it tampered with at what point? Let’s admit that it is a work of fiction. So let it be proven that these dialogues never existed”, he argued in one of his votes.
Report from Federal police concluded in April 2021 that it is not possible to confirm the authenticity of the task force’s hacked messages. According to Vera Chemin, “regardless of the issues of merit involved in them and which would have the potential to corroborate the alleged bias of Moro and the prosecutors involved, it would be essential that those messages were proven by other evidence and indications strong enough to be included in the said processes “.
“Messages captured by hackers could not be recognized as suitable evidence, according to the Federal Constitution of 1988 and legislation relating to the subject”, he said.
STF annuls all evidence obtained through the Lava Jato system
The convictions of Lava Jato defendants are also being reviewed after Minister Dias Toffoli annulled any and all evidence obtained from the Drousys and My Web Day B systems used as a result of the leniency agreement signed by Odebrecht, within the scope of Operation Lava Jato.
According to the minister, the evidence was “contaminated” and therefore cannot be used. Toffoli also considered that the Department of Asset Recovery and International Legal Cooperation (DRCI) of the Ministry of Justice reported that it was not found “record of request for international legal cooperation to investigate the process in which Odebrecht’s leniency agreement was approved nor request of active cooperation presented by a Brazilian authority for the purpose of receiving content from the Drousys and My Web Day B systems”.
Odebrecht says it was pressured to close the deal to guarantee its financial and institutional survival. Toffoli acknowledged that there is “reasonable doubt about the voluntariness requirement.”
Payments have been suspended while the company analyzes documents from Operation Spoofing, which arrested the Lava Jato hackers, in search of messages that may indicate irregular actions by the task force’s prosecutors.
It is the second leniency agreement suspended by order of Toffoli. He had already benefited J&F with a similar decision.