The decisions of the minister of the (Supreme Federal Court) that annulled the targets of the case deal with processes whose initial requests for compensation and damages exceed R$ 17 billion.
These values were requested in the complaints presented by the Public Ministry, but in eventual convictions they were not always applied by the magistrates.
Over time, part of the amounts ended up incorporated into plea bargains and leniency agreements signed by individuals and legal entities who confessed to crimes and irregularities. Toffoli’s decisions did not nullify these agreements.
Another part of the cases were not sentenced or had already been partially overturned due to other court decisions.
By October, Toffoli had nullified or suspended actions related to almost 70 people. In almost 70 other cases, it determined that the evidence of Odebrecht’s denunciation used in the processes was useless — which paves the way for the nullity of the processes in other instances.
The minister was contacted by the STF, which reported in a note that Toffoli’s decisions “are extensions of the collegiate decision of the Second Panel, taken in February 2022 when he was not yet part of it, under the report of then minister Ricardo Lewandowski [hoje ministro da Justiça]whom he succeeded as rapporteur”.
The note highlights that more than one hundred extension requests, the majority of those presented, were denied. “It is also noteworthy that, regarding companies, the minister did not annul leniency agreements, as they are suspended and are currently in the process of negotiation between government and companies, in the files of ADPF 1051, under the report of minister André Mendonça”, he stated.
“In relation to the other individuals, evidence was annulled, the terms of the collaboration agreements were maintained, and the responsible judges will analyze the continuation of the processes.”
Lawyers and public prosecutors consulted by the report see the possibility of these decisions by Toffoli opening space for the validity of plea bargains to be questioned in court.
“The Constitution does not allow the use of illegal evidence, and a statement obtained through an illegal investigation cannot remain valid”, says Rodrigo Dall’Acqua, former legal director of the Institute for the Defense of the Right to Defense.
Leonardo Massud, professor of criminal law at PUC-SP, says that the decisions “do not open space for the indiscriminate annulment of all allegations, but only those in processes in which there is also a breach of the impartiality of the judgment”.
The Public Prosecutor’s Office’s calculations to request the amounts were made based on the losses caused to the State by the alleged irregularities. Typically, prosecutors and prosecutors charge a multiple of these amounts to those charged.
For example: a complaint filed in 2020 by the task force against (), Paulo Okamotto (former president of the Lula Institute) and Antonio Palocci (former Minister of Finance) dealt with suspicions of laundering R$4 million from Odebrecht in bribes to the institute. The task force demanded, however, that R$12 million be paid by those accused.
Of this total, R$4 million would be taken from the accused through the freezing of assets and seized money. Another R$4 million was requested from Okamotto and Lula in damages caused to Petrobras and the remainder, for moral damages to the population due to the crimes.
There was no conviction in this case. The evidence against Lula ended up being overturned by decision of the STF. Investigations continued in relation to Okamotto, but, in June 2023, Toffoli ordered the suspension of this criminal action. Palocci had made a plea bargain.
Toffoli decided to annul procedural acts in other cases decided by the former judge, but not always archiving the actions, which should be done in the first instance.
Two former presidents of construction companies who signed a statement benefited from this type of decision: Léo Pinheiro, from the former OAS (currently Metha), and Marcelo Odebrecht.
The collaboration agreements, however, were not overturned. In other words, the fines that the two committed to pay remain valid.
Most of the actions that had acts annulled are related to operations regarding suspected irregularities in the Government of Paraná, at the time of the tucano administration (2011-2018). He was not condemned in them. He is currently a federal deputy.
The operations are called Integração (on the concession of Highways), Quadro Negro (on suspected deviations in education), Rádio Patrulha (on the recovery of rural roads) and Piloto (irregularity in the duplication of PR-323).
The annulment of all acts involving Beto Richa opened the way for the other defendants to also ask for the so-called extension of the decisions.
In addition to these cases, the minister also annulled procedural acts related to businessman Raul Schmidt. He also filed a civil action for misconduct against vice-president Geraldo Alckmin (PSB).
The vast majority of the amounts requested by the Public Ministry are in actions in which Marcelo Odebrecht was one of the defendants, of around R$16 billion.
The actions deal with key characters in Lava Jato, in addition to Marcelo himself. The main complaint points to suspicions of construction by the contractor of a Petrobras administrative center in Vitória (ES) and a Braskem contract for the purchase of naphtha.
These were not the values applied in the sentence. When sentencing the accused in 2016, Moro (now senator for União Brasil-PR) ordered individual fines and the confiscation of up to R$2.7 million from an offshore account that belonged to Renato Duque (former director of Petrobras).
Moro also ordered Petrobras to pay compensation of R$108 million and US$35 million for damages resulting from the alleged crimes. He also stated that the conviction did not apply to whistleblowers Alberto Youssef, Paulo Roberto Costa and Pedro Barusco, “subject to specific compensation provided for in the collaboration agreements”. The Odebrecht agreement had not yet been signed.
Toffoli has been rapporteur, since Lewandowski’s retirement in April last year, of a process on the validity of decisions that use evidence from Odebrecht systems.
In September 2023, the minister determined that the evidence arising from Odebrecht’s leniency agreements is useless in any scope or degree of jurisdiction.
In December, Toffoli suspended payment of the R$10.3 billion fine imposed against J&F in the group’s leniency agreement. Then came the suspension of payment of fines resulting from the agreement signed between Novonor (formerly Odebrecht) and the Public Ministry.
VALUES REQUESTED BY THE PUBLIC PROSECUTION OFFICE
- R$ 16.8 billion
- US$43 million (approximately R$250 million in current values)
- 3 thousand euros (approximately R$ 18 thousand, in current values)
