Lava Jato experienced another 2024 with another new wave of defeats in , which included the overturning of convictions and actions by the task force on the grounds of irregularities in the conduct of investigations and processes.
Ministers of the Supreme Court have made monocratic decisions, sometimes endorsed by their colleagues, which archive actions and annul evidence arising from investigations connected to the operation that began in Curitiba in 2014.
The measures reflect an ongoing movement in the court to reverse procedures of the operation that investigated a money laundering and embezzlement scheme involving Petrobras, putting construction companies and the highest level of Brazilian politics in check.
One of the main setbacks for the operation in recent times was the minister’s decision, in response to the defense’s request to extend to the PT member the decision in which the STF considered the former judge, now a senator, () suspect to judge the president ().
Former minister of the Civil House in the first Lula government, Dirceu had been sentenced in two cases to sentences totaling 34 years in prison. Gilmar’s decision made him regain his political rights, as he is no longer covered by the Clean Record Law.
The STF minister maintained that messages exchanged between Moro and Lava Jato prosecutors show that the “same lack of exemption” in relation to Lula also prevented Dirceu from “having the right to a fair and impartial trial”.
The dialogues were also mentioned by the minister in decisions that annulled acts against businessmen, former president of OAS, and former president of Odebrecht. The first had been sentenced to more than 30 years in prison, and the second, 19. Both were whistleblowers about the operation, with Pinheiro being one of Lula’s main accusers in the cases against the PT member.
This month, the minister also annulled all acts of the operation and of former judge Moro against the lobbyist, who was convicted together with the former president of the Chamber of Deputies Eduardo Cunha in a case related to secret accounts in Switzerland.
“We do this with great sadness, because it is the State that was wrong, the investigating State and the accusing State”, in October. “It’s regrettable when we have to declare an act of State illegal, but the mistake was made at the origin.”
Others who benefited from STF decisions throughout 2024 were marketer João Santana and businessman Raul Schmidt, accused of being a bribery operator.
According to Eloisa Machado, professor at FGV Direito SP, there is a divergence among Supreme Court ministers regarding the effects of Moro’s suspicion, judged in 2021. In the class, Toffoli, Gilmar and have recognized broader effects; and, to a lesser extent.
There is, however, a concentration of requests in the hands of Toffoli, who since the retirement of the STF minister, in April 2023, has been rapporteur for a process on the validity of decisions that used evidence from an Odebrecht electronic system.
Last year, Toffoli called Lula’s arrest “one of the biggest miscarriages of justice in history” and annulled all evidence obtained from Odebrecht’s leniency agreement, determining that it cannot be used in any scope or degree of justice.
In January, the minister reached an understanding and suspended payment of the billion-dollar fine that the contractor had been forced to pay when it agreed to cooperate with the courts in 2016.
Luisa Ferreira, professor of criminal law and criminal procedure at FGV Direito SP, says she is concerned about the volatility and change in the Supreme Court’s understanding of the operation, “it seems according to who is being judged, who is judging” .
The criminal lawyer says that recent Lava Jato issues in the Supreme Court sound more problematic due to a view, especially by Minister Dias Toffoli, that the construction companies would have been embarrassed when signing the collaboration agreements.
and said that they were under undue pressure in entering into the agreements, so that they were invalid.
“What seems strange to me about this most recent performance by Minister Dias Toffoli are these strokes that seem very broad to me, these statements that seem a little exaggerated to me”, says professor Luisa Ferreira.
“When this turns into a crusade, it seems to me that it is going beyond the legal, as if it were a war: Supremo versus Lava Jato, Dias Toffoli versus prosecutors. This is not good for the institutions and it is not the law. The law does not It works all or nothing.”
Eloisa Machado says that, in other cases, the court has endorsed the evidence and convictions, such as in the case of the crimes of passive corruption and money laundering.
In her view, cases that were processed in São Paulo or Brasília had a regular course, generating convictions and acquittals. “Looking at the whole, it is clear that what was built at Lava Jato in a robust manner and with respect for due legal process, has resisted.”
The professor also draws attention to a conciliation between public entities and construction companies in the STF regarding the leniency agreements signed in Lava Jato. The expectation is that there will be a friendly solution, which must be approved by the court plenary.
Professor of criminal law at USP, Mauricio Stegemann Dieter says that what is at stake is the procedural legacy of Lava Jato. For him, there is a problem of how to deal with it, take off the rings without losing the fingers. “This past has not been resolved well, and this is an excruciating process.”
Dieter, a critic of the operation since the beginning, says this is an inexorable process that has not yet ended. The professor advocates that the Supreme Court liquidate Lava Jato once and for all — and predicts that this will actually happen next year.
Luisa Ferreira, from FGV Direito SP, makes a similar prediction: “I think we will only have more extensions and more cancellations ahead (…). If Lava Jato is in the ICU now, my prediction is that it will be buried in 2025.”
