Members of the Attorney General’s Office (PGR) and the Central Bank (BC) reacted with discomfort and classified as “atypical” the decision of Minister Dias Toffoli, of the Federal Supreme Court (STF), to schedule a confrontation between the owner of Banco Master, Daniel Vorcaro, the former president of BRB Paulo Henrique Costa, and the director of Supervision of the Central Bank, Ailton de Aquino, for next Tuesday, in the midst of the Judiciary recess. Saints. The hearing must have as one of its main focuses the BC’s role in the financial institution’s liquidation process.
In addition to Toffoli’s decision being taken ex officio, that is, without a request from the PGR or the Federal Police — responsible for the investigations in the investigation into Banco Master — the understanding between members of the Prosecutor’s Office and the BC is that it would be necessary to advance further in the investigation before the confrontation phase. On Wednesday night, the Attorney General of the Republic himself, Paulo Gonet, had requested the suspension of the confrontation, on the grounds that the hearing would be “premature”.
STF ministers classify colleague Dias Toffoli’s decision as “unusual”, but avoid making direct criticisms of the judge’s determination — understanding that the minister is acting within his powers. For a wing of ministers, the call for a confrontation by Toffoli at this stage of the investigation is not common, although it is possible. These magistrates remember, however, that the entire case involving the Master presents its own and in some way “unprecedented” characteristics.
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DEFENSE OF AUTONOMY
Another wing of STF ministers defends Toffoli’s autonomy to act in the case “as best judge” and believes that the call for the confrontation was probably based on solid elements. For this group, the minister must already be aware of the entire process and, therefore, understood that the measure was necessary.
A confrontation serves to compare versions. The three will be heard because Vorcaro tried to sell Master to the BRB bank, a state-owned bank owned by the Federal District (DF) government, in an operation vetoed by the BC in September. Two months later, Vorcaro was arrested, and the BC decreed the liquidation of Master amid suspicions of fraudulent operations worth around R$12 billion. Until then, the case was in the first instance of Justice. At the end of November, the banker was released, and the defense asked that the investigations be passed to the STF. The measure was determined by Toffoli on December 3 after the PF found a document that cited a real estate negotiation between Vorcaro and a federal deputy.
As the STF took over the investigation less than a month ago, investigators believe that the ideal would be to collect more elements before confronting the parties involved.
According to STF interlocutors, Toffoli wants to clarify whether there was a delay in decreeing the bank’s liquidation, when the BC became aware of suspicions about Master’s operations, what measures were adopted to monitor the bank securities market and identify anyone responsible for failures in the process.
Last week, the president of the BC, Gabriel Galípolo, stated that the institution was at the disposal of the Court. Aquino, the director who will be heard, is not investigated.
In the opinion of a former director of the BC heard privately on the blog of columnist Míriam Leitão, the confrontation is “completely unreasonable”, as it exposes the director of the monetary authority, can embarrass and intimidate the technical work of the inspection and places the supervised and the inspector on an equal footing.
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In the opinion of Gustavo Sampaio, professor of Constitutional Law at the Fluminense Federal University (UFF), Toffoli’s decision has legal support, but there is controversy due to the fact that it is not yet a criminal proceeding in the strict sense, with an accepted complaint, but an ongoing investigation. At this stage, the judge would act more as responsible for supervising and controlling the legality of investigative acts rather than leading requests for the production of evidence. In any case, he sees no illegality:
— For many jurists, there is a legal basis for this action, since the magistrate is the final recipient of the evidence and can determine measures when he understands that the elements gathered are not sufficient to clarify the facts.
TRADITION AND DISTORTION
Fernando Augusto Fernandes, doctor in Political Science and criminal lawyer in STF cases, assesses that, although Toffoli’s decision follows the tradition of criminal proceedings, it can generate distortions as the minister ends up acting as the one who drives the investigation, and not just as the one who monitors whether the process is being conducted within the law.
