MercoPress. South Atlantic News Agency

Brazil: STF judge suspends heavy fine on Odebrecht

Those being investigated may have been led to make decisions contrary to their interests and for the benefit of the prosecution, Toffoli argued

Brazilian Supreme Federal Court (STF) Justice José António Dias Toffoli ordered a R$ 8.5 billion (about US$ 1.7 billion) corruption fine on Odebrecht suspended after raising doubts on the circumstances that led the company to accept such a collaboration agreement with the Prosecutor Office.

There is at least “reasonable doubt about the requirement of voluntariness” of the company in signing the agreement, Toffoli said in his rationale and insisted it was necessary to determine “whether illegalities were committed.” Dias Toffoli also authorized Novonor to renegotiate its agreement with the Prosecution.

The magistrate cited the questionable exchange of text messages between then-Judge Sergio Moro in the Lava Jato case and Prosecutor Deltan Dallagnol. Dias Toffoli's decision was based on the findings of the 2019 Operation Spoofing in which the Federal Police are investigating the actions of hackers who leaked conversations such as the ones involving Moro and prosecutors.

“There would have been a collusion between the trial judge and the prosecution body for the elaboration of a legal-procedural scenario that led the investigated [company] to the adoption of measures that best suited those bodies and not the defense,” Dias Toffoli went on as he issued his ruling following a request from the company, which changed its name to Novonor after the scandal.

According to the new evidence weighed by Dias Toffoli, the leniency agreement seems to have been made outside official channels. At the time, the National Association of Prosecutors claimed it was the result of valid negotiations ratified by the STF.

Back in September, Toffoli had already annulled all the evidence obtained through collaboration agreements with the construction company. That decision stemmed from a request filed by the legal team of President Luiz Inácio Lula da Silva, who spent 580 days in prison.

Dias Toffoli also annulled all the evidence against former Peruvian president Ollanta Humala and former Ecuadorian vice-president Jorge Glass for irregularities related to Lava Jato, considering that they were “contaminated.”

The Odebrecht leniency agreement was signed in December 2016. It provided for the payment of R$8.5 billion to the federal government, states, municipalities, and authorities in the United States and Switzerland, over a period of 23 years. Seventy-seven executives and former executives of the company confessed to corruption, among other crimes, and signed plea bargains with the Federal Prosecutor's Office. Among them are the company's owners, Emílio and Marcelo Odebrecht. When they confessed, they named almost 200 politicians involved in the bribery scheme.

The whistleblowers presented spreadsheets, emails, records of meetings, and other evidence of the so-called structured operations department, a kind of bank for the bribes paid by the company. The system was called Drousys. Each payment required a different password and each recipient was given a nickname. The written content was encrypted to prevent possible leaks. A lower court has already ruled that evidence from the bribery system can no longer be used.

Justice Dias Toffoli's individual decision will only go to the full bench or to the Second Chamber of the Supreme Court if it is challenged by the Attorney General's Office since it is open to appeal.