By annulling the award-winning denunciation of former governor Sérgio Cabral two weeks ago, the Supreme Court left several doubts about the limits that should be respected going forward in negotiations between authorities and criminals interested in cooperating with the Justice.
Sentenced to more than 300 years in prison for corruption and other crimes, Cabral signed an award-winning collaboration agreement with the Federal Police last year, after the failure of negotiations initiated with the Federal Public Ministry, which rejected the proposal made by the former governor .
The STF established in 2018 the understanding that the law authorizes the police to enter into whistleblowing agreements even without the approval of the prosecutors, but now the majority of members of the court pointed out the rejection of Cabral’s collaboration by the Public Ministry as the main reason to cancel it. there.
The ministers who voted against the former governor said that the thesis approved three years ago is still valid and they were not reopening the discussion when examining his case. Even so, they indicated that future candidates for whistleblower will hardly be successful if they don’t get right with the prosecutors.
“The agreements with the PF will only offer legal security to the employees if the negotiations become joint and there is agreement from the Public Ministry”, says the lawyer André Callegari, who defends businessman Joesley Batista, owner of JBS, who closed an agreement with the Ministry Public in 2017.
It is possible that the issue will be defined more clearly when the STF publishes the judgment of the judgment, the document that gathers the votes of the ministers and summarizes their decisions. But it is also possible that it remains open, as it happened the other time the court dealt with the matter.
In 2018, after judging a lawsuit filed by the Attorney General’s Office against the police agreements, the Supreme Court declared that the PF had legitimacy to negotiate with candidates for whistleblower and that it would be up to the Public Ministry to comment on the agreements later, not before.
The understanding paved the way for the police to close agreements with defendants in Operation Lava Jato lawsuits who had not been successful in negotiating with prosecutors, such as former PT minister Antonio Palocci, contractor José Antunes Sobrinho, one of the owners of Engevix, and Cabral.
In exchange for the information they provided, the PF undertook to attest to the effectiveness of the cooperation by forwarding the conclusions of the inquiries to the Court, recommending that reduced sentences and other benefits provided for by law be granted to employees at the time of sentencing.
Another question left open by the STF decision is whether the pronouncement of the Public Ministry on the agreements and their benefits should always be followed by the judges, or not. Minister Edson Fachin, rapporteur of the Cabral case, ratified his agreement despite opposition from prosecutors.
For Federal Judge Fabiana Rodrigues, flexibility is necessary for the Justice to avoid abuses in the process. “The police can often act arbitrarily by ignoring the opinion of the Public Ministry, and prosecutors can refuse PF agreements out of pure corporatism,” he says.
According to the Attorney General’s Office, the evidence presented by Cabral was insufficient to justify the inquiries that the police intended to open to investigate his allegations. The former governor made accusations against politicians, judges and even a member of the Supreme Court, Minister Dias Toffoli.
Although the Public Ministry has also previously rejected the cooperation proposals of Palocci and Antunes, there were no questions after they closed their agreements with the police. Palocci’s was approved by the Federal Regional Court of the 4th Region and Antunes’s by the Supreme Court.
The opinion of the Public Prosecutor’s Office carries greater weight because it is up to it to exercise control over police activity, and only it can bring criminal actions to justice. The PF’s attributions are limited to investigations before the start of the process, and therefore it has fewer benefits to offer candidates for whistleblowers.
“The award-winning collaboration institute has been devalued,” says lawyer Tracy Reinaldet, who negotiated the Palocci agreement and those of other Lava Jato whistleblowers. “Recently introduced changes in legislation have made many negotiations unfeasible by restricting possible benefits.”
In 2019, Congress established stricter limits for the agreements, prohibiting the adoption of penalties and prison regimes other than those provided for by law, such as house arrests and others adopted by Lava Jato in the agreements that gave impetus to its actions in the first years of the operation. .
In addition, more demanding parameters were created to assess the content of collaborations by Justice. Without evidence to back up whistleblowers’ statements, they cannot be used to initiate police investigations, search, or file charges, let alone prosecute.
In the judgment in Cabral’s case, there was criticism of a clause in the agreement in which the PF gave the former governor 120 days to present new facts and evidence after the approval of the pact by the Justice and the delivery of the first information, but there was no definition about the legality of the device.
For Minister Gilmar Mendes, it is illegal because it makes it impossible to assess collaboration at the time of approval. It was within that 120-day interval that Cabral made the accusations against Toffoli, after the minister ordered the first inquiries authorized by Fachin to be filed on the basis of the accusation.
But similar clauses were adopted by other collaboration agreements unchallenged. The denunciation of the brothers Joesley and Wesley Batista, negotiated with the Attorney General’s Office in 2017, also gave a period of 120 days to present new facts and corroborating evidence.
The clause was inserted into the agreement because prosecutors were in a hurry to trigger police actions against some of the accused. With the changes introduced in 2019, the legislation started to require that all evidence of employees be presented together with their testimonies.