For the First Time, Brazil’s Federal Supreme Court Overturns a Lava Jato Conviction

RIO DE JANEIRO, BRAZIL – The Second Panel of the Federal Supreme Court (STF) decided yesterday, August 27th, to overturn the conviction of former Petrobras and Banco do Brasil (Bank of Brazil) CEO, Aldemir Bendine, in one of the Lava Jato Operation proceedings.

The majority votes were cast by Justices Ricardo Lewandowski, Gilmar Mendes, and Cármen Lúcia. The rapporteur of the case, Edson Fachin, was a dissenting vote.

Justice Celso de Mello did not attend the session for health reasons. According to the majority opinion, Bendine is entitled to submit final briefs and be questioned after the testimony of whistleblowers in the case, which did not occur in the case being decided.

With this ruling, the case will be remanded to the Federal District Court in Curitiba for new testimony and a new decision.

Bendine had been convicted in March 2018 by then judge Sérgio Moro.

In June of this year, the Federal Appeals Court (TRF) for the 4th Region, based in Porto Alegre, had affirmed the conviction but had lowered the sentence from eleven to seven years and nine months in prison, which could be enforced soon based on the STF decision authorizing incarceration after a decision on appeal.

Appeal

The panel judged the appeal filed by Bendine’s defense counsel against an individual decision of rapporteur Justice Edson Fachin, who denied suspending the conviction so that lawyers could speak last in the lawsuit, after the introduction of the testimony made by former directors of Odebrecht to the court.

In the case, both prosecutors and defendants were given the same deadline to submit their briefs.

However, according to the majority of Second Panel justices, even though the law does not provide for it, the testimony and submission of final briefs by the accused must be made at the end of the trial, after the Odebrecht informants have finished their testimony. This finding was based on the constitutional principle of a full defense.

According to the investigations, Odebrecht had paid R$3 million (US$750,000) in bribes in order to obtain the right for a loan transaction for one of the group’s companies in 2015.

According to the lawsuit, the undue advantage would have been sought during Bendine’s term at Banco do Brasil and paid when he took over the presidency of the state-owned oil company.

Bendine was eventually arrested in one of the Lava Jato stages but saw his pre-trial detention sentence replaced by precautionary measures, such as a court appearance when summoned, a prohibition to leave the country, the surrender of his passport and a ban on contact with the other people investigated in the case.

Operation Lava Jato Task Force

The task force of Operation Lava Jato in Curitiba claimed on Tuesday, August 27th, that the
annulment of judge Sérgio Moro’s sentence sets a precedent to overthrow “virtually all” convictions handed down in the investigation, as well as the release of several prisoners.

In a statement, the task force said that the decision raises “great concern”. For prosecutors in Paraná, the STF has created a new rule, which is not provided for in the Code of Criminal Procedure (CPP) nor in the law governing plea bargaining.