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Brazil
JUDGE GABRIELA HARDT WASHES HER HANDS AND HOMOLOGATES THE "FOUNDATION" OF LAVA JATO
Dallagnol's fund vilified the Constitution, tainted Petrobras and privatized public money. By Vinícius Segalla
Federal Deputy Judge Gabriela Hardt , of the 13th branch of Curitiba / PR, who approved the controversial agreement of the MPF with Petrobras, expressly stated that this "serves the public interest". The dispatch of the component type-approval came two days after the conclusion of the agreement.
- See the full homologation order .
In justifying the prevention of the 13th court's decision to approve the agreement, the magistrate affirms that the fine agreed by Petrobras with the US authorities "is of a criminal nature," with emphasis on the general prevention of crimes for which the state company was investigated country, and that the agreement with MPF "aims to implement concession granted in clause according to eminently criminal effects, even in foreign jurisdiction."
"I also note that the non-recognition of the criminal effects of the agreement between Petrobrás and MPF, by specializing the effects, could have a drastic effect on the agreement entered into by Petrobrás with the US authorities, which, of course, is not intended. "
"Great place to stay"
The judge stressed that "Petrobrás was considered the immediate victim of the corruption scheme" discovered by the Lava Jato operation and that even celebrating the agreement of the oil company with the North American organs and the commitment of the MPF "do not change this panorama ".
Gabriela Hardt argues that it is important to use half of the agreed value to set up a permanent foundation in the form of an endowment to remedy the effects of corruption and to promote an anticorruption agenda:
" This is especially important since public investments, which are notoriously scarce, for the implementation of anti-corruption measures are usually subject to budgetary constraints . "
The judge also noted the "role of MPF and Petrobras in obtaining the concession in the agreement."
" Without the intervention of MPF and Petrobrás, it would very probably not be possible to amortize 80% of the million-dollar fine agreed in the agreement with the authorities of that country, through payments and investments of collective interest in the national territory.
Due to this specific circumstance, MPF is the entity best positioned to conclude this agreement with Petrobrás . "
Concerning the agreement that the formation of the social curator committee, responsible for supervising the constitution of the fund, would be approved by the Court, Gabriela considered the provision "unnecessary".
" The Judge does not have the conditions to evaluate the reputation and the technical capacity of the possible members of the group . Then, the formation of the Committee, by delegation of the Judgment, will compete with the MPF. It will be up to the MPF to adopt the necessary measures for the formation of the Committee , only informing the Judge who are the people that will integrate it and which were the selection criteria. Once constituted, the composition and management of the foundation will not be subject to prior jurisdictional franchise . "
- Process: 5002594-35.2019.4.04.7000
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Dallagnol's fund vilified the Constitution, tainted Petrobras and privatized public money. By Vinícius Segalla
BY VINÍCIUS SEGALLA
The Lava Jato prosecutors, led by Deltan Dallagnol, are about to create a billionaire fund with funds withdrawn from Petrobras, which, in a single stroke, changes the letter of the Constitution, creates new institutional functions for the Public Prosecutor's Office in Brazil, affront the Criminal Code by giving private destination to public funds and reduces to dust the prerogative of the largest Brazilian state to fight for their rights in justice.
All duly homologated by the Brazilian Justice, by decision of the substitute federal judge Gabriela Hardt, of Curitiba.
In summary, the MPF-PR has signed agreements with US authorities and Petrobras that oblige the state-owned company to deposit in an account managed by MPF-PR the amount of R $ 2.5 billion, or 80% of the value at which she would be fined in the United States, in a kind of leniency agreement signed there by virtue of illicit that the company would have committed in that country.
The amount will be divided into two parts. Half (R $ 1.25 billion) will be used to pay Petrobras' creditors, who would have been burdened by the illegal operations in which Petrobras would have been involved.
This money will be in a judicial account under MPF-PR management. The rest will go to a private fund that will be created and managed by Lava Jet attorneys and more who they choose.
The money involved is much more than the entire budget this year directed to MPF-PR. In fact, it is more than 60% of MPF's budget in the whole of Brazil, which will be R $ 4 billion in fiscal year 2019.
The entire process that will culminate in the creation of the billionaire fund, number 5002594-35.2019.4.04.7000, current in the 13th Federal Court of Paraná, runs under the secrecy of Justice.
It was only for the whole country to have learned of the secret agreement closed by Dallagnol when all the money was already in a bank account managed by the prosecutor and who else he delegated.
So Judge Gabriela Hardt promised in the order authorizing the creation of the fund: "Once the deposit has been made, I raise the secrecy about the agreement and the homologation."
The prosecutors wanted even more secrecy. The magistrate, however, felt that, from there, they would be breaking some legal principles, and denied:
"It is not possible to maintain secrecy about the content of the agreement itself and its ratification, which would be contrary to the principle of publicity, applicable to the judicial process and to the Public Administration."
At the beginning of the week, however, leaked some of the most important documents related to the case. And what is observed in them is something of such a dimension that the country has not yet been able to take everything.
See below, what are the biggest innovations, legalities and legal impossibilities that come to light with the leakage of the secret agreements signed by Lava Jato's attorneys.
1 - The farce of Dallagnol. It was he who decided that the MPF-PR will be the fund manager
The first time Brazil heard about the agreements that perpetrated the MPF-PR with Petrobras money in the US was on September 27 of last year. The state and prosecutors informed the nation that the parties had reached an agreement that Petrobras would give the MPF the amount of R $ 2.5 billion.
The information was passed without the document that sealed agreement - protected under the cloak of judicial secrecy - was presented to the Brazilians.
What Petrobras and the prosecutors implied was that the US authorities had stated in the agreement signed by them that the entire amount should be handed over to the MPF's management.
The journalist and blogger Valdo Cruz, from the newspaper Valor Econômico and G1 Portal, was the first to break the news . He wrote: "By understanding (the agreement), about R $ 2.7 billion will be paid to the Brazilian Public Prosecutor's Office."
The next day, the Migalhas portal, specializing in legal news, approached the matter , criticizing this requirement, which would appear in the agreement with the Americans:
"What is not understood is that, according to the agreement, the penalty is allocated to the MPF.That's right, it says in the document that 682 million dollars, something like $ 2.7 billion, go to the Lava Jet for them to apply in 'social and educational projects aimed at promoting transparency, citizenship and compliance in the public sector' . It is said that the American authorities did not accept the money going to the Brazilian state, because he would be the majority partner of Petrobras, so that it would not be a 'penalty'. "
Behold, this week, however, the documents were leaked. And what has been discovered is that this is just not true.
No, the United States never signed any agreement that Petrobras would hand over the billion dollar fine to the management of Dallagnol and its attorneys. See the section of the agreement referring to this point below:
"The Fraud Section and the Office will credit 80% of the criminal penalty against the amount the Company pays to Brazilian authorities, pursuant to their resolution."
In free translation, the agreement requires Petrobras to pay 80% of the amount of the fine due (R $ 2.5 billion) to Brazilian authorities, in the manner that is resolved.
In another section:
"The Fraud Section and the Office agree to credit the remaining amount of the Total Criminal Penalty against the Company to Brazil, up to 80 percent of the Total Criminal Penalty, equal to $ 682,560,000."
That is, the company (Petrobras) pays to Brazil, and not MPF, the amount owed.
So, without a word: Petrobras and MPF lied. No, it was not a condition imposed by the US that they, Lava Jet attorneys, would be in charge of managing the money.
Who would then have created an obligation for Petrobras' billionaire fine to go under the management of Lava Jato? Answer: Lava Jet's own prosecutors!
They were the ones who pointed out in a later agreement that also leaked this week, this time signed exclusively between Petrobras and MPF-PR, that money will stop in the account and fund to be managed by Deltan Dallagnol and his team:
2.2.'1. The deposit will be made within the period of 30 days counted from the homologation date, in an account linked to the respective Federal Court.
2.4.2. The FEDERAL PUBLIC MINISTRY will be responsible for finding ways to set up a private foundation (including the drafting of its statutory documentation), based in Curitiba / PR, and may sing with the assistance of respected civil society (s) , of the public authority or of the Public Prosecution Service in order to ensure maximum effectiveness of the purposes of the agreement.
2 - The new (and unconstitutional) function of the MPF and the private management of public money
Under the Dallagnol Accords, as is now known, the Federal Public Prosecutor's Office in Paraná, together with the State Public Prosecutor's Office of Paraná, will manage the account for payments of creditors and a private fund created by them that will invest the public money in shares that judged convenient.
Such actions should seek to reduce corruption in Brazil through the "promotion of citizenship, formation of leaderships and improvement of political practices". That is what is contained in the agreement.
Who signed up for MPF? "The Regional Attorneys of the Republic and Attorneys General of the Republic, with designation to officiate in Operation Lava Jet." These are: Deltan Dallagnol, Antonio Carlos Welter, Isabel Cristina Groba Vieira, Januário Paludo, Orlando Martello Junior, Diogo Castor de Mattos, Roberson Henrique Pozzobon, Júlio Carlos Motta Noronha, Jerusa Burmann Viecili, Paulo Roberto Galvão, Athayde Ribeiro Costa and Laura Tessler.
That is to say: the prosecutors of Lava Jato, without any authorization from the Attorney General's Office or from any higher instance of Brazilian Justice, have resolved to amend the Brazilian Constitution to create new functions for themselves and the organs they represent. And they go far, far beyond their exclusive constitutional prerogatives (article 129 of the Constitution), prosecutors and public prosecutors. Now they will have to divide their time between what the law says and its new prerogative: that of managers of billionaire private fund created with public resources.
Thus, the agreement with Petrobras and the guidelines for the formatting of the fund (which is not yet established) has taken place on the ground free of any legislation, since the mere hypothesis of its creation finds no legal support, no regulations that envisage it . In this normative vacuum, the legal creativity of Dallagnol and his partners ran loose, which made a series of inventions appear in the agreement without any legal reason or possibility to exist. It is worth remembering: it is up to a public servant to do what the law says, nothing more. Everything that is not foreseen in law, it is forbidden to a public servant to create by mere voluntarism. So:
- It is stated that the headquarters of the fund will be in Curitiba. Because? Based on which standard?
- It is said that prosecutors will select the members of the board they will manage and define where and how the billionaire resources will be applied. Because? Under what prediction? The overflow of the legal functions of the Office of the Prosecutor exceeds the limit of understanding.
- It is stated that the MPF-PR and the MP-PR will have a guaranteed seat on the board of directors of the fund. Because? Where is it written that these bodies should assume such functions, to have guaranteed their participation in the management of the billionaire fund?
- It is understood that the fund will be private in nature, without the intervention of Petrobras or any Brazilian public authority, other than the Public Prosecutor's Office. There is nothing in Brazil's legal budget to authorize or regulate the management of public money through a private entity without having submitted to the procedures established for competitions, partnerships and agreements with the State.
3 - The vilification of Petrobras' right to go to court and the mandatory suspicion of MPF
Under the agreement, Petrobras shall keep the MPF-PR updated on the progress of all judicial and arbitration proceedings in which it is involved. In addition, the company can never oppose the admission or prosecution actions in such cases.
That is to say, the oil company is being forced to renounce the stony right to appeal to Justice when it finds that its rights are being harmed. The term "leonine contract" can not cover an illegality of this size.
Moreover, the MPF informs that it will act in the company's processes and arbitrations whenever it wishes, even if there is no indication of a misuse of public resources, once again surpassing its constitutional designs.
Even more: the amount of R $ 1.25 billion that will be contingent on a remunerated account (that is, that yields interest) controlled by the prosecutors will serve precisely to pay the creditors of the company that will arise when and if it comes to be condemned in these processes.
But, also provides for the agreement that, after two years of deposit of the amounts in the judicial account, all interest generated by the remuneration of the account will be reverted to the fund of the MPF-PR. And, after five years, if there is still any value remaining in this account, it will also be reverted to the Dallagnol fund.
Is it clear what that means?
From now on, the Federal Public Ministry will always be in suspicion when acting in the processes involving Petrobras. That's because the smaller the amounts to be paid by the company in these processes, the more money the MPF-PR fund will receive! That is, the MPF-PR became a legal and economic partner of Petrobras, and no longer a prosecutor of the Law!
4 - The disrespect to the agreement signed with the authorities of the United States and the risk of losing all the money
As noted, the MPF-PR agreement with Petrobras returns to the company half of the amount of the fine that it is paying. This is because such amount will be used to pay the company's own legal debt.
This turns out to be a crystal-clear violation of the agreement made with the US authorities, jeopardizing the entire operation and the resources it is promised to repatriate.
It has already been shown above that the agreement with the foreign authorities foresees that the total of R $ 2.5 billion be delivered to Brazil. In the agreement with the United States, Petrobras figures as a defendant, it is receiving the punishment of disbursing this amount as a fine for its ill-done. Thus, you could never get a part of this money to pay your legal debt!
Thus, the risk in which Dallagnol puts the total of these resources is evident when creating this agreement with the oil company. It is also included in the contract with the Americans:
"In the event that the Company does not pay to Brazil any part of the $ 682,560,000 in the timeframe specified in the agreement between Brazilian authorities and the Company, the Company shall be required to pay that amount to the United States Treasury."
Translating freely, if Petrobras does not pay the total of the amount predicted "to Brazil", will be required to pay the amount to the United States Treasury.
Just wait and see.
5 - The pen of Judge Gabriela Hardt: "They can not do this, but they deserve it!"
The federal deputy judge Gabriela Hardt, of the 13th Federal Court of Curitiba, did not allow herself to be beaten by any of the illegalities and inventions of Deltan Dallagnol and her team: it approved the MPF-PR agreement with Petrobras, the allocation of public money for the management of prosecutors and the creation of the private fund.
As it could not fail to be, it did not anchor its decision in any legal prediction, since legal predictions do not exist for the legal monstrengo created by Lava Jato.
How, then, did the justification justify her decision? As follows:
"It is important to note the role played by MPF and Petrobrás in obtaining the concession in this agreement with the authorities of the United States. Without MPF and Petrobras intervention, it would very probably not be possible to amortize 80% of the million-dollar fine agreed in the agreement with the authorities of that country, through payments and investments of collective interest in the national territory. " (...)
"Because of this concrete circumstance, MPF is the entity best positioned to conclude this agreement with Petrobrás (sic). In those circumstances, I believe that the agreement merits approval. In view of the above, I endorse the Agreement on Assumption of Commitments, signed between MPF and Petróleo Brasileiro S / A - Petrobras. "
That is, in the absence of legal provision to ratify the agreement and the creation of such fund, the judge justified its approval saying that the prosecutors of Lava Jato deserve to stay with the task.
In other words, what the magistrate said was: "Lava Jet prosecutors did their job so well in the US, they brought the money back to Brazil, that the agreement deserves to be ratified."
But what about the Law? The law? Well, the law.
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https://www.diariodocentrodomundo.com.br/fundo-de-dallagnol-vilipendia-a-constituicao-macula-a-petrobras-e-privatiza-dinheiro-publico-por-vinicius-segalla/
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