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‘The Plea Agreement Is a Surrender Agreement’, Says Coordinator of the Odebrecht Plea Agreement

‘The Plea Agreement Is a Surrender Agreement’, Says Coordinator of the Odebrecht Plea Agreement

In a March 1, 2017 deposition before the Brazilian Superior Electoral Court, former CEO Marcelo Odebrecht reportedly testified that his company donated R$ 150 million ($48 million) under-the-table, or "Caixa 2,"  to the reelection campaign of President Dilma Rousseff. He alleged, according to reports, that Rousseff was aware of the donation amounts. Odebrecht further stated that he had met with current President Michel Temer in 2014 (who was then vice president under Rousseff) but denied that Temer presented a request for support  or discussed actual numbers. Former President Rousseff categorically denied any wrongdoing in responding to the allegations on March 2. Temer had previously acknowledged meeting Marcelo Odebrecht and reiterated that his actions were entirely within the law.    

The Superior Electoral Court (TSE) will hear oral testimony from four more Odebrecht executives in the coming days as it investigates whether the 2014 Rousseff-Temer campaign accepted or solicited illicit donations. If the Superior Electoral Court finds compelling evidence, it could recommend voiding the results of the 2014 presidential elections, resulting in the removal of Temer from office and the appointment of a new president by Congress until the 2018 elections. A final decision on the case is not expected for months and may be still pending by the time Temer's term expires in December of next year. To read more, click here.

The following is a translation of an interview given to Brazilian daily Estado de S. Paulo.

Attorney Theodomiro Dias Neto, who coordinated Odebrecht's long and exhaustive negotiation process with the Lava Jato Task Force, classifies the historic group plea bargain as a “surrender agreement.” [1]

For ten months, from February to December 2016, Theo Dias, as he is known, faced tense negotiations that culminated in the signing of Lava Jato's largest plea bargain pact—involving 77 executives and former employees of the contractor [Odebrecht].

In an interview with Estado, he says the operation revealed the “promiscuous, parasitic relationship between public and private actors,” but that the positive is the potential for “a new business environment in Brazil.”

ESTADÃO: How does Lava Jato influence criminal law?

THEO DIAS: We live in a moment of ambiguity in Brazil. I personally feel that way. On the one hand, we feel a deep dismay, a deep skepticism, pessimism, upon realizing scope and penetration of corruption in Brazil. We all knew that Brazil was a country with a systemic problem of corruption, but perhaps none of us clearly understood the levels it had reached. This causes perplexity, concern, sadness, disappointment with certain public figures we believed in, for whom we voted. That's half the glass. The other half is more optimistic, that Lava Jato is the product of institutional progress. Lava Jato is not and should not be synonymous with Sérgio Moro. What will be the positive balance of Lava Jato when we look at it about ten years from now? I want to believe that it can be a new business environment in Brazil, a new form of relationship between the public and private sectors. And this is done through reforms in the field of criminal law and also through reforms outside criminal law.

ESTADÃO: Such as what?

THEO DIAS: Criminal law reforms are needed to better regulate the system with the public, the relationship between the public and private sectors. It is necessary to create mechanisms to improve the system of public procurement, of public contracting.

ESTADÃO: What is your assessment of the “Ten Reform Measures,” the package brought to Congress by the Federal Public Prosecutor’s office?

THEO DIAS: I have deep respect for the federal prosecutors and the federal police who are part of the task force. They are enthusiastic young professionals who work 16 hours a day on the investigation. This, by itself, is already a departure from typical Brazilian public service. A level of dedication like that is not common. I have a number of disagreements of a legal nature related to some of the content of the criminal charges and the way in which they are filed, and to the excessive length of imprisonment without penalty. I think, in some cases, they are unnecessarily long. I understand that these ten reforms—I agree with some of them—are intended to facilitate, to ensure greater transparency in the relationship with the public authority. I think it is possible, yes, to think of legislative reforms in the appeals system so that it is more agile, without resulting in a reduction of procedural guarantees.

ESTADÃO: Is there a crusade among prosecutors and judges against garantismo [support for legal procedural guarantees] in Brazil?

THEO DIAS: We should not create [artificial] opposition between efficiency in the application of criminal law and the system of procedural guarantees necessary to make the process fair. Criminal guarantees are part of the reality in any country that claims to be civilized. You measure the strength of the rule of law by criminal procedural guarantees. In the case of Lava Jato, we are seeing that this operation is happening within the current legal framework of this country. Independent of major legal modifications, the operation is taking place with the guarantees that exist, provided by the Constitution—which in some cases may even be questioned by the defense—but the system is there to assess whether they are being fulfilled. What is making a difference in Operation Lava Jato is the quality of the criminal investigation. This has allowed the enforcement of criminal law to be effective. It is crucial that the efficiency of criminal law is not just “efficiency at any cost.” Efficiency at any cost is the Gestapo.

ESTADÃO: A year ago, a hundred lawyers and legal experts signed a manifesto calling Lava Jato a “neo-inquisition”...

THEO DIAS: I deviate from many of the legal interpretations that have been given in the context of Operation Lava Jato, for example, the expansive interpretation of the money laundering crime. It seems overly comprehensive. It is not consistent with the criminal definition of money laundering. The way money laundering has been interpreted in many of the complaints and decisions does not seem appropriate. I also understand that in many arrests there was a broadening of the interpretation, more comprehensive than it had been—but I do not believe it is an inquisitive system and I also do not like comparisons with the military regime, which some people make. I think that, in fact, the situation in Brazil today, the degree and size of Operation Lava Jato have led judges, including those of a liberal tradition, such as Justice Celso de Mello (of the Brazilian Supreme Court), to adopt the most rigid positions regarding procedural arrest, with the understanding that the risks to the judicial process, in these cases, justify an exception to temporary arrest.

ESTADÃO: How were the negotiations leading up to the Odebrecht plea bargain?

THEO DIAS: I am not going to go into the Odebrecht case. I can say, in a generic way, that any negotiation of a plea bargain agreement involving people or a company has as its first challenge the creation of an environment [conducive to] negotiation. This process may be more or less complex depending on the number of people involved; depending on the current climate, the moment you are in; depending on the interest of the prosecution in reaching an agreement; depending on the amount of information that the prosecutor possesses. Building this negotiating environment requires building credibility, the realization that you are not just playing a game for appearances, that you really want the agreement, that you are willing to reveal facts, that you are willing to turn a page in your life. This is the first great challenge. A collaborative plea bargain agreement is not an agreement of people, of parties in similar positions. There is complete power asymmetry in this relationship. The collaborative plea agreement is a surrender agreement, in which one party is surrendering to the other. What is important, what is fundamental and a challenge for making an agreement is that in the case of a company no one makes a deal to die—they make a deal to survive.

ESTADÃO: What was the role of Emílio Odebrecht in the process of the plea agreement?

THEO DIAS: What I can say is that Emílio Odebrecht has been the great driving force behind change within the company. He is the person who decided to turn that page and therefore was the initiator of this whole process. Without Emílio Odebrecht, this would not have happened.

ESTADÃO: The Lava Jato [Operation] has been marked by the great number of plea agreements. There are those who consider it an exaggeration and that arrests occur in order to force collaboration...

THEO DIAS: I believe in the plea bargain agreement process. It is an important instrument and should be available to the state as an instrument for combating and preventing illicit activities. One can even prevent other illicit acts from occurring as a result. The risk is that the state’s excessive reliance on plea bargains could transform the penal system into a lazy system. The confession returns to having the value it had during our more inquisitorial period as the queen of evidence. The state cannot be dependent on plea bargains, but I do not think that this is necessarily happening.

ESTADÃO: Has the Supreme Court decision to authorize the arrest in the appeals stage had an influence?

THEO DIAS: Besides that decision, what is influencing Lava Jato is the speed of decisions. I disagree with that decision because my understanding is that within the current penal code reality there is no possible interpretation that authorizes arrest after the first appeals court ruling. For this to happen, there must be a change of law.

ESTADÃO: What did Lava Jato reveal? Unreported political donations (caixa dois) or bribes?

THEO DIAS: There is a little bit of everything. It is a discussion that will follow. Lava Jato brought examples of official donations that were acts of corruption and also unofficial donations (in the case of the so-called caixa dois) that were not necessarily linked to a specific transaction, [they were not] quid pro quo. We will have an important dogmatic challenge to differentiate with greater technical precision the crime of unreported electoral donations and the crime of corruption.

To read the interview in the original Portuguese, click here.


[1]Editor’s Note: In the Brazilian judicial system, defendants who have been charged with a crime can agree to cooperate with the government in what is a called a “delação premiada,” a type of plea agreement where the defendant turns over evidence against his or her colleagues in exchange for no charges, reduced charges, or leniency in the sentencing process.