The decision by Minister Dias Toffoli of the STF (Supreme Federal Court) to call a confrontation before investigators and witnesses make individual statements in the Banco Master case is described as “inopportune” and “strange” by criminal lawyers.
Toffoli has scheduled the meeting between Daniel Vorcaro (Master Bank), Paulo Henrique Costa (ex-BRB) and Ailton de Aquino (Central Bank) for December 30, during the judicial recess.
“As the people involved have not yet been heard individually, there are no differences. The confrontation at this moment is inappropriate,” says Marcelo Cavali, doctor in criminal law and former investigating judge in Luís Roberto Barroso’s office at the STF.
Toffoli says there are contradictions in the investigative files. The minister would have indicated to the members of his cabinet that he intends to clarify the moment when the BC became aware of the suspicions concerning the operations of Master, the surveillance measures of the banking securities market and to determine those responsible for the failures of this process.
The Code of Criminal Procedure (CPP) conditions the confrontation on the existence of discrepancies in the “statements made”. The Attorney General of the Republic, Paulo Gonet, affirms that it would be premature to proceed with the confrontation now and that there are no contradictions yet to be clarified.
As the investigation is secret, it is impossible to know what the contradictions are, explains criminal lawyer and professor at FAAP (Fundação Armando Álvares Penteado) Alberto Toron.
For Toron, this anticipation of the confrontation “provokes strangeness”. The adversarial system provided for in the 2019 anti-crime package delegates responsibility for producing evidence to the public prosecutor.
The request to suspend the confrontation presented by the PGR (Attorney General’s Office) “imposed another contradiction” on Toffoli’s order, says Toron.
In the summons, the Minister of the STF mentioned article 156, which allows the judge to order, ex officio, the early production of evidence even before the start of the criminal action.
The lawyers heard by the Leafargue, however, that the most recent rule that changed the Brazilian procedural and investigative model six years ago should prevail.
According to Cavali, Toffoli’s initiative opens the possibility for the parties to request the annulment of the evidence produced at the hearing. “In theory, any evidence produced at the initiative of the official judge, during the investigation phase, can be considered void, because it would undermine the impartiality which must guide the magistrate who supervises the investigation.”
Jaime Fusco, a partner at Almeida & Fusco, says the order “demeans the STF jurisprudence itself.” He recalls that the court limited the power of initiative of the magistrate in the case of the guarantee judge to guarantee the accusatory structure of the Brazilian criminal process.
The STF consolidated, in August 2023, that the Brazilian system is strictly adversarial. This means that the judge must be a “guarantoring spectator” and not a “protagonist of the evidence”, specifies the judgment.
“At the time, the court consolidated the idea that the magistrate must only control the correct application of the law to the parties,” Fusco says.
This argument does not fit into the investigation into fake news for reasons of temporality, since Minister Alexandre de Moraes opened the investigation automatically in 2019 – that is to say before the current STF agreement.
Another moot point was the choice of the December 30 date for the hearing. Traditionally, measures taken during judicial recess are limited to cases of extreme urgency, such as requests for liberty (habeas corpus) or precautionary measures to avoid the imminent loss of evidence.
“The order for early production of evidence is limited to what is considered urgent – which does not appear to be the case,” Cavali said. For him, the opposition of the PGR reinforces the fact that there is no emergency.
Article 229 of the CPP authorizes the confrontation between accused and witnesses, as ordered by Toffoli. An example of this is the confrontation during the trial of the January 8 coup attempt between defendant Anderson Torres and General Marco Antônio Freire Gomes, who was a witness.
“Vorcaro is still under investigation, he hasn’t been charged yet,” says Toron.
The minister, according to a person who discussed this call with him, intends to take advantage of the confrontation to clarify when the suspicions of fraud were discovered, who knew about them and what measures were taken or not.
One of the objectives of the process will be to assess the performance of the BRB management in light of the signs of fraud that have been raised throughout the negotiations, including alerts issued by the Central Bank itself.
Another front will consist of identifying the measures taken by the BC to monitor the bank securities market and identify those responsible for bankruptcies. No member of the Central Bank is under investigation in this matter.
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