The reaction to the list reveals differences between Zavascki and Barbosa.

by Hylda Cavalcanti, from Current Brazil Network 

Brasilia – In addition to the general public outcry surrounding the 34 parliamentarians who will be investigated for their involvement in the Petrobras scandal, a major question raised by politicians and legal professionals in recent days concerns the behavior of the Supreme Federal Court (STF) in relation to the case and the difference in posture that is already beginning to be observed in comparison with the trial of Criminal Action 470, the so-called mensalão scandal.

This is because, by lifting the confidentiality of the proceedings and making public all documents related to the investigation request made by the Attorney General's Office (PGR) regarding the scheme of bribery payments by companies that have contracts with Petrobras, Minister Teori Zavascki, rapporteur of the cases, adopted a tone of prudence and respect for the Court's jurisprudence on at least two occasions.

In one of them, the magistrate emphasized that the opening of an investigation does not represent a "premature judgment on the authorship and materiality of the crime," especially when the evidence is based on testimonies gathered through plea bargaining. He stressed that "such testimonies do not, in themselves, constitute means of proof, because, according to express normative provision, no conviction will be handed down based solely on the statements of a cooperating agent."

Elsewhere in the document, Zavascki stated that he granted six requests to dismiss disciplinary proceedings that were being processed under judicial secrecy, with the caveat that "according to the jurisprudence of the Supreme Court, the court cannot refuse a dismissal request presented by the Attorney General of the Republic, Rodrigo Janot, even if it may eventually consider the reasons invoked to be unfounded."

In both situations, Zavascki demonstrated a very different way of working from that adopted by the rapporteur of AP 470, former minister Joaquim Barbosa. First, by highlighting respect for the jurisprudence of the Supreme Federal Court (STF), which Barbosa disregarded throughout the consideration of the Mensalão case. On the other hand, he addressed criticisms made by various lawyers and magistrates who contest the legality of testimonies obtained through plea bargains.

Minister who supports guarantees

Zavascki's stance was also praised by some lawyers who have already met with him to discuss other cases pending before the Supreme Court. Two of them, working in large law firms, made similar statements in recent days about the minister. One of them, Pierpaolo Bottini, said that the magistrate has always been receptive to conversations with lawyers, but such meetings are always short and characterized by the fact that he "listens more than he speaks."

Lawyer Frederico Crissiúma de Figueiredo stated that "despite guaranteeing the right to a full defense, the right to challenge evidence, and being very attentive to illegally obtained evidence in the proceedings, the judge tends to be harsh in the cases he handles."

Considered a guarantor of individual rights, Zavascki has a very different profile from former minister Joaquim Barbosa. He usually meets with lawyers, schedules requested hearings easily, demonstrates knowledge of the cases to be discussed, and usually listens attentively to the arguments presented. But he never comments on the case. He has a habit of responding, when questioned about the matter: "If being a guarantor of individual rights means ensuring what is in the Constitution, then I am a guarantor of individual rights and I think everyone should be."

He has always been in favor of seeking solutions that allow the judicial system to resolve its problems with a large volume of cases, and he is considered one of those responsible for the change in the Supreme Federal Court last year, which led to the judgment of criminal matters being carried out by the sessions of the Second Chamber of the court, in order to speed up the trial process.

No TV cameras

With the change, if the system remains the same until the trial of the Petrobras case, unless exceptions are granted, everything should take place away from TV cameras – since the transmission is only done during the plenary sessions of the court, when the entire panel votes.

Zavascki, who judged an average of nearly 7 cases last year, also has a different stance on criticisms that the Supreme Court is a political tribunal or interprets certain situations in a political way. “What does it mean to be political? I don't know. The Supreme Court decides many political issues, but it always issues a judgment of legality, which is very different,” he told the website Consultor Jurídico.

Specializing in Civil Procedural Law and Tax Law, the minister arrived at the Supreme Federal Court (STF) in 2012, having left the Superior Court of Justice (STJ), where he had been since 2003. In relation to AP 470, he judged the part concerning the motions for clarification and the motions for reconsideration.

Last year, at the beginning of his role as rapporteur for Lava Jato, he granted an injunction to revoke the arrest of Renato Duque, former director of services at Petrobras, arguing that, in addition to there being no risk of the investigated parties fleeing, he understood that the involvement of people with privileged jurisdiction in the process – such as André Vargas (independent-PR) and Luiz Argôlo (SD-BA) – meant that the first instance of the Justice system did not have the power to legislate.