CNMP punishes former coordinator of Lava Jato in Rio with a 30-day suspension.

By Tiago Angelo, Conjur - Members of the Federal Public Prosecutor's Office cannot disclose information that is under judicial secrecy as institutional news. Based on this understanding, the National Council of the Public Prosecutor's Office applied a 30-day suspension penalty on Monday (12/19) to the former coordinator of the "Lava Jato" operation in Rio de Janeiro, Eduardo El Hage.

With this decision, the prosecutor will be barred for five years from participating in task forces, special groups, or even holding positions of trust within the Federal Public Prosecutor's Office. 

The court examined whether 11 members of the defunct "Lava Jato" task force in Rio de Janeiro committed misconduct by releasing a press release containing confidential information that was part of a complaint filed against former senators Romero Jucá and Edison Lobão. 

According to the majority of the panel, there was disclosure of information under judicial secrecy. The dissenting vote of council member Daniel Carnio prevailed. He was followed by Rogério Magnus, Rodrigo Badaró, Jayme Oliveira, Oswaldo D'Albuquerque, Otavio Luiz Rodrigues Jr., Rinaldo Reis Lima, and Engels Augusto Muniz. 

According to Carnio, the Federal Public Prosecutor's Office of Rio de Janeiro released the news without a court decision lifting the secrecy of proceedings that were being conducted in secret. He also criticized the actions of the prosecutors. He believes that "Lava Jato" published accusations as a way to manipulate public opinion and pressure the judiciary against targets of the operation. 

"From what I could gather, this violation is part of a context that makes the situation more serious, because it shows a pattern in other task forces: the disclosure of the complaint before any judicial decision as a way to manipulate public opinion and pressure the Judiciary. This violation is part of this context. This does affect the dignity of the Public Prosecutor's Office and the Judiciary," he said. 

According to the advisor, practices like this are punishable by dismissal. However, the case also involved a prosecutor from Sergipe, and the Organic Law of the Public Prosecutor's Office of that state stipulated a maximum sanction of suspension.

"Due to the concrete application of the principle of equality, I believe we should eliminate the penalty of dismissal and limit everyone to the lesser penalty." With this, the penalty of dismissal was converted to suspension. 

In addition to the decision involving El Hage, the CNMP (National Council of the Public Prosecutor's Office) applied a censure penalty against prosecutor Gabriela de Goes Anderson Maciel Tavares Câmara, responsible for the negotiations that led to the creation and publication on the MPF (Federal Public Prosecutor's Office) website in Rio of the news item containing confidential information.

The other prosecutors and the public prosecutor from Sergipe were acquitted. The CNMP (National Council of Public Prosecutors) concluded that there was no evidence that they participated in the dissemination of the news.

“There was a breach of confidentiality. The investigations were being conducted under secrecy, and the complaint originated within the scope of these investigations. It is not up to the Public Prosecutor's Office to decide whether or not to lift the confidentiality. This complaint was disclosed before there was any judicial decision [lifting the confidentiality],” Carnio continued. 

Rapporteur's vote

According to the case's rapporteur, Ângelo Fabiano, there was no disclosure of classified information. The council member understood that the news published on the website of the Public Prosecutor's Office in Rio de Janeiro was limited to narrating the complaint, while only the investigations were confidential. 

He, however, voted to apply the censure penalty against El Hage and Gabriela because the content of the news story made value judgments against the accused and led the reader to believe that the politicians were guilty even before there was any conviction. 

“The incisive terms used contribute to the average reader attributing to the accused a degree of guilt incompatible with the stage of the investigations. Furthermore, it is clear that the timing chosen for the disclosure caused all the confusion, even generating the understanding that a confidential matter was being revealed, which could have been avoided without any prejudice to the public interest if the defendants had waited to receive the indictment,” he stated. 

He suggested that the Attorney General's Office standardize a communication model throughout the country that does not pass judgment on those under investigation and does not lead the reader to anticipate guilt. 

The case

Members of the Public Prosecutor's Office who worked on "Lava Jato" filed charges against MDB senators Romero Jucá, Edison Lobão, and his son Márcio Lobão in March 2016 for alleged crimes in the construction of the Angra 3 nuclear power plant. At the time, there were confidential precautionary measures underway. However, a day later, the Federal Public Prosecutor's Office website reported the filing of the charges and details thereof. The Federal Court in Rio de Janeiro reinforced the confidentiality of the proceedings a few days later.

In June 2021, the National Inspectorate of the Public Prosecutor's Office proposed the opening of an administrative disciplinary proceeding (PAD) against those involved. According to the body, the Lava Jato prosecutors breached their duty of confidentiality by providing the data from the complaints to the press office of the Federal Public Prosecutor's Office.

The defense of the accused, led by lawyer Fabio Medina Osório, argues that the investigation of the then-senators themselves had been under seal since 2017. The defense of the prosecutors in the case, handled by lawyer [name missing], is also being handled by [lawyer's name missing]. Saul Tourinho Leal claims that the judge in the case stated that there was no order for confidentiality.

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