Hacked chats expose questionable methods used by Swiss and Brazilian corruption prosecutors

Over the past six years, Switzerland has been a key player in Brazil’s largest ever anti-corruption drama, Operation Lava Jato (Portuguese for “car wash”). The operation has unearthed the shady dealings of some of its major corporations and political parties.

As part of its agreement to provide legal assistance to Brazil, the Swiss Office of the Attorney General (OAG) froze more than a thousand accounts in 40 different banks, totaling more than $1.1 billion (CHF970 million). A total of 210 official requests for collaboration to investigate suspects were issued by the Brazilians. Without Switzerland, many cases in Brazil would unlikely have been brought to trial. In total, more than US$ 700 million (CHF 620 million) lying in accounts in Geneva, Lugano and Zurich were returned to Brazil.

However, recent revelations have shed new light on how Swiss and Brazilian prosecutors cooperated. According to documents released by the Supreme Court in Brazil, part of the exchange of information on bank accounts and names of suspects was shared via the instant messaging app Telegram, and not through the official channels.

The revelations immediately raised questions: can investigators from different countries legally exchange information in an informal way? Did they violate cooperation agreements? Did they undermine the rule of law?

Collusion matters

This story began in 2019, when hackers obtained access to the phones of Brazilian prosecutors and, most notably, to hundreds of messages exchanged on Telegram. When the details reached the press that year, the first evidence of collusion between the then judge Sergio Moro, responsible for trying the cases, and the prosecutors who were supposed to investigate corruption, surfaced.

When the anticorruption operations began, in 2014, Moro achieved a sort of national hero status, in a country hungry for changes to its political system and to put an end in endemic corruption.

One of his most relevant decisions was to convict former president Luiz Inácio Lula da Silva of corruption in a process still contested by law experts for being based on feeble or inexistent evidence.

The leaked chats, first exposed in the Brazilian media in 2019, confirmed these doubts, sparking worldwide condemnation of Lula’s arrest.

“We were shocked to see how the fundamental rules of Brazilian due process were violated without any shame. In a country where justice is the same for everyone, a judge cannot be both judge and party to proceedings”, said a joint statement signed by Susan Rose-Ackerman (Yale University School of Law), Herta Daubler-Gmelin (former German Justice minister), Baltasar Garzón (Spanish judge famous for the Pinochet process), among others.

Lula was de facto unable to take part in the 2018 presidential race, which he was leading, opening the path for the election of the far-right candidate, Jair Bolsonaro.

It was Bolsonaro himself who, once in power, named Moro as his Minister of Justice. And it was in this new capacity that the former judge authorized a police operation to seize the hackers’ material and arrest the authors of the attacks in 2019. The hackers are still in prison.

Leaks cleared by the Supreme Court

Last week, in a new twist to the case, Brazil’s Supreme Court ordered that data confiscated by Brazilian Federal Police be made available to Lula’s defense team.

In Brazil, the case has shaken the country’s Supreme Court and the revelations of the Telegram exchanges have generated indignation among some of the justices, especially concerning how investigations of Operation Car Wash were handled between the judges and prosecutors, and how the cases were constructed.

For Lula’s defence team, the hacked Telegram chats reveal “clandestine channels” of cooperation between Brazilians and the Swiss. The Brazilian prosecutors claim that nothing was done outside the rule of the law.

One of the arguments made by the former president’s defence refers to the fact that, far from the traditional paths of international cooperation, the Swiss and Brazilians used informal chats for over a year to exchange names of suspects, as well as information on bank accounts and corruption schemes.

Constant exchange of suspects’ names via chats

On March 23, 2016, for example, then Swiss prosecutor Stefan Lenz wrote in the Telegram chat group to his Brazilian counterparts: “Some information about Alvaro Novis: he is the beneficiary of a Siena Assets International Corp. account also at PKB Bank. He is also heavily involved in the scam!” The message is complemented with spreadsheets of payments made by Odebrecht, one of Brazil’s largest business conglomerates.

The next day, the exchange of names and accounts continued. Lenz asked, “Do you have any information on Jose Americo Vieira Spinola, he is involved in the ODE [Odebrecht] scheme with Erie International LLC, account with PKB bank?” He also asked for information on Antonio Claudio Albernaz Cordeiro (Tonico), also detailing his accounts and bank.

The practice continued for months, implicating many other suspects. On August 25, 2016, Lenz told the chat group about a bank report mentioning a certain Luiz Antonio Batagini. “He is involved in your investigations/are you interested in him or his bank account?”.

This was not isolated behavior. In 2017, after Walter Maeder replaced Lenz at the Swiss OAG, the practice continued. On February 2 of that year, Maeder joined the chat group and made a first request. “Do you have anything on Ronaldo Cezar Coelho [banker and elected member of the Brazilian House of Representatives]? Do you have a case open or are you interested? I have got a suspicious Money (sic) report. There is still some millions in it? If there is an interest, please contact me and let me know who is responsible at your side”, he asked.

In Brazil, the answer was clear: “He has a connection with José Serra. Serra is a Brazilian politician actually. There is a guy from ODE [Odebrecht] who says: Ronaldo receives bribes and give [them] to Serra,” said Lava Jato prosecutor Diogo Castor de Mattos.

A former governor of São Paulo, former Foreign Minister, former Minister of Health, senator and a presidential candidate in several occasions, Serra has been a heavy-weight political figure since the end of the military regime (1985).

Pressure during meetings 

The messages between the Brazilian and Swiss prosecutors were not limited to exchanges of names or personal requests. In the Telegram exchanges, it was clear that the data would be used to pressure suspects in meetings in Brazil.

On April 7, 2016, prosecutor Deltan Dallagnol made a direct request to Lenz. “Stefan, do you have a list of the Odebrecht offshores and the offshore accounts?” Less than 20 minutes later, the Swiss replied in the affirmative. “Yes, one we seized from FM (Fernando Miggliaccio)”. Two months before, the Swiss authorities in Geneva had arrested Fernando Miggliaccio, a former official in Odebrecht’s Structured Operations Department and responsible for organizing the payment of bribes.

Lenz mentioned the fact that an attaché at the Swiss embassy in Brasilia was authorized to pass the data to the Brazilians, but only for “intelligence purposes”. According to the Swiss, the files contained not only offshore companies and other accounts, but also “all payments made by ODE’s offshore companies”.

Once again, access to the information would return to the group’s chat on April 11. In addition to the attaché at the embassy, Lenz also offered another way for the group to access the data.

“If it is useful for you for tomorrow’s meeting, I can give you the information about all the offshores directly and indirectly controlled by ODE as far as FM (Fernando Miggliaccio) is concerned by tomorrow morning Swiss time,” he wrote.

Without naming what the meeting would be, one of the Car Wash prosecutors, Orlando Martello, would reply on how he would use the data the Swiss would pass on via chat.

“The information about how many offshores are directly or indirectly related to the ODE would be useful for tomorrow’s meetings,” he said. “I will not give them the names of the companies, but I will tell them that they need to clarify all the transactions that were made by their offshores (under their control) and, at least, explain and clarify the transactions and the beneficial owners of the offshores associated to them. Besides that, I will demand from them the others information [sic] you have already requested,” he said.

As promised the next day, Lenz sent a PDF file to the chat group. “Here is the list,” he said. “The names in ‘managed by’ are not on the original sheet. Either FM was telling us or we know from other evidence we have. Good luck in today’s meetings,” said the Swiss.

The information on the network of companies was seen as fundamental to unlocking the case on Odebrecht. Unlike other companies investigated by Lava Jato, Odebrecht had created a sophisticated system to camouflage the route for the payment of bribes.

By Jamil Chade, SWI swissinfo.ch, 18 February 2021

Read more at SWI swissinfo.ch

Source: riskscreen.com