On August 22, 2017 a panel of Appellate Federal Judges of the
Regional Federal Tribunal of the 4th Region (TRF4) responsible for
civil lawsuits in the context of operation Car Wash ruled, that the
Federal Prosecutor's Office (MPF) alone cannot sign leniency
agreements regarding Administrative Improbity acts.
The ruling comes in reference to a freezing order issued against
Odebrecht upon the request of the Attorney-General's Office
(AGU) to ensure recoupment of damages to the Treasury following
suspicions of overcharges amounting to BRL 2,1 billion in the
construction works of the Abreu e Lima refinery in
Pernambuco.
Odebrecht's assets had been frozen but were later released by
the trial court after the signing of the leniency agreement between
the company and the MPF. The Attorney-General's Office filed an
appeal to the Appellate Court, and the Reporting Appellate Federal
Judge granted a preliminary injunction to reinstate the freezing
order.
The Full Panel of the Court affirmed the preliminary injunction,
having argued that only the Office of the Comptroller-General (CGU)
can represent the Federal Union in leniency agreements, so the CGU
would have to analyze and approve the agreements signed by the MPF.
As such, the Court ordered the suspension of the effectiveness of
the leniency agreement until the CGU's approval.
Although Law No. 12,846/2013 ("Anti-corruption Law")
entered into force in January 2014, previous corrupt events may
also constitute Administrative Improbity acts as per Law No.
8,429/1992, which subjects violating entities and individuals to
civil and administrative penalties.
The ruling may represent an important limitation on the competences
and attributions of Public Authorities regarding negotiation and
signature of leniency agreements.
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