The development of a complex investigation such as that of the Odebrecht case depends fundamentally on four aspects: the investigative capacity of the Public Prosecutor’s Office (MP), effective collaboration of some of the participants in the acts of corruption, diligent action by the Judicial Organ in the face of dilatory recourse, and complexity of the case and the political and institutional environment of the process.
‘There is no work in which Odebrecht acted differently’
Emblematic works in Panama, source of Odebrecht bribes
‘Cachaça’, the second beneficiary of the illegal payments of Odebrecht
Odebrecht did not tell everything: filtering documents reveals new millionaire payments associated with the scandal
The new revelations released last week by the International Consortium of Investigative Journalists (ICIJ ) and this medium test the official investigation developed to date. It is very important to remember that the case is paralyzed pending the outcome of the appeal filed by the Public Ministry before the Superior Court so that it grants an additional term of 6 months to conclude the investigation. Law 121 of 2013 authorizes a period of investigation of up to 4 years for causes recognized as complex. This case has been investigated since January 2017, and has been interrupted several times by guarantees and other legal remedies filed by the defense of the numerous defendants.
There are three scenarios to consider in light of the current procedural situation in this case. The first is that the MP is denied the extension of the investigation term and that therefore it must file an appeal with the Supreme Court of Justice to secure the extension, but that it is also denied. In this circumstance, the MP would have to formally submit the case summaries and request an appeal to trial. The MP would be limited in verifying if the new disclosures are part of the file and would have to manage as a parallel diligence the revision of the effective collaboration agreement with the top executives of the Odebrecht company. This could complicate the prosecution of the current defendants, since the new information, beneficial or harmful, would not be part of the original file.
The second scenario is that the MP receives the requested extension of six months to continue the investigation. Faced with the new revelations, the MP notes that said information is not part of the current body of evidence. This would oblige the MP to rethink the collaboration agreement with Odebrecht, including the fine agreed with the company. Faced with this situation, the MP should concentrate its efforts on procuring all possible information from the actors of this corrupt plot and, even, expand its interviews to include Marcelo Odebrecht himself, Rodrigo Tacla Durán and other figures to validate that The survey has included all the periods of the three governments involved in the Odebrecht contracts in Panama.
What happens if the extension is not enough to do all the adaptation of the investigation? If the MP has not been able to complete the investigation with the new disclosures within six months, he will have no other option but to request another extension, which would be possible given that Law 121 of 2013 authorizes up to four years for this investigation. This term is fatal, that is to say, that after four years the MP would have to submit the case summaries, as they are, to Judge Óscar Carrasquilla, of the Twelfth Criminal Court.
Finally, the third scenario consists in granting the six months requested to the MP and the prosecutors verify that the new disclosures are included in their files. The MP should finish his investigation as he had originally planned and at the end of this term he should send the case summaries to Judge Carrasquilla.
Everything exposed in this analysis has been for didactic purposes and does not presume the guilt of the Odebrecht company or some of its executives in behaviors other than those already accepted nor does it suggest the culpability of other executives of this company in other criminal behaviors.