The dilemma of written statements in the Odebrecht case: An obstacle to justice?

In August, the Third National Collegiate Criminal Court will determine whether it will hear the written statements provided by former Odebrecht executives before the public trial against former president Ollanta Humala, in relation to the alleged contributions that the Brazilian company would have made to the Peruvian Nationalist Party during the 2011 electoral campaign. This decision will have repercussions on all trials related to the Lava Jato case, including the "Cocktails" case that has just begun against Keiko Fujimori Higuchi and Fuerza Popular, where the prosecution has also offered the testimony of Jorge Barata and Marcelo Odebrecht. However, the former executives of the Brazilian construction company are resisting to testify before Peruvian authorities in money laundering trials. This is a crime that Odebrecht has never admitted in its collaboration processes with authorities in Peru, Switzerland, Brazil, and the United States. In September and October 2023, the Third Collegiate Criminal Court, composed of judges Juana Caballero Salazar, Nayko Coronado Laura, and Max Vengoa Valdiglesias, dispensed with the in-person testimony of Jorge Barata, Marcelo Odebrecht, Luis Mameri, Fernando Migliaccio, Hilberto Masccarenhas Filho, Joao Cerqueira de Santana, and Valfredo de Assis Ribeiro after several summonses throughout the year to testify before the judges. In this context, the Special Prosecutor of the Lava Jato case, Germán Juárez Atoche, offered the written statements of the mentioned former Odebrecht officials before the trial, which have been recorded on video and transcribed. Some of these statements have been made in the presence of the defense attorneys of the accused. In a public trial, the main idea is for the judges to directly hear the testimony of the witnesses to better understand the facts in trial and evaluate the reliability of the statements, while allowing prosecutors and defense attorneys to ask questions that lead to the truth. When, for various reasons, it is not possible for the judges to hear the testimony directly, pretrial statements can be read instead. However, the reading of pretrial statements is not automatic; it must be evaluated and argued whether the reasons for the absence legally justify resorting to reading a statement to ensure the rights of the parties. Regarding the contributions to the Peruvian Nationalist Party campaign, the Third National Collegiate Criminal Court is scheduled to hold a hearing in August to decide on this matter. "The prosecution will present its arguments, and we will do the same, then the judges will decide whether to admit the written statements," said the defense attorney of former president Ollanta Humala, Wilfredo Pedraza. The Odebrecht executives excused themselves from testifying due to a prohibition by the Supreme Court judge of Brazil, José Antonio Dias Toffoli, who declared the evidence in the Lava Jato case shared with Peruvian prosecutors by the Brazilian Task Force as invalid and illegal. The Lava Jato Task Force in Brazil received the files from the MyWebDay and Drousys servers directly from Odebrecht and not through judicial cooperation with Switzerland. Subsequently, the Brazilian judicial system ruled that this delivery compromised the chain of custody and that there was no certainty that the evidence had not been manipulated, declaring them invalid to not affect the right to defense. In light of this situation, Humala's defense filed a habeas corpus petition in Brazil, which was accepted by Judge Dias Toffoli, who prohibited the Odebrecht executives from testifying on evidence that had been declared illicit. This will be the central point of the debate to be held in August. The prosecution argues that the evidence received and incorporated into the trial regarding contributions to the Peruvian Nationalist Party comes from judicial cooperation with Switzerland and not from contacts with the Lava Jato Task Force in Brazil, so the prohibition for Odebrecht executives to testify in Peru is a legal strategy of the defense attorneys. On the other hand, Humala's defense will insist that the MyWebDay and Drousys files containing the statements of Jorge Barata, Marcelo Odebrecht, and other Brazilian witnesses to Peruvian prosecutors were provided by the company and Brazilian prosecutors, and that cooperation with Switzerland came much later. Although part of the same group, a special case is that of the former Odebrecht superintendent in Peru, Jorge Barata. He was required to testify before Peruvian judges due to his effective collaboration agreement with Peruvian prosecutors, however, he did not appear before the judges. In response to this refusal, prosecutor José Domingo Pérez requested the revocation of the effective collaboration and benefits granted to Barata. Subsequently, the former superintendent of the Brazilian construction company announced that he would not testify before Peruvian authorities again. This refusal to testify no longer depends on the Brazilian judicial system. The Third National Collegiate Criminal Court must evaluate all these facts and their legal implications for due process, the right to defense, and the authority of the prosecution to prove in order to make a decision: whether to admit the written pretrial statements for consideration in the final decision. The decision made by judges Juana Caballero Salazar, Nayko Coronado Laura, and Max Vengoa Valdiglesias will have an impact on the other Lava Jato cases and the Cocktails case. These same judges are in charge of the trial of Keiko Fujimori and Fuerza Popular. In the Cocktails case trial, prosecutor José Domingo Pérez also offered the testimony of Jorge Barata and Marcelo Odebrecht. If they also fail to appear for in-person testimony, the same situation as in the Humala case will arise. The judges will have to assess the situation and make a decision, which cannot be different, given that they are similar events.