Bretas’ decision opens a loophole to annul Nuzman’s conviction for alleged Olympic bribery

A decision by judge Marcelo Bretas at the end of last year opened an opening for the conviction of former COB (Brazilian Olympic Committee) president Carlos Arthur Nuzman to be annulled in the case of the alleged payment of bribes to take the 2016 Olympic Games to the Rio de Janeiro.

Bretas declared that he was incompetent to analyze a criminal action against former governor Sérgio Cabral, accused of receiving bribes from businessman Arthur Soares. This process is directly linked to that of Nuzman because the scheme would have been the source of the alleged payment of US$ 2 million (R$ 10.6 million, in current quotations) to the Senegalese Lamine Diack, member of the IOC (International Olympic Committee) killed in 2021.

The magistrate’s decision was taken after a request from the defense of Cabral and other defendants due to a sequence of determinations by the STF (Federal Supreme Court) and the TRF-2 (Federal Regional Court of the 2nd Region) that withdrew cases of the former governor of the Brittany’s hands.

In December 2021, the Supreme Court considered that Bretas’ competence to judge Cabral’s cases is restricted to those involving bribes paid by contractors.

On the occasion, it was determined to remove cases from Operation Fatura Exposta, on health expenses, from the hands of the judge. The basis of the decision, however, has been used to withdraw other actions by Bretas, some of them already judged.

They have similarities with the case of Operation Unfair Play, which resulted in two criminal actions. One of them, the one that came out of the hands of Bretas.

“I verify that, in fact, the present criminal action refers to alleged illicit acts not linked to Operation Calicut, therefore, there is no evidence, so far, of a relationship with the facts investigated in said operation and that are being processed before this court”, wrote the magistrate.

Bretas did not declare himself incompetent to judge the criminal action in which he convicted the former president of the COB because it is no longer in his hands. After he handed down the sentence, the defendants appealed the decision, which took the case to the TRF-2. It is up to the defenses, now, to request the analysis of the correct attribution to judge the case.

The defense of Sérgio Cabral, also convicted of the so-called “Olympic kickback”, stated that he should ask the TRF-2 to annul the sentence.

“The recognition of incompetence by Judge Marcelo Bretas in the Unfair Play operation ends up directly affecting the processes involving the other operation, already sentenced by him, which have as their scope the choice of Rio de Janeiro to host the 2016 Olympics. to the incompetence of the judgment of the 7th Court are being energetically faced by the defense”, said, in a note, the lawyer Patrícia Proetti.

Lawyer João Francisco Neto, who defends Nuzman, said that “the violation of jurisdiction is just one of the countless illegalities committed by the first-degree judge, who handed down a conviction without support in the evidence in the file”.

“The defense relies on the acquittal of Carlos Arthur Nuzman by the higher court, as the only way to repair the legal violence he has been suffering”, added Neto.

If Bretas is declared incompetent in the case, the process will return to square one, with a new trial by a randomly selected judge.

Nuzman was sentenced to nearly 31 years in prison on charges of involvement in bribing Diack to buy IOC votes for the 2016 Olympic Games.

Nuzman has always denied the accusation. He stated that he was not aware of any payment and that the choice of Rio de Janeiro was the result of the effort made by the bid committee.

His defense also said that the investigated case dealt with possible private corruption, a crime not provided for in Brazilian law. The magistrate understood, however, that the COB is a public entity and that Nuzman had benefits granted to “select public officials”, such as a diplomatic passport, during the campaign.

The director was arrested preventively for 15 days, but was released by habeas corpus of the STJ (Superior Court of Justice). The investigation led to the resignation of the director of the presidency of the COB after 22 years in command of the entity.

Cabral also initially denied the accusation. He went so far as to classify the prosecution’s accusation as a “racial prejudice” during interrogation.

However, the former governor changed his defense strategy, decided to confess and, in a new statement, confirmed the payment of bribes. He said the money passed on would buy up to nine votes, naming former athletes Alexander Popov of Russia and Sergei Bubka of Ukraine as two of them.

He also said that President Lula (PT), then in office, and the mayor of Rio de Janeiro, Eduardo Paes (PSD), knew about the payment. They deny it.

According to Cabral, the biggest concern of the Brazilian delegation was to guarantee a minimum number of supporters in the first round of voting at the IOC.

Four cities were candidates in the 2009 election — in addition to Rio, Madrid, Tokyo and Chicago ran. The winner would be defined by elimination. At each round, the least chosen city was removed from the dispute, starting a new vote.

“Him [Nuzman] arrived with Leo Gryner. ‘Look, Governor, we have every chance of winning. We had a beautiful campaign, the three levels of government involved. The president of the international athletics federation, Lamine Diack, opens himself up to undue advantages. We made contact with him. And there’s a guarantee of five to six votes. And they want $1.5 million,'” Cabral reported.

The emedebista reported that Nuzman and Gryner approached him later asking for another US$ 500,000 in order to guarantee up to nine votes.

In the first round of voting, the Brazilian city had 26 votes, while the North American one was eliminated with 18. If the candidacy from Rio de Janeiro had lost the up to nine votes supposedly bought for the competitor, the city would not have passed.

“It was essential to have these votes guaranteed. Then there was politics. The policy with a small ‘p’ in the first phase and with a capital ‘p’ in the second and third phases”, said Cabral, referring to the campaign for the second vote of the IOC voters.

After the first round, Rio maintained a large advantage over the others, having attracted the votes of voters in the eliminated cities. In the last poll, it overcame Madrid by 66 to 32.

The main evidence in the process was proof of the transfer of US$ 2 million from a company belonging to Soares to a company owned by Papa Massata Diack, son of Lamine.

The link with the vote was determined through emails from Papa Diack to members of Rio-16 in which he charged the promised amount. The delay, as the Senegalese wrote, generated “embarrassment from people who trusted our commitment in Copenhagen”.

In addition to the amount paid by Soares, investigations identified the payment of another US$ 500,000 to Diack through an account of Willy Kraus, owner of an exchange brokerage in Rio de Janeiro, who died in 2015.

Kraus’s transfers coincide with what Papa Diack reported in an email sent to Nuzman’s then secretary, Maria Celeste. In the message, sent on January 6, 2010, he confirms the receipt of two transfers (US$50,000 and US$60,000) and points out a debt of US$340,000.

Two deposits made by Kraus occurred before sending the email with the same amounts. Another two transfers (US$80,000 and US$60,000) occurred after the email was sent.

The investigation identified a series of emails from Papa Diack making demands even after Soares was paid in September 2009. On November 26, 2009, Gryner had sent an email to the Senegalese stating that he had “a different sponsor for that last portion “.

“This sponsor is having problems with this transfer, and we are trying to help him”, wrote the former director of Rio-16. The suspicion is that Kraus is the new “sponsor” or an intermediary for him.