ANALYSIS-Murder charges in Vale dam collapse case complicate Brazilian probes

by Reuters
Monday, 27 January 2020 21:00 GMT

By Marta Nogueira

RIO DE JANEIRO, Jan 27 (Reuters) - The filing of murder charges against the former CEO of Brazilian miner Vale SA and 15 others for a 2019 dam collapse that killed more than 250 people was hailed by victims' families as a major step in bringing those responsible to justice.

But the move by state prosecutors in Brazil's Minas Gerais risks driving a wedge between their investigation and a parallel probe at the federal level, complicating the judicial process and potentially making convictions less likely, according to a lawyer with knowledge of the case and other legal experts.

Federal investigators are yet to identify the cause of the Jan. 25, 2019 collapse of a tailings dam at the Corrego do Feijao iron ore mine dam east of Brumadinho, which released a sea of mud that slammed into Vale's offices and cut through a nearby community, killing 259 people and leaving 11 still missing. It was one of the world's worst mining tragedies.

The final results of a complex study will not be completed until June, they say.

That delay has put the state and federal investigations out of synch, recalling the legal problems that dogged the prosecution of a similar mining disaster in Brazil in 2015.

"The charges are a bit of a surprise," said Davi Tangerino, a lawyer and law professor at Fundação Getulio Vargas in Sao Paulo, "because of the awaited technical study."

"I don't think there are the concrete elements required for homicide charges, precisely because this technical part is missing," Tangerino added.

A legal source involved in the case, speaking on condition of anonymity, said the divergence between the state and federal prosecutions was likely to be exploited by defense lawyers.

"It gives a lot of ammunition to the defense," the source said, adding that Vale would seek to portray the lack of a technical study into the disaster as a flaw in the prosecution's case.

On the day the charges were announced, the Rio de Janeiro-based miner and lawyers for its former chief executive officer, Fabio Schvartsman, stressed that the technical study was not yet complete.

Schvartsman's lawyers described the murder charges as "hasty and unfair" without the investigation's conclusions. The others charged were managers at Vale and employees of the auditing company that had vouched for the safety of the dam.

"Fabio always cooperated with the investigations ... in the belief that any decision about criminal responsibility would be made on technical criteria. Unfortunately that's not what happened," his lawyers said in a statement to Reuters for this story.

Vale told Reuters in a statement it "considers it essential to have an expert, technical and scientific conclusion on the causes of the rupture ... before responsibility is pointed out." The company said it was cooperating with authorities and helping those affected by the disaster.

State prosecutors did not immediately respond to requests for comment. When presenting the charges, they said Vale had internal information showing various dams to have an unacceptable risk profile, including the one that collapsed last year.

Federal prosecutors said they had maintained communication with their state counterparts since the start to gather evidence and secure successful prosecutions.

JURISDICTION

For Alberto Zacharias Toron, a lawyer and professor in criminal law, the filing of the murder charges sets up a possible dispute over jurisdiction of the case, which could play into the hands of the defense.

"The Supreme Court could say the case is federal and all this work will be annulled, including the charges," he said.

Deciding the jurisdiction of a case can be complicated, especially when it involves multiple people, areas and crimes. Certain forests and parks are federal, for example, whereas murder is often regarded as the remit of the state.

The criminal investigation into the similar Mariana dam disaster, which occurred at a mine co-owned by Vale just over three years before the one at Brumadinho, experienced long delays due to arguments over jurisdiction.

The case was finally tried in federal courts, partly because the scale of the disaster meant it polluted a federal river and impacted multiple states.

Toron, who worked for the defense during those investigations, said board members of the joint venture operating the Mariana dam were also accused of murder but the defense successfully had the charges reduced to the lesser charge of flooding resulting in death. That alone caused a seven-month delay.

Even those lesser charges were later rejected by a federal judge last September on the grounds that board members did not "exercise management roles." Federal prosecutors have appealed.

In the Brumadinho case, state prosecutors have focused on management, rather than board members, but it remains to be seen whether that will help secure convictions. (Reporting by Marta Nogueira Writing by Stephen Eisenhammer Editing by Paul Simao)

Our Standards: The Thomson Reuters Trust Principles.