When 283 years become seven

brasilobserver - Mar 07 2016
São Paulo - Polícia Federal chega a construtora Odebrecht na 23ª fase da Operação Lava Jato( Rovena Rosa/Agência Brasil)
In São Paulo, the Brazilian Federal Police arrived at the construction firm Odebrecht during the 23rd phase of the Lava Jato operation (Photo: Rovena Rosa/Agência Brasil)

(Leia em Português)


From discourse to abuse, Brazil’s Federal Police Operation Lava Jato is a true paradox, writes Lenio Luiz Streck


Operation Lava Jato, carried out by Brazil’s Federal Police, investigating bribery scheme at state-owned oil giant Petrobras, is a true paradox. It is its own contradiction. On the one hand, in theory, the friendly talk of fighting corruption and ending impunity. On the other, in practice, the repeated abuses in the use of plea bargains and the constant abandonment of constitutional guarantees.

How is it possible that a total of 283 years in sentences of 13 whistle-blowers has become seven? The problem: there is no supervision. For example, how can a sentence of 13 years become one? The answer is very simple. As there isn’t the ombudsman role in Brazil, which would determine whether a whistle-blower arrangement is proper or improper. The whistle-blower denounces whatever he/she wants and how he/she wants. The Public Ministry (Brazilian body of independent public prosecutors) gives thanks in return, and the judge deliberates.

Many people do not understand what’s wrong with the way these plea bargain agreements are being made. See: no one is in favour of corruption (only the corrupt, of course). But the question is: can we combat impunity by paying any price? Those who today support a decrease in guarantees – yes, you can see important opinion leaders saying things like “we must tackle corruption with exceptional mechanisms” – are and will be the first to complain when their guarantees are not met. How much are we willing to pay in the democracy market? Are we willing to “sell” the Constitution? “Ah, the Constitution is bad in that point.” But in others it is good, isn’t it?

I know it’s unpleasant to say this, but we live in time of utilitarianism in Brazil. That’s why we want to “sell” guarantees. And we could come to a paradox: if all whistle-blowers speak out, what will we have left? And how will we solve contradictory whistle-blowers?

As much we have violence or corruption in Brazil, none of this means that we can act in a consequentialist way. That is, to fight corruption – which is endemic in Brazil – we cannot, of course, trample rights. Justice cannot use the formula of utilitarianism. The ends do not justify the means.

Let’s look at a case. A decision of the Regional Federal Court from July 2015 denied habeas corpus to a defendant of Operation Lava Jato who was already at that time (continues today, more than six months later), arrested for over 500 days. The case obviously had gone beyond the reasonable period that the precedent is setting of about 170 days.

The Regional Federal Court held that the period was justified because the Superior Court of Justice authorized the continuation of preventive detention in the event of “slight delay in the case.” Let’s observe to what extent the Court’s consequentialism/utilitarianism arrive: more than 500 days are understood as a “slight delay”. To fight corruption, can we change the meaning of words? The almost complete absence of protests in the legal community is impressive. We only see the media applausing.

Some lawyers – and I quote Professor Joaquim Falcão, from Getulio Vargas Foundation – say there is a new law in Brazil. Falcão says it is about a generational change in the judiciary, the Public Ministry, the Federal Police: “Judges, prosecutors, police chiefs are younger. They started their careers earlier. They live in a country with press freedom, decline of political parties and indignant private appropriation of public goods. And they have no past to protect or fear. They give more priority to the facts than doctrines. More pragmatism, less bachelorism. More evidence of the case – documents, e-mails, spreadsheets, testimonies, records –, less lessons of foreign manuals or relationship of lawyers with courts.”

I want to add something to what Falcão said. The problem, in my view, is cultural. It turns out that this new generation does the same the previous one used to do. They believe in what I call Judge Cognitive Privilege. The judge decides according to his/her opinion about the law and society and not from what is set out in the Constitution. The motto of the JCP is to decide first, then seek a foundation. What is that? Nothing more, nothing less, than the consequentialism I have been denouncing.

Anyway: it’s a new judiciary, a new Public Ministry and a new Federal Police. The future will tell if I am right. And will tell if they are right, since there is a complaint in the legal community that Lava Jato hits guarantees, with excess of prisons and the use of the whistle-blower as an instrument of pressure.

In this imaginary change, I still say that main defeat in the process of the so-called “mensalão” (corruption scheme involving members of parliament) was to the legal doctrine. The same is happening in the Lava Jato case. The law is becoming what the judge says it is.

Let me explain: from the 1980s to now we have had a not very good transition. The lack of democracy led to a sort of bet on the judiciary role in the face of authoritarian structure of the legislation and the State. So it flourished at a given time, a space that was occupied by activists’ theses, such as legal realism and theses betting on the free appreciation of the law and the evidences by the judge. However, when democracy was recovered and soon after the Constitution was born in 1988, the legal doctrine hasn’t recycled. There started the problem.

Indeed, it is in these hard cases of (real) life such as the Operation Lava Jato that the judges reveal their personal convictions about the law, not forgetting that there was also a profound renewal in the frames of the judiciary and prosecution services. The question is whether the law coincides or not with the personal convictions of the judges (and prosecutors).

In other words, everything goes well and good until the law (a fundamental institution of democracy) become what the judge understands by law. It happens, for example, when someone is arrested and released on the same argument. If everything is, nothing is.

All of this materializes with the decision of the Supreme Federal Court that, against the Constitution, began to allow people convicted in second-degree to be arrested before the final judgment of the case. It turns out that the Criminal Procedure Code (Article 283.) and the Constitution say otherwise: they say that there is a presumption of innocence. This decision confirms what I said: the JCP (Judge Cognitive Privilege) was stronger than the law and the Constitution. This decision has an immediate impact. The very next day, defendants awaiting judgment in liberty began to be arrested. And of course: the decision of the Supreme Federal Court will have very large effects on the Operation Lava Jato. Of course for those who have not denounced anyone; those who denounced receive their prize from the establishment. So 283 years turned to dust.

*Lenio Luiz Streck is professor at UNISINOS-RS and UNESA-RJ, PhD in Constitutional Law, lawyer, member of the Brazilian Academy of Constitutional Law

Originally published at Brasil Observer issue 36