On June 9, 2019, the Sunday’s late-afternoon doldrums were interrupted by the disclosure on The Intercept Brasil’s website of chats between members of the Lava Jato task force and the now Minister of Justice and ex-federal judge, Sérgio Moro.
In the first series, made up of three reports, the site disclosed “highly controversial, politicized and legally dubious” conversations in which members of the Public Prosecutor’s Office and former judge Sérgio Moro privately exchanged information about the cases, that never reached the files. The dialogues reignited the debate over allegations of political and partial nature of the operation.
The scandal, which moved social networks with the tag #vazajato, feeds the debate between detractors and defenders of Operation Lava Jato. Of undeniable impact – with international developments – support for the operation is shaken in the face of allegations of bias, now subsidized by the leaks.
With some of the conversations being considered more problematic than others, the collaboration between Moro and Dallagnol in the strategy of the operation presents itself as a serious violation of the principles that govern Brazilian Criminal Law and Criminal Procedural Law. In addition, they point to a weakening of constitutionalism and the Democratic State of Law, as we will show below.
Adversarial vs. Inquisitorial Criminal System
Moved by narratives “against impunity”, sectors of society blame alleged “excess of criminal guarantees” for defendants in criminal proceedings. The Code of Criminal Procedure (CPP) appeared in 1941, during the Estado Novo dictatorship, permeated by authoritarian characteristics. Still in force and with several reforms, the CPP suffers from a structural defect, typical of its authoritarian origin: the predominance of characteristics of the inquisitorial system.
After the Constitution of 1988, it is possible to observe the phenomenon of the constitutionalisation of the Brazilian criminal procedural system, with the consolidation of a set of procedural-criminal guarantees. The goal is to safeguard fundamental rights and to guarantee the prevalence of an adversarial system.
The inquisitorial system has a subjective character, in which the functions of the judge and the accuser lie in in the same figure. The adversarial system, in turn, aims to protect individual freedoms in a process of rationalization of the punitive power. In this system, the process of incrimination must be based on objective criteria, assuming an equal application of criminal law, through the rights of full defense, cooperating for the maintenance of a democratic order.
The exchange of messages in an unofficial environment between Sérgio Moro and Attorney General Deltan Dallagnol, then responsible for the Carwash Operation, corroborates the arbitrary dynamics of Brazilian Criminal Procedure, in which the judge is able to influence the process, even offering tips on how the investigations should be conducted, a improper role, since it would be moving away from a “disinterested referee” position. This type of practice is closer to the archaic model of CPP and does not comply with the Constitution of 1988. This is what several scholars have long criticized in Brazil.
The principles of impartiality, the natural judge and the legality are limits established for the Judiciary, in order to respect due process of law and the maintenance of a democratic regime. These principles are normative standards to be followed in order to regulate the performance of the State.
The Federal Constitution of 1988 brought substantial changes by strengthening the independence of the Judiciary, an essential condition for building a democratic rule of law. However, this does not give the “leading role” to the judge, to whom the assumption of a “heroic” figure and the adoption of discretionary conducts are not allowed.
The prerogative of criminal prosecution rests exclusively with the Public Prosecutor’s Office, while the judge must guarantee the fundamental rights of the accused in the process. Between them, there is a structure of dialogue, in search of procedural justice. The lack of demarcation between the functions of accusing and judging contributes to the establishment of a procedure set from the beginning with the goal to condemn, contrary to the constitutional provision of the principle of presumption of innocence.
How to lose a constitutional democracy
In “How to save a constitutional democracy“, Tom Ginsburg and Aziz Huq identify three indispensable institutions for a democracy:
- Free and fair elections
- Rights of expression and association, necessary for the democratic process.
- Stability, predictability and publicity of the legal regime (Ginsburg and Huq, 2018, p.9).
The integrity of law and legal institutions are essential for a democracy, since they represent the “rules of the game”. In the electoral competition, for example, they allow citizens to participate democratically without fear of coercion. The information disclosed by The Intercept shows that the combination of judgment and accusation on the best strategy to ensure the success of the operation and the process represents a clear violation of these “rules of the game.”
Article 254, inc. IV, of the Code of Criminal Procedure is clear:
“The judge shall be a suspect, and if he does not, he may be refused by either party:
IV – if he/she advised either party; “
Law enforcement in a clear and consistent manner is essential for a democracy, given that it stabilizes behavior and avoids partisan use of the law, which distorts electoral choice. When he involved himself in the investigation, Moro disrespected not only the Brazilian legislation, but acted on the rules of the democratic game – since a defendant tried by him was supposed to run for the presidential elections. Its performance, more clearly exposed now, contributes to the distrust of institutions that should defend the rule of law and, consequently, democracy.
As Ginsburg and Huq point out, it is not only in relation to the electoral process that the requirements of clarity, consistency and neutral application of the law must be observed: coercive elements (such as criminal law) must also be limited by the rule of law (Ginsburg and Huq, 2018, p.13).
Behind the idea of ”constitutionalism” is the limitation of state power vis-à-vis citizens. It is a protection to avoid abuses of power. When public officials in charge of securing such protection do just the opposite, they demonstrate and contribute to the erosion of this protection commitment – they are prepared to discard the rights of citizens to assert what they want, unlimited by law.
The concerted action between the MPF and the court, not documented in the process, becomes even more burdensome for democracy when evaluating the electoral implications derived from it. The use of state power to interfere in elections is a typical maneuver of authoritarian governments. The leaks show how members of the MPF, participants of the Carwash task force demonstrate their discomfort with the possibility of a PT victory in the 2018 presidential election.
It is interesting to note that ex-Judge Sérgio Moro, since 2004, has argued that it is not problematic to keep someone in custody, with no other reason than to get a confession or collaboration, and that there would be an excessively liberal reading of the right to presumption of innocence in Brazil. This is the kind of rule-of-law (or stability and predictability) easing that is criticized by Ginsburg and Huq (2018).
The performance of former judge Sérgio Moro, as well as of public prosecutor Deltan Dallagnol, was severely criticized by jurists and even by sociologists like Jessé Souza. Instead of seeing in Operation Carwash (Lava-Jato) a total conspiracy, what it was perceived was that it represented the communion of values of what it called a “legal caste”: people who, after passing a difficult public contest, started to receive high salaries that would qualify them to better impose a sense of morality, created by themselves. Or, to use the words of the Minister of the STF, Luís Roberto Barroso, to “push history“. The dialogues have shown a harsh reality that deprives such individuals of the aura of heroes, while bringing to light combinations that have nothing to do with respect for the Brazilian Constitution and law.
It is urgent to advance in the investigations to clarify how much political-electoral motivations guided the work of the group and the extension of the collaboration between Moro and Dallagnol. Otherwise, there will remain a cloud of uncertainties about the illegal and undemocratic character of much of Operation Carwash.
By Emilio Meyer¹, Mariana Rezende² and Bárbara Galvão³
For more information, read here:
All the Intercept reports [EN] – https://theintercept.com/2019/06/09/brazil-archive-operation-car-wash/
Is evidence obtained illegally valid in trials? [PT] – https://www.nexojornal.com.br/expresso/2019/06/15/Provas-obtidas-de-modo-ilegal-s%C3%A3o-v%C3%A1lidas-em-julgamentos?utm_campaign=anexo&utm_source=anexo
Lilia Schwarcz: “The Judiciary was used as revenge and prevented democracy from taking its course” [PT] – https://brasil.elpais.com/brasil/2019/06/05/cultura/1559759225_896804.html
1 Adjunct Professor, Faculty of Law, UFMG. Coordinator of the Study Center on Transitional Justice of the UFMG (CJT / UFMG).
2 Master student of the Graduate Program in Law at UFMG. CAPES-PROEX scholarship holder. Researcher at the Center for the Study of Transitional Justice (CJT / UFMG).
3 Law Student from UFMG. FAPEMIG scholarship holder and researcher at the Center for the Study of Transitional Justice (CJT / UFMG).