Lawfare in Brazil*

In Brazil, there is a kind of naturalization of the judge partiality. It concerns the idea of the judge engaged in causes. A judge only must comply with the Constitution and the Laws.

FLÁVIO DINO

How did Lawfare come about? What is its tangibility? What are the tools that we can recognize in lawfare practices in Brazil?

There are five fundamental instruments or practices that demonstrate Lawfare in Brazil.

Partial Judge

The first instrument of Lawfare is the partial judge who engages in cases. According to the norm, a judge does not fight because he has no opponent. A judge must remain equidistant from the parties.

Let’s imagine a soccer referee who advises one team and fights the other in a lively match. The referee says: “I am partial because I am fighting one team and advising the other.” Probably, the soccer referee should be expelled from the championship. 

In Brazil, there is a kind of naturalization of the judge partiality. It concerns the idea of the judge engaged in causes. A judge only must comply with the Constitution and the Laws. Through the issuance of motivated and reasoned decisions, a judge acts according to abstract normative parameters launched by those who have the legitimacy to do so.

The Code of Criminal Procedure (Código de Processo Penal – CPP in Portuguese) approved in Brazil in 1941 clearly states that the judge who advises one of the parties is a suspect. The CPP also declares, with all the letters, almost 100 years ago, that the sentence handed down by a suspect judge is null and void (Art. 564, item I of the CPP).

Abusive use of legal institutes

The second instrument of Lawfare practice in Brazil refers to the abusive use of legitimate institutes. Everyone knows the difference between use and abuse; it is an intuitive, practical difference in everyday life.

Some legal institutes such as bench warrant (Condução coercitiva in Portuguese), preventive imprisonment, plea bargaining, and leniency agreements may be the object of use or abuse. What happened in Brazil was the deformation, by abuse, of legal institutes for Lawfare goals.

Coercion of accused persons

The institute of bench warrant regulated in arts. 218 and 260 of the CPP establish that a person, whether a witness or accused, can be conducted by enforcement if, subpoenaed, they refuse to testify. Hundreds of bench warranties have taken place in Brazil without a prior subpoena. People woke up with the Federal Police in their homes at six o’clock in the morning, dragging them to testify, without even knowing about the accusation.

“But am I being charged?” Franz Kafka reminds us in The Process¹. Someone asks the torturer about a citizen under torture: “What is the accusation over him? The torturer answers: “I don’t know. He hasn’t said anything yet.”

The “condução coercitiva” worked like this until the Supreme Court (STF in Portuguese) stated that the law is valid! As happened with the late Dean Cancellier of the UFSC, hundreds of people were conducted by force, and evidence illegally obtained was used in processes that are still running, despite the decision of the STF that these kind of bench warrant violated the Code of Criminal Procedure.

Preventive Detention

Preventive custody is an instrument abusively used for Lawfare purposes, despite its regulation in articles 311 to 316 of the CPP. During the period in which the perpetrator was a criminal judge, it is complicated to decree preventive custody. In the past – 15 years ago – it was hard to ask for and even more difficult to sustain, preventive imprisonment. And when the judge authorized it, there was desperation because jurisprudence determined the period of 81 days for the judge to finish the process between this time, on the other hand, pre-trial detention became illegal.

Like the pre-Socratic story that one never bathes twice in the waters of the same river, when bathing again in the river of Criminal Law Procedures, one discovers that the river was another. Everything changes. There was no more time for preventive imprisonment, because of another abuse, this time, the plea bargain.

Plea bargain and the leniency agreement

The plea bargain applied to individuals and the corresponding leniency agreement (or program) applied to legal entities are positive institutes in Brazilian law, often distorted today (see Chapter 6.3 below). The plea bargain report (articles 3, I, 4 and 6 of Law 12.850/2013) has two assumptions:

i) The first assumption is that the prosecutor alone does not produce sufficient evidence to condemn anyone. For a reason, the defendant has a personal interest of his own. He has not only the right but also the duty to protect himself. In other words, the evidence that emerges from the plea bargain, alone, cannot condemn anyone. However, there have been many convictions in Brazil-based exclusively on the cooperation of the accused.

ii) The second assumption is that plea bargain must be voluntary because of the abusive use of pre-trial detention to force the offender to denounce. For example, it happens to the point of decreeing a daughter’s pre-trial detention to force her father hand to plea bargaining.

In Brazil, the abuse of positive institutes brings to light the reasons why the inventor of the guillotine died guillotined. All those doctrinal modern legal institutes have been sanctioned by former Presidents Lula and Dilma. Unfortunately, in practice, such instruments have been misapplied or abused, distorting the actual legal institutes.

Selective Leaks

The third instrument of Lawfare practice is the selective leaks of procedural acts and tests, linked to the logic of the civilization of the spectacle, scheduled by media, according to the time of the television news and political agenda – two or three days before an election, for example – to ensure the political impact by leakage of some data and not others.

The lethality of this instrument of Lawfare took place in the episode in which former President Lula was prevented from assuming the position of Chief of Staff of former President Dilma government.

Dehumanization of the accused

The fourth way in which Lawfare makes explicit the misuse of positive legal institutes, already mentioned – bench warrant, preventive detention, and plea bargaining – is through the dehumanization of the accused. Lawfare reduces the human being to a mere thing to be destroyed, treated with contempt and, therefore, called by the nickname, which does not have its pains respected, because after all, he is not a person, he is a thing or, at most, the enemy to be annihilated, with total contempt for fundamental rights.

In hundreds of hearings listening to thousands of people, there is no memory of ever having to shout, humiliate someone to exercise the authority of a judge in a courtroom, because those who have the authority don’t have to humiliate anyone to ensure it. Today, as some judges and judges behave courteously to some and brutally and inhumanely to others, they eloquently reveal their antipathies that cognitively contaminate their ability to judge fairly.

Aristotle taught some millennia ago that no one is a good judge in his case, and the closer he gets to the object to be judged, the worse judge he is. If the judge has such a deep feeling of antipathy, personal or ideological, the law commands him to decline from that trial, declaring suspicion as an intimate forum for not meeting the subjective conditions to judge the cause.

Spectacular Criminal Process

The fifth practical way in which Lawfare is exercised is through the spectacular handling of criminal proceedings, which reveals itself in various ways. Examples:

i) Judge who condemns is a pop star, or a judge who acquits cannot walk on the street;

ii) Judge who condemns is against impunity, or a judge who acquits is suspected of being a partner of corruption;

iii) Consecutively, the higher the penalty, the better a judge is and the more deserving of society’s applause, but if he applies the penalty according to the law, he is a weak judge, without courage or is involved in something wrong.

The above oppositions are not only in the judicial world, there is a social background that drives and feeds these visions. The judge or member of the Public Ministry who seeks popularity and dreams of running for election, who begins to govern himself according to this logic of seeking extra-procedural, non-legal objectives, will therefore incur the loss of impartiality.

---

[1] KAFKA, Franz. The Process. Alfragide/Portugal: LeYa, 2009
* LAWFARE IN BRAZIL is an extract text translated from a complete paper in the book Lawfare sob Debate. Goiânia-GO: Editora Kelps, 2020

Fernando Ferreira is the compiler of the website lawfare4all.wordpress.com that brings together the organized civil society in the END #LAWFARE4ALL CAMPAIGN