Corruption is not fighting by engaging in corruption

The original characteristics of a criminal process enable that some procedures should be practiced and others not. When some rules are fulfilled, and others are not, the agent of law will be corrupting the legal and the accusatory systems. It turns to be the fight against corruption with corruption.

LEANDRO DEMORI

For every journalist, what is the difference between the justice system and the revenge system? Returning to the term omerta, and the mafia systems, they live a revenge system. They can even eventually promote justice, but in the middle of the road have committed many injustices and disrespect laws. A justice system cannot do this. Justice does not work by committing illegalities, for we must not fighting corruption through corruption.

In Brazil, corruption is a widely used term for embezzlement of public money. The corruption is much more than bribery. It is intentionally altering the original character of something, by tampering and forging.

The original characteristics of a criminal process enable that some procedures should be practiced and others not. When some rules are fulfilled, and others are not, the agent of law will be corrupting the legal and the accusatory systems. It turns to be the fight against corruption with corruption. The state agency in charge of controlling acts of corruption is doing the same they should fight.

Yes, Dallagnol is a corrupt

When discussing this subject matter we can notice people with fear even because of a lawsuit. “Oh, you are appointing Deltan Dallagnol as corrupt.” Yes, I’m calling him a corrupt because exists increasing evidence in Vaza Jato that the coordinator of the Car Wash Operation subverted the due accusatory system and the due process.

I am not stating here that the mentioned prosecutor is corrupt because he stole public money. Corruption isn’t just cheating public resources. The imputation of corrupt is also up to those who harm the justice system in the most different illicit ways.

In this regard, I remember the issue of the press and the violence generated by headlines as an instrument of judicial corruption. One of the first three reports of the Intercept Brasil, from the series of materials of Vaza Jato dealt with Lula’s triplex building process, in which judge Sérgio Moro offered the prosecutor Deltan Dallagnol a witness, by Telegram, outside the legal court procedures (THE INTERCEPT BRASIL, 2019)[1].

One can say that if a judge becomes aware of a witness who attended his office to provide some information about one supposed fact at trial, the magistrate would have a duty to inform the prosecutor. So the interested party would be able to ask the court of jurisdiction for information about that episode: – Who, how, what day?

Yes, the judge also would have this obligation to notify the process in front of the public eyes. And that’s not what happened. It was not the procedure announced by those involved in response to The Intercept story. They lied to the public, creating a parallel reality.

Judge Sergio Moro clandestinely passed the tip of a witness against former President Lula to the prosecutor Deltan Dallagnol. As the representative of the MPF could not call this testifier, because he knows he was receiving a deceitful tip, he argues that would try to intimate the supposed witness based on apocryphal news, using the press with the violence generated by headlines.

What seems obvious in this dialogue, Attorney Dallagnol would cause someone to give news about the witness passed clandestinely by Judge Moro. And then, with this news in hand, the MP would have the power to go to the judge and say: “Look, it has become a public fact that this person is running for crime, so I need to subpoena that person to listen to it.”

The Intercept published a story containing the scandalous content of the dialogue held in private chat, on the date of 07/12/2015, between the judge holding the criminal court (judge) and the prosecutor of the Republic (accuser), where the Car Wash processes are being processed, in Curitiba.

The use of violence generated by headlines to make his speech performative, create the very reality of the process to the personal judgment of the holder of the criminal prosecution, are evidence of the practice of corruption of the accusatory system.

To better understand judge Moro’s illegality on the issue of the Brazilian Penal System, I use the teachings of Eduardo Ribeiro Moreira, a free professor in Constitutional Law – USP; Ph.D. in Constitutional Law – PUC-SP; Adjunct Professor of Constitutional Law – UFRJ. And Margarida Lacombe Camargo, Ph.D. and Master in Law, Professor of Law Theory – UFRJ. The concept of the Criminal Procedural System is based on the primordial division between accusation and inquisition that, after centuries of practices, in all societies, constituted the Accusatory and Inquisitive Systems with four primary differences, highlighted in the magisterium of the cited retro indoctrinators, verbis:

[…] The first primary difference is the division of powers and the separation of functions of investigating, prosecuting, and judging. It is undoubtedly the most highlighted difference between the Accusatory and Inquisitive Systems. When the judge concentrates those functions on his hands, one will necessarily stand before the Inquisitive System. In these cases, there is no free conviction expressed by a sentence, because the judge who carried out investigations and formulated the accusation, has already formed his intimate conviction when acting in this way. He is very conducive to convict the defendant.

In the Accusatory System, the separation of functions arises not only by the Public Prosecutor [to formulate the accusation] but also by the Judicial Police that takes care of investigations and compliments of due diligence and the defense that guards the interests of the defendant.

The second primary difference is that in the Inquisitive System there is no contradictory or broad defense because in most cases in which it was applied the defense was not admitted. The Accusatory System, on the contrary, deems means to defendant provide his full technical defense, including the nullity of acts proven in violation of the basic principles. These guarantees are positive in all democratic constitutions.

The third remarkable characteristic […] is that of subjectivity in the Inquisitive System. The defendant is the object of the process. The evaluations fall on his previous conduct and even on his state of mind, allowing arbitrariness and uncertainty. The criminal law of the perpetrator is always committed to aggravating a situation admittedly harmful to the defendant since it admits prejudice interpretations and, worst, persecution stalking the disaffected, and on the other hand, the protection of friends. The Criminal Law based on facts, used by the Accusatory System, evaluates only the action committed, indistinctly – whatever the author is – and with criteria met by law […].

It is not enough to request pieces of evidence by the Public Prosecutor’s Office. They must comply with demanding legal criteria, such as those set down to restrict telephone interception or confession. In this way, the evidence is examed.  We will not have legal certainty since there are other fundamental rights to be preserved, such as personal intimacy and professional secrecy. Achieving these rights under the pretext of convicting a suspect at all costs, without other evidence, harms the whole of society.

The fourth and final primary difference concerns the presumption that one has of the defendant, causing the burden of proof to be reversed. Thus, the principle of presumption of innocence governs the Accusatory System in which the defendant is held to be innocent. Not the first-degree conviction of jurisdiction results in the loss of that presumption. The defendant must be convicted, without legal possibility to reverse this situation – subject to criminal review – at which point he ceases to be a defendant and innocent and becomes convicted and guilty. The Inquisitive System acts on the principle of guilt, since the defendant, the subject of the trial and trial, is found guilty and must prove his innocence to exempt himself from a sentence.

All arrests, therefore, in the Accusatory System, must be definitive or, before that, only if necessary to ensure the final result, concerning the regular progress and its final execution. If the defendant is, from the outset, found guilty, it is justified, in the sissy, to keep him imprisoned from criminal instruction. Otherwise, no. In other words, the Accusatory System is only effective if accompanied by the principle of presumption of innocence. […] (MOREIRA & CAMARGO, 2016)[3]

Under the authors’ teachings in the above transcript, the Criminal Procedural System adopted by the magistrates and prosecutors of the Republic who work in the task forces of Lava Jato, in Curitiba, São Paulo, and Rio de Janeiro does not fit the Accusatory System, approaching the Inquisitive System, constituting a frontal violation of the Federal Constitution and the Brazilian Code of Criminal Procedure.

Corruption is not fighting by engaging in corruption is an extract text translated from a complete paper in the book Lawfare sob Debate. Goiânia-GO: Editora Kelps, 2020

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[1] THE INTERCEPT BRAZIL. Lava Jato’s secret messages. Part one. Jun 9. 2019. Available in: https://theintercept.com/2019/06/09/editorial-chats-telegram-Lava Jato-moro. Accessed: 12 Oct. 2019.

[2] THE INTERCEPT BRAZIL. Read the dialogues of Sérgio Moro and Deltan Dallagnol that supported the intercept report, June 12. 2019. Available in: <https://theintercept.com/2019/06/12/chat-Sérgio-moro-deltan-dallagnol-lavajato/&gt;. Accessed: 13 Oct. 2019.

[3] MOREIRA, Eduardo Ribeiro; CAMARGO, Margarida Lacombe. Criminal procedural systems in the light of the Constitution. Journal of Constitutional and International Law – RDCI vol. 97, Sept. Out. 2016. Available in: http://www.mpsp.mp.br/portal/page/portal/documentacao_e_divulgacao/doc_ library/bibli_servicos_ produtosbibli_bol. Accessed: 13 Oct. 2019.

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