Operação Lava Jato has created a new era for Brazil’s judicial system


By Madeline Asta

During the week of July 17, Brazil’s Attorney General Rodrigo Janot visited Washington D.C. to discuss Brazil’s current fight against corruption. While in Washington D.C., Janot gave two presentations, one at the Wilson Center’s Brazil Institute titled “The Role of Plea Bargains in the Fight Against Corruption,” and a second at the Atlantic Council titled “Lessons from Brazil: Crisis, Corruption, and Cooperation.” At these events, Janot highlighted the evolution of Brazil’s judicial system to where it is today – convicting high-level officials of corruption, both nationally and internationally with transnational cooperation. The following case study of Brazil’s judicial system takes information from these two events, as well as from past presentations of Brazilian judicial officials hosted by the Wilson Center’s Brazil Institute.

The Evolution of Brazil’s Judicial System

Brazil’s judicial system has evolved from a system that only persecuted black people, poor people, and prostitutes to one determined to conquer the “white-collar” corruption that plagues Brazilian politics. Historically, high-society citizens were immune to the judiciary, but now the system has changed to include investigations into more influential people, specifically high-ranking government officials. The basic structure of Brazil’s judiciary was first established by the 1988 Constitution, which created a high court for federal legislation – the Superior Court of Justice, or TSJ. In addition, the constitution modified the Public Prosecutor’s Office to be an autonomous institution meant to preside over criminal proceedings.

Since 1988, the judicial system has continued to evolve. In 2004, the Constitutional Amendment No. 45 allowed for the use of precedent to determine cases. Furthermore, the National Council of Justice was created to be a judicial agency responsible for overseeing administrative and financial activities within the judiciary, as well as to supervise judges. In 2012, the Lei de Acesso à Informação was passed, giving anyone, regardless of their position in society or motive, access to information on public organizations and entities. This law resembles the main shift of Brazil’s judicial system into what it is today: a transparent structure that aims to regulate illegal activity at all levels of society. However, despite these changes, Brazil’s judicial system is still plagued with bureaucratic barriers, as federal courts suffer from immense backlogs, as they are the only courts that can charge for crimes committed against federal institutions or companies. Within the last five years, Brazil has seen a large amount of these types of crimes – money laundering and bribery cases, largely uncovered by the Lava Jato investigations — which has forced continued modification of the current system. Yet, the case backlog that is seen today is not just a current phenomenon.

In 2010, the Supreme Court had over 100,000 cases waiting to be heard and five years ago there were 100 million total lawsuits within the judiciary. Today, there are still 70 million lawsuits in the judiciary and the Supreme Court has more than 60,000 cases it needs to hear. In addition, in the past, criminal convictions could only be enforced when the case reached its final decision and could no longer be appealed – transitado em julgado. However, these cases could often take around ten years to be decided, and until then, convicted criminals could not be imprisoned. Since 2012, Brazil’s judicial system has made efforts to fix bureaucratic barriers and has primarily done so through the use of plea bargains and immediate convictions.

The recent revolution in Brazil’s judiciary began in 2012 with the Mensalão case, in which the Supreme Court convicted the former chief-minister of the federal government, several congressmen, political leaders, political party operatives, and bank directors for corruption. This case was the first time Brazil’s Supreme Court prosecuted leading politicians for corruption and it directly influenced judicial changes in the years following the convictions. In 2013, with influence from Italy and the United States, Brazil officially defined organized crime and began targeting it in federal investigations. Also in 2013, Brazil signed plea bargains into law; however, these plea bargains were not used consistently until the beginning of Operação Lava Jato in 2014. Plea bargains have played a crucial role in the recent corruption investigations, as 160 plea bargains have been signed since 2014, primarily from Operação Lava Jato. In Brazil, plea bargains must arise voluntarily from the defendant, meaning that the prosecution cannot offer a deal to the defendant. Furthermore, plea bargains are a “means of obtaining proof, not proof in themselves.”

Operação Lava Jato began with investigations into Alberto Youssef, a Brazilian banker, and Paulo Roberto Costa, the former director of Petrobras – the Brazilian oil company in the center of the Lava Jato scandals. After searches and seizures were conducted of their houses and offices, Youssef and Costa proposed plea bargains that revealed connections to a multitude of companies and political elites. The investigations that followed the confessions created a cycle of plea bargains, as defendants continue to sign plea deals to lower their sentences. This has sped up criminal processes that otherwise could have taken years to go through federal courts. Due to the multitude of cases arising through Operação Lava Jato, in 2016, the Supreme Court, authorized immediate enforcement of criminal convictions once they are upheld in appeal courts. Moreover, when convicted, a criminal can be incarcerated as soon as their case is upheld in the first appeal and before it is heard from the Supreme Court, which often takes years. Federal trial judge Sergio Moro, the judge overseeing the Lava Jato investigations, called this decision a “judicial revolution” as it has allowed judges to enforce their convictions more efficiently and fight corruption more aggressively.

In Brazil’s judicial system, police are in charge of conducting investigations and working closely with the Ministerio Público (Public Prosecutor’s Office) to charge for crimes. As a federal trial judge, Moro presides over cases on their first instance of being heard. Additionally, trial judges order pre-trial detention and authorize wiretaps, searches, and seizures. Therefore, Moro works closely with federal police to convict those under investigation for corruption charges. However, Moro’s jurisdiction ends here, as only career judges, judges appointed by the President and serve lifetime terms, can authorize lifts of bank secrecy protections and request bank records during investigations. Due to these varied bureaucratic levels, judges and police at all levels of government must collaborate on investigations. However, when a president, cabinet member, or congress member is charged with a crime, their cases go to a Foro Privilegiado (Privileged Forum), where the Supreme Court hears their cases on the first-instance. This process promotes immunity and exemption from punishment for high-level officials, as well as slows down cases significantly – it can take 18 years for cases to be decided due to backlog in the Supreme Court. In contrast, Moro averages 18 months per case, largely due to the efficiency of plea bargains. The Foro Privilegiado is currently being debated in Congress and bills exist to abolish, minimize, and change it.

While Brazil’s judicial system has made great advances to become more attentive to crime at all levels of society, it still faces authoritative challenges within Brazilian society. Even with the recent use of plea bargains, the judiciary still has an overload of cases and precedent is rarely used to decide cases. Former Justice Teori Zavascki, who presided over the Operação Lava Jato proceedings prior to his death in a plane accident in January, calls the failure to use precedent as the “chronic cultural issue” of Brazilian law. Furthermore, these is an Abuse of Authority bill being debated that will give Congress more power to penalize judges and take jurisdiction away from federal judges, making it harder to authorize wiretaps and bank account disclosures. Already, the Senate presides over crimes committed by the President or Vice-President, with a Chief Justice of the Supreme Court present to simply ensure constitutionality of the judgment – but who has no say in the final conviction.

Despite bureaucratic issues, Brazil’s judicial system has proven to be efficient to unearth the deep-rooted corruption that plagues the government. The principal aspects of Brazil’s judiciary that have ensured the legitimacy of Operação Lava Jato as it targets high-level officials are its transparency and objectiveness of trials. In a presentation at the Wilson Center in Washington D.C. in April 2017, Chief Justice Cármen Lúcia highlighted that all judgments are public in Brazil — trials are available on radio and television in real time, and well-founded, public explanations are given for all decisions. Brazil’s success in Operação Lava Jato to unearth major corruption involving high-profile politicians and transnational companies has led to international cooperation in an effort to tackle the corruption that is revealing to exist in many governments throughout the region.

International Cooperation to Defeat Corruption

Operação Lava Jato exposed an international corruption scandal involving many governments throughout Latin America. During a panel at the Atlantic Council in July, Rodrigo Janot, the Attorney General of Brazil, emphasized that due to globalization, corruption is a regional problem without borders and that there must be regional cooperation to fight and investigate the transnational issue. In the same panel, Kenneth Blanco, the U.S. Assistant Attorney General, emphasized current U.S.-Brazilian collaboration on four corruption cases, including the Odebrecht and Rolls Royce scandals, to ensure that Brazilians living in the United States are not immune to corruption charges. In addition to Janot, during July, officials from Colombia, Ecuador, Mexico, and Panama all visited the United States to speak about how to fight the white-collar corruption that is running rampant in the region.

With assistance from the United States and Switzerland, Brazil has been able to increase its technical training and information sharing to make transnational investigations more compatible. Janot emphasized the need for autonomy within national investigations, but also recognized the need for synergy in regional cooperation to formalize a transnational judicial system. Brazil has already begun doing this by exporting its practice of plea bargains to other Latin American, and African, countries. Furthermore, Janot spoke of a need for Latin American countries to trade information and perspectives, and join forces to promote close trials. International collaboration to combat transnational corruption has already been seen in the Odebrecht scandal, which was revealed through Operação Lava Jato investigations, where prosecutors from eleven countries – Brazil, Dominican Republic, Argentina, Chile, Colombia, Ecuador, Mexico, Peru, Venezuela, Panama, and Portugal – came together and created a task force to share evidence from their autonomous investigations. As the world becomes more interconnected, it becomes easier for corruption and crime to transcend national boundaries and become an international issue. Operação Lava Jato has led the charge to initiate well-structured international cooperation on investigations, a change that will likely remain even after these cases are closed.

Successes of Reform

The changes made to Brazil’s judicial system – the role of plea bargains and transnational cooperation – are irreversible due to the Lava Jato investigation. Brazil’s support of transnational cooperation has also sparked regional integration on issues other than corruption. Following Venezuela’s constitutional assembly vote, Peru called for a regional meeting and foreign ministers from Brazil, Argentina, Canada, Chile, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Panama, and Paraguay plan to attend. Transnational corruption has created a new era of regional cooperation and enforcement of law.

Currently, Brazil’s Operação Lava Jato has had 1,765 court proceedings, issued 844 search warrants, subpoenaed 210 people, issued 207 arrest warrants and 157 sentences, frozen $0.98 billion in assets, and signed 158 plea bargains. Brazilians, and Latin Americans in general, are tired of corruption, as it steals vital resources from people’s health, public security, school, and futures. While corruption has caused a political crisis in Brazil, according to a study done by Ipsos, 96 percent of Brazilians want the investigations to “go until the end, whatever the cost.” Operação Lava Jato has been and continues to be a monumental investigation, and the use of plea bargains has been successful to “break the secrecy over complex criminal conduct” by turning “each accused against the other” to accelerate case turnover.  Brazil’s judicial system has been able to secure the legitimacy of their investigations by remaining transparent and objective throughout all cases. However, there remains talk of reform and further changes to the judicial structure. Judge Sergio Moro spoke of the need for significant contribution from Congress and the executive branch to improve laws for corruption prevention, but so far no action has occurred. Politicians are speaking of political reform and, according to a Jota poll, 67 percent of politicians favor reform. However, there is debate over who the reform will benefit: the fight against corruption or politicians hoping to escape judicial interrogation.

Image via wikimedia