Medina Osório interviewed by the ADPF portal, the entity that represents Federal Police chiefs

Translated from the original.

Fábio Medina Osório gave an exclusive interview to the communications team of the Association of Federal Police Chiefs. On that occasion, Medina Osório addressed aspects of Brazil’s current socio-political reality, the crisis of probity and trust, and the paths the country must take to reach a new ethical level. Watch the full interview below:

INTERVIEW

Interview with jurist Fabio Medina Osório

“The Federal Police is an institution that does not belong to a government, much less to a party, but to Brazilian society”

ADPF From the Newsroom

Photo: Reprodução

Medina Osório is a lawyer with a strong practice in the areas of administrative probity, criminal law, administrative sanctioning law and anti-corruption laws. He was deputy secretary of justice and public security in Rio Grande do Sul in the Germano Rigotto government (2003-2005), and was a member of the Public Prosecution Service of Rio Grande do Sul (December 1991 to January 2006 – first place in the entrance examination), having resigned to practice law. This past Monday, 2 May, he took part in a hearing of the Special Impeachment Committee in the Federal Senate, as a jurist invited by the opposition, in the case against President Dilma Roussef. His speech was striking and caused enormous repercussions on social media and in the press, when he stressed that the government's strategy was “criminal,” as it tries to use the administrative machinery to spread the idea that there is a coup d'état in Brazil. Medina Osório was praised by the Senators for his firm, lucid and courageous speech. Let us see some of his opinions on Operation Car Wash and the fight against corruption.

WHAT IS CORRUPTION AND HOW CAN THE FIGHT AGAINST IT BE IMPROVED?

Corruption has been approached from various angles: the philosophical, the sociological, the historical and the legal, the latter being analyzable through multiple branches of law. It can be defined – from the sociological perspective – as the use of public prerogatives to obtain private benefits. It is a very broad definition, but one used by transnational organizations such as the World Bank or the International Monetary Fund. It is also possible to say that corruption refers to the corrupt person and the corrupter and that it raises an abuse of position: the violation of positional duties to obtain illegitimate extra-positional benefits. When we descend to the legal terrain, these concepts gain, or should gain, concreteness. Then the criminal laws, the administrative improbity law and the corporate anti-corruption law, among others, come into play. And each law will have its own typology, its peculiarities and its form of application.

It is important to shed light on corrupt and corrupting practices, betting above all on prevention. Strengthening transparent, efficient, meritocratic environments, with a valued civil service, is what improves the quality of decision-making. As for oversight, there is no doubt that the autonomy of the oversight institutions must be restored, fostering independence and responsibility, in addition to operational capacity. Those who have neither resources nor structure can never fight corruption.

YOU ARE CONSIDERED THE GREATEST REFERENCE IN BRAZIL ON ADMINISTRATIVE PROBITY AND THE THEORY OF PUBLIC CORRUPTION. YOUR CLASSIC WORK, ADMINISTRATIVE SANCTIONING LAW, FIRST PUBLISHED IN 1999, IS ALREADY IN ITS FIFTH EDITION. ANOTHER REFERENCE WORK IS THE THEORY OF ADMINISTRATIVE IMPROBITY, YOUR DOCTORAL THESIS. YOUR WORKS HAVE GUIDED THE CASE LAW OF THE HIGHER COURTS IN FORMING NUMEROUS CONSTITUTIONAL GUARANTEES. IS BRAZIL GOING THROUGH A MOMENT OF SETBACK IN FUNDAMENTAL RIGHTS, UNDER THE PRETEXT OF FIGHTING CORRUPTION?

The country is going through a moment of great social participation, and this is happening all over the world. No authority is legitimized merely by office, but by the quality of its interventions and decision-making processes. It is also necessary to display transparency and be accountable to public opinion. We live in the Digital Age. Guarantees have been reconfigured; they are no longer the same. The right to privacy in the twenty-first century does not have absolute force; it is greatly affected by contemporary technologies. We live in times of cyberterrorism and digital law. Certainly, the fundamental rights related to due process will never be abandoned, since they are historic achievements. They will only be constantly adapted to the cultural changes of civilization. Brazil is going through a very intense moment, in which the scope of numerous guarantees is being discussed in light of social needs, and this is important.

When the STF said that a collegiate decision of a court can already be enforced immediately and produce effects, authorizing arrests, it was merely aligning itself with the case law of the European Courts and with the comparative law of developed countries. There was a true “free-for-all” of dilatory appeals preventing legitimate arrests grounded on judgments already issued by courts.

Plea cooperation agreements are another legitimate instrument of investigation, on which I have already spoken on several occasions. Their regulation carries intrinsic objective limits, which must be worked on. When it is said that an authority may take a plea, what is always expected is not the protection of a corporate interest, nor the exclusivity of a function, but rather the safeguarding of the primary public interest and the protection of society.

CAN WE SAY THAT CAR WASH IS A SUCCESS CASE?

Certainly, Lavajato is already an operation with a positive worldwide impact, since it has been bringing about an authentic “ethical cleansing” in Brazil. This Operation must be looked at more closely, because it reflects something even bigger: a change of paradigms in the country’s public life. The depth with which it has reached the foundations of Brazil’s business, political and institutional reality made Lavajato an unprecedented historical process. For these reasons alone, it would already be a case of enormous success, representing a new stage for the oversight institutions, especially the Federal Police, the Public Prosecution Service and the Judiciary.

Any operation of this magnitude, however, is subject to challenge, and that is the work of the lawyers for those investigated and accused, whose prerogatives and rights must be preserved. It is for the authorities to stay alert, constantly improving their instruments and, above all, avoiding nullities and fighting impunity. Each one has his role. Society wants results, and it is for the Judiciary to deliver adjudication after due process. Therefore, investigative and procedural work must be highly qualified in order to identify those truly responsible for the wrongdoing, without any deviation from the course.

Allowing interference in Car Wash (Lava Jato), to favor those involved, is something Brazilian society would never tolerate.

WHAT IS THE ROLE OF THE FEDERAL POLICE IN THE FUTURE OF CAR WASH?

The Federal Police is an institution that does not belong to a Government, much less to a Party, but to Brazilian society. The Federal Executive Branch – with the new Government on the horizon – should bet on strengthening the Lava Jato task force, in order to earn the legitimacy of its mandate with the population. Lava Jato, at present, embodies the hope of millions of Brazilians for the renewal of politics and ethics in the country.

The Federal Police certainly play an essential leading role in Car Wash, since, besides technical quality, it is their operational robustness that allows the Public Prosecution Service to do its work before the Judiciary. Investigations must be conducted by the Federal Police with impartiality, autonomy and technical quality. Having a working structure is a necessary condition for the performance of their mission.