Is the first instance really better?
Article in Folha de S.Paulo, on 26/05/2017, on the debate over ending special forum and judgment at first instance.
Translated from the original.
In the debate over ending privileged forum, there are premises that must be discussed in depth. There are authorities who have the prerogative of being tried by collegiate courts. The exact number in Brazil is not well calculated -the number seems excessive, since it ranges from the heads of the three Branches to municipal authorities, prosecutors and military personnel, among many other categories.
The provisions that confer this prerogative range from the Federal Constitution to sub-constitutional laws, forming a legislative tangle. There is a confusion that raises perplexities, which hinders understanding of the scope of this institute.
Is the prerogative an affront to equality? At its genesis, it exists to protect the function of the authority, in view of its position and its competences.
If an authority performs functions that are fundamental to society, nothing is fairer than that it be judged by a collegiate body, protected from arbitrariness. What is meant to be safeguarded is not the person, but his public functions. There is no inequality inherent to the institute, only distortions.
The debate is legitimate and should be deepened. No one ignores that public opinion is against such a “privilege.” The main reason guiding this rejection would be the idea that this “privilege” could be a cause of impunity for the political class and the beneficiaries of this institute.
It is a reflection of Lava Jato in the collective imagination: it is believed that the first instance of the Judiciary is Judge Sergio Moro. And it is imagined that the investigative forces of the whole country are those of the Curitiba task force. Undeniably, the results of Lava Jato are exuberant so far and have deserved recognition.
But the operation is far from representing the general rule of our Justice. It worked only because of the backing of the higher courts and an improvement of institutions, stemming from procedural errors previously committed.
It is enough to note that, without the privilege, “white-collar” criminals were not punished in Brazil before this operation. Multiple factors have always contributed to impunity, such as the scrapping of the police, lack of integration among oversight bodies and the slowness of the system – problems, as can be seen, unconnected with special forum privilege.
In our country, there is a terrible habit of promoting the “scorched earth” policy. It is time to rethink this practice toward a stricter control of the courts, taking the special forum model to a new extent.
Heads of Branches, ministers, judges, members of the Public Prosecution Service, the president and directors of the Central Bank — how can one deny the relevance of these offices for purposes of special forum? This debate, evidently, will have to be had for the next elections.
I do not believe in trying to reproduce the North American system, or even European models, in which there is no special forum privilege for public authorities.
In the USA, judges and prosecutors are elected or appointed, and most trials are by jury. In Europe, judges and prosecutors have a strong sense of hierarchy.
In Brazil, special forum privilege embodies the principles of efficiency and legal certainty. Without it, authorities would be exposed to the excessive discretion of thousands of judges and members of the Public Prosecution Service scattered across the country, to the interpretation of indeterminate concepts of what is just and unjust, which could make strategic decision-making unviable.
If this prerogative is a “jabuticaba” (something found only in Brazil), we must not forget that our institutions, in the radicality of the functional independence and constitutional guarantees they enjoy, are as well, especially the Public Prosecution Service and the judiciary. That alone already justifies prudence in the hierarchical escalation of oversight and controls.
FÁBIO MEDINA OSÓRIO , doctor in law from the Universidad Complutense de Madrid (Spain), is executive president of the International Institute of State Law Studies. He was Attorney General of Brazil from May to September 2016 (Temer government)