A Mixture of Scandals
Article on the mix of scandals and the preference for deals over due process in contemporary investigations, Folha de S. Paulo, 2019.
Translated from the original.
The central characteristic of proceedings and investigations in this contemporary era of real-time communication is to cause immediate and irreversible political damage to their targets. Not for nothing, including in Comparative Law, many prefer agreements over due process, insofar as facing a hard and long battle in the courts is already a defeat of gigantic proportions, in terms of image.
It is surprising that several criminal lawyers, many with wide experience in dealing with the media and the courts, reject the possibility of private autonomy of the parties in criminal agreements, even knowing the hardships inherent in investigations and proceedings. One of the arguments would be the supposed injustice of the North American model, which they usually invoke without any statistical basis. Who guarantees that there are injustices in the agreements entered into in that country? How to gauge whether or not there is arbitrariness in an agreement?
The so-called “Criminal Law of the poor,” which mostly affects Black people, the excluded, and immigrants in the United States, is a consequence of other factors associated with inequality.
Certainly, violent crime was never directly linked to businesspeople, nor to the “white-collar” elite. They are not the ones who commit robbery-murders, robberies, thefts, and even homicides on a large scale. However, the American system is emblematic in reaching the upper floor as well, and nobody talks about that. The fight against corruption, tax evasion, and white-collar offenses is tough not only in the US, but also in Europe.
In Brazil, in this same context in which anti-corruption measures drawn up by the new government are criticized, we live in a curious time in which the media have at their disposal an arsenal of scandals to report. The BNDES black box can now be opened, a unique opportunity.
There is an endless series of problems to decipher from the plea bargains that are coming to light. The elected government has already shown willingness to send consistent anti-corruption bills to Congress and will need political coordination to pass them.
It is in this scenario that an event involving one of the president’s sons receives, nevertheless, disproportionate prominence in the media. The distribution of space devoted to events is a matter of discretionary choices by the outlets, and should be taken into account as a parameter for each one’s strategies.
No one is immune from criticism, much less exempt from being the target of oversight. It should be noted, however, that the senator in question is not a member of the elected government, nor a candidate to preside over any legislative chamber. Compared with other figures, the senator has received intensive treatment from the media.
Flávio Bolsonaro suffers a public lynching in the media as if he were a candidate for a position of high relevance in the government. In my view, he is a victim of an error by the STF which, hesitantly, has been wavering on the important guarantee of special forum for holders of public office. That is, at present, a senator or a minister may even be investigated at first instance, or in a court other than their natural forum.
That is what the STF endorsed by deciding to hollow out this prerogative, as if it were a privilege and not a guarantee inherent in the office. A legal and political error that perhaps the full court should correct. Under the current guidance, it will indeed be possible for ministers, federal deputies and senators to be investigated and even prosecuted by first-instance authorities.
Fábio Medina Osório, lawyer and former minister of the Office of the Attorney General of the Union