The challenge of the Public Prosecution Service
Article in O Globo, of 18/03/2016, on the role of the Public Prosecution Service in Operation Lava Jato and in combating corruption.
Translated from the original.
Operation Car Wash is considered an international benchmark in combating corruption, with developments throughout Brazil and abroad. Its name, as is known, derives from the use of a network of gas stations in Brasília to move illicit funds belonging to one of the criminal organizations involved, from which extremely sophisticated ramifications emerged.
In the context of an investigation of this size, information emerges that leads to unlawful acts of the most diverse natures and distinct competences and responsibilities. For criminal actions, jurisdiction was fixed in the 13th Federal Court of Curitiba (PR), where Judge Sérgio Moro sits, but there are other actions which, dealing with related facts, may proceed in different federal courts in Maranhão, Rio de Janeiro, and São Paulo, not to mention the jurisdiction of the state courts.
It is certain that the Public Prosecution Service will need to organize national action, not only with exchange of information and coordination of strategies, but to strengthen the principle of unity and the cohesion of its members. For example, if the members of the MPF have specific powers to act in the investigation of a case that, from another angle, is also being investigated by the MP/SP, it is logical that these institutions should talk to each other.
It is not possible for members of one branch of the MP to act without the knowledge or endorsement of another, getting in each other's way, or undermining medium- or long-term strategies. Coordinating their respective actions is the great challenge. In the eyes of society, the MP is one, all of it funded by taxpayers. It is time to rethink certain fragmented and isolated actions within the institution, when volatile scenarios of great impact on the interests of the Brazilian nation are at stake.
The Attorney General of the Republic is the head of the Public Prosecution Service of the Union, but, beyond that, presides over the National Council of the Public Prosecution Service and in this collegiate body may seek a space of greater consensus and building of institutional dialogue. Another field conducive to such building is the National College of Attorneys General of the Public Prosecution Services of the States and the Union, where the national leaders of all branches of the Brazilian Public Prosecution Service are present.
What is certain is that, in these mega-cases, which attack large corrupt and corrupting structures, in which the evidence is deeply interwoven and interconnected, there is no room for action without interinstitutional planning. The intelligence of the punitive system requires that the oversight institutions demonstrate prosecutorial rationality, legal certainty and organized coercion in their actions and investigations.
In addition to these considerations, regarding the unity of the Brazilian MP, one must add the need to observe also a growing dialogue on the importance of qualified exchange of information with other external institutions, such as the CGU, courts of accounts, independent administrative authorities, police forces, among others. In this way, the bodies in charge of repressing offenses against public administrations, the economic order, the capital markets and the national financial system will be able to articulate punitive public policies in a coordinated and intelligent manner.
The citizen, who pays his taxes, cannot be left at the mercy of isolated islands within a State fragmented by institutional actions permeated by ineffective planning initiatives, or driven by vanity or by purposes other than those that respect the primary public interest.
The principles of administrative impersonality, efficiency and legality must guide the action of all organs of the Brazilian State in combating offenses committed to the detriment of society's interest. The interdependence of the spheres points to this new framework of punitive intelligence as a model for institutions to act in an increasingly cohesive and integrated manner in pursuit of protecting the higher values of the legal order.
Fábio Medina Osório is president of the International Institute of State Law Studies