The abuses of Car Wash

By FÁBIO MEDINA OSÓRIO — Lawyer, former Attorney General of Brazil (AGU)

The website The Intercept brought to light, by means of unlawful evidence, a discussion about possible abuses in Operation Lava Jato in Brazil. It is certain that the use of that evidence to support proceedings or judicial and administrative censure against magistrates, members of the Public Prosecution Service or police authorities should not be encouraged under any circumstances. Such a situation would foster the future action of hackers in committing similar crimes, which would be logically unacceptable. It would strengthen digital militias invading the privacy of public authorities as a technique for obtaining unlawful evidence, for the purpose of laying bare police or judicial operations.

Certainly a precedent of this nature would be incompatible with a Democratic Rule of Law. Nevertheless, it is possible to discuss, in each specific case, methods for validating such evidence by abstracting from the concept of unlawful evidence and treating it as indications. This is because any crimes or administrative offenses ascertained from other evidence may be punished, in comparison with evidence and indications. And, if there is evidence independent of the unlawful evidence, then obviously the punishments or censures may be imposed.

In any event, in a democracy, authorities are also judged before public opinion, which is the source of legitimacy of the power of public agents. Society must evaluate its representatives. And, in this scenario, freedom of the press and the credibility of the information it publishes and discusses with society must be strengthened. In this context, many of the dialogues revealed by the aforementioned website and by other outlets reveal unacceptable stances by public agents, including evidence forged to harm rights of defense, not to mention the oppressive attempt to bleed companies and accused persons dry as if they were targets devoid of rights.

Preserving the adversarial principle and procedural equality are pillars of a Democratic Rule of Law. Obviously, some conversations between magistrates and members of the Public Prosecution Service are normal, are part of the procedural game and do not always amount to a breach of the adversarial principle. However, inventing nonexistent examinations of witnesses and contemplating their false re-examination is, evidently, ethically reprehensible conduct.

One of the most common abuses was the criminal leaking of information to media outlets under the pretext of using a strategy to deconstruct the image of persons investigated in police or Public Prosecution Service operations. Such spurious procedure resulted from an entrenched conception of the media as a parallel tribunal for the moral judgment of the accused and for pressure on the judiciary.

Thus, investigators tossed the names of their targets to the media in order to observe their movements by means of possible wiretaps or other methods invasive of privacy. It happens that, often, such targets would be innocent people, whose reputations would come to be irremediably tarnished by cowardly attacks in the media. In this way, the accusatory strategy aimed at destroying reputations outside the procedural setting and entirely beyond the Judiciary.

Another abuse already observed was the publication in the media of the names of accused persons and defendants in cases under seal. This situation has already occurred on the website of the Public Prosecution Service itself, but also through criminal and selective leaks to press organs, as stated before. Moreover, there were unlawful disclosures of the names of people involved in atypical operations as if they were participating in criminal operations, all with the aim of tarnishing their reputations.

As is known, an atypical operation is not to be confused with something illegal. This modus operandi of many members of the Public Prosecution Service was aimed only at causing moral and material damage and imposing a punishment outside the Judiciary on people whom the oversight institution considered lawbreakers or too close to their targets. They were formulas of “do-it-yourself” justice. Thus, the authorities became agents not of the law, but of their individual wills.

As can be seen, in many actions of the Federal Public Prosecution Service, in Lava Jato, there was a distortion of the principle of functional independence, which proved to be a hallmark of arbitrariness. Investigations based on plea statements devoid of even the minimum element of corroboration were part of this panorama, authorizing one to imagine that many accounts could even be directed at targets chosen by the authorities.

The National Council of the Public Prosecution Service itself is investigating possibly targeted plea deals in the Car Wash (Lava Jato) operation in Rio de Janeiro. Undoubtedly, many improvements are under way in the field of controls and oversight in Brazil, and a fundamental role in this revitalization of the Public Prosecution Service has been played by the current Prosecutor General of the Republic, who has shown a strong commitment to the democratic ideal and to the defense of fundamental rights, in addition to the firm fight against corruption.