Isadora Fingermann Pisani
What is more harmful to a democracy, the endemic corruption soaking a whole political system or the collapse of civil and procedure rights? This is an equation that invades Brazilians’ minds in times of the “Car Wash” Operation.
The fight against corruption that has been taking place in Brazil since 2014 is a source of pride for the country and justifiably has became an example to other Latin American countries which share with Brazil the history of systemic corruption in political life and the culture of impunity regarding the so-called white collar crimes. It couldn’t be more different, since the investigation’s numbers are astounding: 1765 procedures, 289 people charged of whom 119 are already condemned to a sum of 1820 years of prison, and a request for reimbursement of approximately ten billion dollars.
What seems to go unnoticed by the international community, however, are the dire consequences for the Rule of Law that some practices endorsed by all instances of the Brazilian Judiciary in the course of the “Car Wash” Operation has been leaving behind.
Starting by the 227 infamous episodes when defendants were coercively brought to court in order to testify on facts that were charged against them. It was necessary that more than two hundred people were coercively forced to present evidence against themselves to Justice Gilmar Mendes, from Brazilian Supreme Court, acknowledged the unconstitutionality of the practice. For the Judge, the legal provision for coercively bringing someone to court is prior to 1988 Federal Constitution and disrespects the constitutional right of non-self-incrimination, also provided by the American Convention on Human Rights in its article 8, § 2, g, and §3.
The major concern is not with the 227 wealthy defendants coercively brought to court during corruption investigations in Brazil. Not because they are not entitled of basic civil rights, but because they are represented by the most combative lawyers of the country who will reletlessly stand for their rights. But if the use of force to compel investigated people to testify and produce evidence against themselve is now tolerated by Brazilian criminal judges, the fate of hundreds of thousands of defendants in everyday criminal cases will be tragic. The usual clientele of Brazilian criminal justice is not made up of Congressmen, Presidents, Governors and businessmen. They are young, black, poor and uneducated people, with no access to a quality defense. Under what circunstances will they be coerced to testify in the dark rooms of the Brazilian police stations?
The uncritical introduction by the Brazilian criminal judges of the US institution of the plea bargain must also be analyzed with caution, especially when one takes into account data from the Innocence Project pointing out that, in 11% of the 349 acquittals by DNA tests obtained by the organization, the defendant had previously confessed. According to the organization, innocent defendants confess to avoid longer sentences or death penalty. Even worse is the illegality of confessions obtained under pre-trial detention or under the threat of its decree, a normal practice in the course of the “Car Wash” Operation. Under these circumstances, there is no voluntariness, a required condition for the legality of the act.
Once again the biggest concern should not be the few hundred people investigated for corruption who decide – under qualified technical assistance – to confess to not remain imprisoned. The concern must lie in the hundreds of thousands of young people, mostly black and poor, who are taken daily by police to the Brazilian courts and prisons and who are held and convicted based on the testimony of the same police, who are known as corrupt and violent. If they are presented with the possibility of confessing and suppressing due process in order to spend less time in degrading prisons units, surely the overwhelming majority of the defendants will do so. Without due process, thousands of innocent people will end up behind bars.
In order to neutralize this debate, Brazilian Prosecutors tried to persuade society that abusive and exceptional rules were necessary to fight and dismantle systemic corruption in the country, but would never be valid for other daily criminal proceedings. It is not true. All legislative changes proposed so far with the support of “Car Wash” Operation’s precedents would, if approved, affect any crime. Fortunately, civil society succeeded in overcoming all attempts to do so in the Brazilian Congress.
Fighting corruption is necessary. The scope of criminal law on the so-called white-collar crimes came late and deserves to be celebrated. However, these advances cannot come at the price of scrapping fundamental rights, especially when taking into account the dimensions of Brazilian criminal justice. There is no impunity in a country with more than 700,000 inmates.
The international community must be alert because if due process is damaged during this process in Latin America’s largest democracy, perhaps the consequences to a region of the globe that historically flirts with authoritarianism are irreversible.
 Artigo 260 da Lei n. 3689/1941 (Código de Processo Penal Brasileiro).
 STF, ADPF 395 e ADPF 444, decisão liminar de 18/12/2017.
Isadora Fingermann Pisani is an expert on criminal justice, MPP candidate at Georgetown University