>> Eduardo Soares: One example
of corruption case involving a
former Brazilian president was a
criminal conviction confirmed
by the superior courts.
All decisions were unknown
by the Federal Supreme Court,
apparently for the lack of
jurisdiction of the tribe war.
And ultimately, the most
financially resourceful a
defendant is, the more
he or she has access
to the many legal
maneuvers available during a
criminal case.
The idea to the later conclusion
of the case for as much
as time enforcement to the
statute of limitation was.
And the person goes unpunished.
If the Federal Supreme Court
changed its understanding
regarding when a person -- when
a convicted person should be --
finally be incarcerated
and serve his or her time.
To discuss these issues, the
Law Library has invited this
distinguished -- a
distinguished panel of guests.
Mr. Leonardo Augusto de
Andrade Cezar dos Santos,
a public prosecutor for the
State of Espirito Santo,
who holds a law degree from
the Catholic University
of El Salvador and a
master's degree in corruption
and the rule of law from
the University of Salamanca.
He is currently doing his
PhD thesis on the rule of law
and global governance, also at
the University of Salamanca.
Mr. Santos was a
visiting researcher
at the Federal Judicial Center
in Washington D.C. in 2016.
And he's a member
of the International
Association of Prosecutors.
Mr. Henrique de Almeida Freire
Gonçalves, a public defender
for the State of Parana,
who holds a law degree
from the Pontifical Catholic
University of Rio de Janeiro
and a master's degree
in constitutional law
through the Center
[inaudible] Brazil.
Mr. Goncalves is a specialist
in [inaudible] criminal law,
[inaudible], and a
specialist in public law
at the University
of Veiga de Almeida.
And finally, Mr. [inaudible]
Fausto Martin De Sanctis,
a federal appellate judge
at the Federal Regional
Tribunal for the Third Region.
De Sanctis graduating in law
from the Center [foreign
language spoken] is a specialist
in civil procedural law
the University of Brazil,
has a PhD in criminal law from
the University of Sao Paulo,
and is a professor and the
University of Saint Jude,
and the National Institute
of Rhetoric Studies.
He specialize in legislation
to combat [inaudible]
and white collar crimes
and has written many books
on the subject, which can
be found in the collection
of the Law Library of Congress.
This simplified diagram
shows the design
of the Brazilian judiciary
for a criminal case.
At the State level on the
left side of the diagram,
a criminal case starts
in the Trial Courts.
Appeals then are heard by the
Justice Tribunals of the states,
and depending on the subject
matter being appealed,
the case will go either to the
Superior Tribunal of Justice
or the Federal Supreme Court.
On the right-hand side at the
federal level, the State starts
at the Federal Trial Courts.
Appeals are heard by the
Federal Regional Tribunals
and as a last resort, reach
the Federal Supreme Court.
The legal remedies of criminal
case, general speaking,
includes appeals and embargos.
According to the Code of
Criminal Procedure, an appeal,
which in part as we call
[foreign language spoken],
may be filed within five days
of final decisions on conviction
or acquittal issued by
a Trial Court judge.
Appeal may be filed
either in relation
to the entire court decision
or in relation to part of it.
[Inaudible] embargos,
or [foreign language spoken]
may be imposed, again,
decisions made by the Tribunals,
the Chambers of Panels,
within two days from
that publication,
where there is an ambiguity,
obscurity, contradiction,
or omission in the decision.
Appeals and embargos,
[foreign language spoken],
I'm just emphasizing how
we say it in Portugal
because it may sound
like the same.
What is an appeal?
What's an embargo?
That's why to make it perfectly
clear what we are talking
about in this case, are judged
by Tribunals of Justice,
their chambers or panels,
according to jurisdiction
established in the laws
of judicial organization.
So, after all the remedies
at the tribunals
have been exhausted,
there is the possibility of
finding an extraordinary appeal
with the Federal Supreme
Court and a special appeal
with the Superior
Tribunal of Justice.
From the moment of filing such
an appeal, it is no longer
to possible -- no
longer possible
to discuss perlative questions
or the defendant's guilt,
and no evidence will be
reexamined in accordance
with decision number 279 of
the Federal Supreme Court
and decision number seven of the
Superior Tribunal of Justice.
I now turn the presentation
over to Mr. Santos,
who will discuss the enforcement
of convictions and these --
and the issues of impunity.
Welcome, Mr. Santos.
Why does it seem so difficult
to enforce a criminal
conviction in Brazil?
>> Mr. Leonardo Augusto de
Andrade Cezar dos Santos:
Good afternoon, everybody.
Thank you for the
opportunity to be here.
For me, it's a great
pleasure to bring legislation
on with my colleagues
to the American people.
First of all, we have to
bear in mind that in Brazil,
there is a fundamental
premise in the penal system.
This premise says that the State
[inaudible] that oppresses it.
In a judicial constitutional
system,
fundamental rights are the
lighthouse of public policies.
Nevertheless, courts are still
deciding [inaudible], and yet,
we continue to be under military
regime, subject to the will
of the authority that do
not respect human rights.
Under this premise,
many steps [inaudible]
and postpone a final decision,
including no peace [inaudible].
Moreover, this premise
has led to the creation
of a penal system designed
to curb the punitive
power of history.
One way to diminish
this punitive power was
to create difficult to
enforce a criminal conviction,
whether with more
lenient laws or, mainly,
through judicial decisions.
People adapt in the system,
and we need to provide
answers so there's a society.
The judiciary has appropriate
some legislative activity
and made decisions that
sounds more like laws
that regulate many
aspect of life,
which should have
been established
through the legislative process.
Because of this judicial
activism and its inclination
to the premise that the State,
this inclination of evil
that oppress the citizen in this
era has become more powerful
than ever as an instrument
to avoid enforcement
of criminal convictions.
>> Eduardo Soares:
And let me ask you,
is there an impunity
problem in the country?
>> Mr. Leonardo Augusto de
Andrade Cezar dos Santos:
And that's a great question
because impunity is one
of the biggest problems
in [inaudible] all
the halls [inaudible].
There should be a strong
response for these things.
In Brazil, as explained by
the recent published Atlas
of the organization
of the Institute
of Applied Economic
Research, less than 10%
of the criminal investigations
are concluded.
In the universe, where
all the legal maneuvers
to avoid enforcement of a
[inaudible] collectivist coupled
with the lack of
structure required
for law enforcement
officials to work efficiently,
impunity is almost a certainty.
As a result, there is a decrease
in the credibility of the State.
And if they -- it is
possible to see an increase
in the economical and even
political power of criminals.
Unfortunately, these are all
ingredients for a chaos recipe.
And now, let's talk a little
bit about the monopoly
of the legitimated violence.
The states monopolize
the legitimated violence.
This quote, said by a German
sociologist Max Weber,
summarize how the State has
[inaudible] created the violence
on people that used to solve
conflicts by themselves.
Violence [inaudible] are now
carried out through a loss
of democratic [inaudible].
The expropriation of conflicts
makes the State responsible
for the social classification.
To keep the society [inaudible]
requires a strong firm conduct
because violence is just
resistance in the society.
Although, it was
defined by the State
with the consensus of the law.
In order to legitimately
fulfill its mission,
the State has created
this situation
and more [inaudible] effectively
organized to do this,
and the promise made by many
[inaudible] institutions
[inaudible] among other
things, the safety
and welfare of the population.
It is the effectiveness
to the human
of the promise social facilities
that gives [inaudible] built
in confidence to the official
source of [inaudible].
The most important institution
in this capacity is [inaudible],
and the way to make
justice is [inaudible].
In criminal case, for
those citizens who fail
to fulfill their
duties and [inaudible],
the private [inaudible] also
expropriated and sublimated
with corporal penalties.
Before when a crime occurred,
the Father of the victim's
family, by their own hands,
are [inaudible] the evil
caused by the offense.
In a given moment, the necessity
to diminish the self-wardenship
[inaudible] roles,
which lead to the improvement
of their social peacemaking,
and consequently,
more humane methods
to solve criminal [inaudible].
When they State monopolize
the social [inaudible]
to the jurisdiction, it provided
an official representative
to resolve the conflicts
with the exclusive power
to make the use of force
to achieve the resolution.
All of the State legislative
instruments can use force
in this case.
And it, again, dependents
of citizens
or physical punishments.
Over time the primitive
regularization [inaudible] laws
and institutions have
developed and ended
up almost abolish
the death penalty
or other cruel forms
of punishment.
Maybe only need deprivation as
the role, possible combination.
Before the American French
Revolutions, [inaudible] came
from defined or had
a hereditary origin.
With the advent of democracy,
the information starts
to come from the people.
This phenomenon has deeply
changed the information
[inaudible] State power.
From this point on,
the existence
of the State power depends
on the people's acquiescence.
Thus, in relation to
expropriate the conflict
and monopolized violence,
it was previously
accessed by [inaudible].
It was required.
The State changed the way
of exercising violence,
then expropriated the conflict.
All of the method
accepted by the people,
[inaudible] representative and
legislative form of institution.
[Inaudible] could be an antidote
against [inaudible] exercise
of the coercive power
of the State.
The premise that I just
discussed is exposed the
Brazilian criminal
system and their attempt
to curb punitive
power of [inaudible].
In Brazil, they attempt
to curb the exercise
of State violence has
reached extreme levels.
Every day that pass, we have
less possibility to find a crime
that law prescribes
a custodial sentence.
The criminal case is thought --
the State violence is exercised
through punitive power.
There is the State has the right
to punish those who
practice crimes.
Some may say that, in fact,
there is a duty of the State
to punish those who
commit crimes.
Other than these
questions, within the limits
of the popular understanding,
consider the State punishment
as evil mostly because in
the recent past Brazil live
down the State issue or
abuse of power [inaudible].
The sanction, therefore,
of an individualist point
of view is rejected
in an attempt
to avoid legal consequences
caused by the misconduct.
In other words, there
is an attempt
to avoid the responsibility
for criminal actions.
Thus, literally [inaudible]
files [inaudible]
in its punitive power are
always from [inaudible],
which of course both because
of the majority charge
of the concept of violence.
And because of the false premise
that State violence
is arbitrary.
Look into the present
with the lens of the past,
and in the Brazilian
face with the lens
of the military dictatorship
period.
Hence, there is an
effective fundamental premise
that there is a duty to
curb the punitive power
of this [inaudible].
With this fundamental premise,
many procedure to depend on --
procedure entanglements are
allowed to make it possible
to postpone a final
decision you can obtain.
An example for the postponement
of criminal decision has to do
with the beginning
of imprisonment
in the Brazilian
criminal system.
Recently, the New Zealand
federal Supreme Court has
decided that for a
person to be incarcerated
and do his time following
a criminal conviction
in trial court in the
consummation of the [inaudible]
in this [inaudible]
court, it's also necessary
to have a final decision
issued by the Supreme Court.
In other words, it is required
that all Brazilian criminal
case be judged by the level
of justice that composed
the law.
Therefore, it's enough for
criminals to contact councils
to appeal until the case
reach the Supreme Court.
As a consequence, a criminal
case falls into a court level
and must necessarily be
analyzed by the leverages.
This decision has
many consequences.
First, it is almost impossible
to comply with the decision
of the Federal Supreme Court.
Brazil is a continental
country, and there are millions
of communities, ones at all
levels of the judiciary.
With [inaudible], the National
Justice Council found out that
in 2008, there were 9.1
million criminal process
running [inaudible].
The decision of the Federal
Supreme Court requires
that the [inaudible] justice
analyze all these process,
which is simply not doable.
According to alleged
legal principle,
[inaudible] impossible
[inaudible].
No one is bound to
do the impossible.
Therefore, the Supreme Court has
issued an unachievable command,
since this number of process
is impossible to be judged
by [inaudible] people.
It's important for all the
lessons of the Brazilian
to [inaudible] justice.
It's not justice, but qualified
and manifest injustice.
This the nature [inaudible]
criminal case
because of the distance between
the crime in the country,
this form of [inaudible] of
the victims to the people,
who needed be defended.
In all these case, there
is a strong contribution
to describe the [inaudible]
activity of this.
Because in the [inaudible],
the delay makes the
process become an idea
of why they cry for justice.
As previously mentioned, in
expropriating private conflict,
the State must solve
them by itself.
To solve these conflicts,
it's important
to provide a strong response,
in order to give credibility
to the accent of this.
The way they decide the criminal
issues makes this judiciary
system become less used because
of the lack of precedent.
It might force that violence
through the use of force
by the people without
following the law.
As a matter of fact, it is
already happening in communities
that are dominated
by drug dealers.
This harmful situation
affects also the [inaudible].
The rule of law, society
must have a law system
that gives the people
security and predictability.
In other words, you live in
a community ruled by the law,
it is important that
conflicts are resolved
and that the resolution
you make the restitution
that the people can expect
in all the outcome
of future conflict.
There is no better example
to have as [inaudible].
Through the nature conflicts,
mostly criminal ones,
effect directly this
situation predictability.
Society does not know what
will happen in the future.
It does not know if past
conflicts will actually resolve.
The foundation of law, since
Roman law, are based on security
through predictability.
Without them both, nobody
can expect the existence
of a concrete and
active legal system.
I'd like [inaudible], this delay
is harmful to the understanding.
A [inaudible] in itself is a
heavy burden, for instance,
but the [inaudible], therefore,
to postpone the decision
of a criminal case, which
is postponed the defendant's
innocence [inaudible] a
possible conviction takes hold
of both the defendant and his
or her friends and family.
This prevents everyone
involved from living their lives
as before, as the stain
of a criminal prosecution
prevents plans or projects
from being made in the future,
given that a prison is
always itself on the horizon.
Moreover, there are
white collar crimes
and there's criminal
prosecution.
The prosecution of white
collar criminal case requires
for a long and detailed
investigation.
First, because of the complexity
and the difficulty
together [inaudible].
And second, because of the
political power these three
[inaudible] process.
In the majority of case,
white collar criminals
are almost always guilty,
and they most likely are not
able to prove their innocence.
Thus, the only way out for them
is to postpone the process,
plan to some [inaudible]
to be [inaudible] impunity
to have made example, the
resilient judiciary districts
that follow this pattern.
So, one more point that leads
to the judiciary display.
Notwithstanding this
[inaudible], there is light
at the end of them,
which makes us hopeful
that justice can be [inaudible].
Article 492(1)(e) one of
the criminal procedure code,
recently amended in
2019 is a way of light.
These are coauthored that
[inaudible] in the case
of sentencing, where
punishment equal to or greater
than 15 years of imprisonment.
The provisional execution of
this sentence must be determined
by the [inaudible]
with the issue
of an immediate arrest warrant,
thus avoiding the wrong role
[inaudible] reaching a final
decision by the Federal
Supreme Court
and an immediate
response to the society.
It's important to
highlight that [inaudible],
only felonies committed against
life acquired [inaudible].
So, paraphrasing Neil Armstrong,
this is one small step
for the rule of law but
a giant leap for justice.
Anyway, importantly, it seems
that [inaudible]
judicial criminal system,
a good criminal is
a free criminal.
Thank you, everyone.
>> Eduardo Soares:
Thank you, Mr. Santos.
Now we turn to Mr. Goncalves,
who will discuss the
same issues further
and from a different
perspective.
Welcome, Mr. Goncalves.
Let me ask you, what
is your perspective
on the general perception
that it's very difficult
to enforce a criminal
conviction in Brazil?
>> Mr. Henrique de
Almeida Freire Gonçalves:
Thank you, Mr. Soares.
It's a pleasure to be here.
I think that perception
is actually misguided.
I don't think that
it's that difficult
to enforce a criminal conviction
in Brazil in the common cases.
What happened is that
the media focuses
on the high profile cases
involving politicians
and large corruption schemes.
In those cases, [inaudible] in
Brazil have several privileges
that helps them to avoid the
closure of a criminal case.
So, and that's kind
of processes.
They gather more
attention from the media,
and thus the public have that
perception that in Brazil,
the rule is that
it's very difficult
to enforce a criminal conviction
in Brazil, where, statistically,
it's not that hard at all.
Those cases where there is --
I'm not denying that those cases
where criminal conviction
is hard to enforce exists.
They do exist, but they
are not, far from it.
>> Eduardo Soares: And
in regard to impunity,
do you think there's an
impunity problem in the country?
>> Mr. Henrique de Almeida
Freire Gonçalves: Actually,
I will agree with
the prosecutor here,
that there is an impunity
problem, if by impunity we mean
that there's a disparity between
the number of crimes committed
and the number of
people going to jail
for committing those crimes.
If that's the definition that we
embrace for impunity, then yes,
I do think that we have
a huge problem in Brazil.
While we do have a lot of people
behind bars, Brazil is one
of the largest prison
populations in the world.
When you make that
number proportional
to the total population
and take into account
that we have a really
high crime rate as well,
not just a high prison
rate, that large number
of prisoners is still very small
when compared to the number
of crimes that are committed.
So, this is a prison population
ranking from World Prison Brief.
As we can see, Brazil is the
third largest population --
[inaudible] prison
population in the world.
Based on this, some
people actually argue
that Brazil actually
have too many arrests,
not an impunity problem.
But this, I think,
it's a logical leap.
When it comes to Brazil,
using total numbers,
rankings can be misleading as it
happens with the United States
as well because Brazil is one
of the world's largest
population overall.
So, all of our total
numbers will rank high
in the world simply because
of the size of the population.
We have a large population,
so every kind
of total number will be large
in Brazil, whatever statistic
that -- what you want to use,
you have to use it
proportionally in Brazil.
So, in order to correctly assess
our problems, we have to look
at numbers adjusted
to the population.
As we can see, Brazil,
when those numbers are
already adjusted to population,
we rank really high when it
comes to prisoners' rate.
That is how many prisoners
we have per 100,000 people.
And -- but we are ranked even
higher, much higher, in fact,
when it comes to crime rates.
That is the number of crimes
committed by 100,000 people.
It is intuitive to
expect that the countries
with the most crime would
also be the countries
with the most prisoners,
but this is not the case.
If we call this this
discrepancy impunity problem,
then I would agree
that it does seem
that we have an impunity
problem in Brazil.
Although, we do have a
high number of prisoners,
this number is
disproportionately low
when compared to the
number of crimes committed.
So, for the purposes of this
discussion, we will assume
that Brazil does have
an impunity problem.
As Mr. Santos already
told us, our appeal system
in Brazil is very convoluted.
So, from those two propositions
that our appeal system is kind
of convoluted, and that we
do have an impunity problem
in Brazil, some people claim
that the Brazilian
criminal procedure law,
especially the maneuvers
available to defense,
is the cause or one
of the causes
for the impunity
problem in Brazil.
But this, I argue, is
another logical leap.
I'm not saying that the
Brazilian criminal procedure law
does not contribute to the
impunity problem at all.
I'm just saying that to me,
it seems that there
is not enough evidence
to support that claim.
Although, it isn't -- it
is possible to [inaudible]
in the legal case cases,
where the maneuvers
by the criminal defense
contributed decisively
to this -- to the statute of
limitations taking effect.
This is not what
usually happens.
So, here we have--
Here we have a graph that was
taken from investigation done
by a television network
in Brazil.
I believe that the main cause
for the impunity problem
in Brazil starts in
the investigation phase
that is previous to the
actual criminal processes
and the appeals.
There are many unsolved cases in
Brazil for a variety of reasons,
and this is an example.
A news website in Brazil decided
to monitor all the murder
investigations in one week
of 2017 in the State
of Rio de Janeiro.
In that week, there were
84 murders registered.
Two years later, from that
week, only one conviction
and one acquittal took place.
So, after two years, 82 of the
84 cases were not judged yet.
Only 22 of those 84
investigations were finished,
73.8% were still ongoing.
And out of those 22,
that's the vast minority
of the total cases, in only
twenty cases the police was able
to identify a main suspect.
So, in two of those
cases, they will --
they were closed before
the police was able
to identify a suspect at all.
So, in those -- we're talking
about murder cases here.
So, we know that
a crime happened.
We know that there is
an author to that crime,
but we can't solve those crimes.
The police can't solve -- since
unable to identify the suspect.
This is not very complex cases.
Those are cases that we know
that a crime took place,
and still the police is not
able to properly investigate it.
So, when it comes
to financial crimes,
the situation gets even worse.
This is a graph taken from a
research by a federal prosecutor
in Brazil about white
collar crimes.
She--
She investigated -- she followed
682 cases of white collar crimes
through a period of seven years.
In that research, after seven
years, she found out that out of
that 682 cases, 682
investigations,
there were only five
convictions.
And moreover, only 15 of those
682 cases actually became a
criminal process, with the
prosecution not finding enough
evidence to proceed
in another 62 cases.
And more than 600 cases still
under investigation
seven years later.
So, those cases as well never
became a criminal process,
at least not in those
seven years.
So, it's not the
criminal appeals
that are holding these cases
from becoming criminal
processes.
It is the lack of
resources directed
to the investigation phases.
So, even if we look only at the
allegations that had some kind
of conclusion, whether
for a criminal process
or the prosecution thinking
that was not enough evidence
to proceed, we see a huge
disparity between white collar
and blue collar crimes.
On the left here, we see up in
Pernambuco State the difference
between the cases where the
prosecution did not find enough
evidence to proceed in yellow.
We can see that the
white collar crimes,
the proportion's much bigger
than when all crimes
are considered.
And the same thing
happens in Parana States.
The orange -- the orange part
of the pie chart is the crimes
that the prosecution thought
that was not enough evidence
to proceed to a criminal case.
And in gray, we find that the --
those part of the pie sharp
where a natural criminal
process begin.
So, as we can see,
the vast majority
of white collar investigations
do not become a criminal process
at all.
And why do we see
such a disparity
between blue collar crimes
and white collar crimes?
I think there are several
possible explanations,
but I believe one of
the main reasons is
that white collar crimes can be
very complex and sophisticated.
As such, they can
require very complex
and sophisticated
investigations as well.
In Brazil, we do suffer
from a lack of resources
in criminal investigation.
So, that lack of resources
shows even more strongly
when we're dealing with
white collar crimes.
White collar crimes rarely
are caught red handed.
So, the investigation
of this kind
of crime is usually
more difficult
and require more man
hours from the police.
For the same reason,
these investigations
usually take much longer,
which can benefit the
white collar criminal due
to the aforementioned
statute of limitations.
So, to give you a
brief explanation
of the Brazilian statutes
of limitations, in Brazil,
there's a certain amount of time
that a criminal cases can go on,
and that's true for
all kinds of crime.
Article 109 of the Brazilian
Penal Code limits the time --
that time in six different ways
either three, four, eight, 12,
16, or twenty years depending
on the penalty for the crime.
But the maximum amount of time
in any crime can be
investigated is twenty years.
In Brazil, the maximum penalty
for any crime is thirty years.
There is no death penalty
or imprisonment for life,
as Mr. Santos already stated.
There are certain marks
that reset this statute
of limitations count.
So, in practice, it does happen
that between the commitment
of a crime and the end
of the criminal process,
more than twenty years
goes by without this --
the statute of limitations
taking effect.
An example is when the
prosecution presses charges,
and the judge accepts those
charges, the formal beginning
of the criminal process
in Brazil.
Within the commitment
of crime and the start
of the criminal process, the
statute of limitations taking
into account the maximum penalty
legally possible for the crime.
After that, it takes
into account the actual
penalty imposed by the court.
The statute of limitation is
probably the main reason why
criminal defenses try to
cause delays in processes.
Another reason is to
postpone imprisonment.
As in Brazil, the rule is that
until every appeal is decided,
the defendant will
not be arrested.
There are exceptions
to this rule, though.
For example, if the defendant
is threatening witnesses,
or there's a plausible
cause for concern
that the defendant will
keep committing crimes
if not imprisoned.
Or if there is a
cause for concern
that the defendant will try to
run away, like from the country
or get away from the authorities
if he's not in prison,
then he can be arrested
before the end of the
of the criminal process.
So, I'll give you one example
of how the defense
can delay the process.
And I'll call this the
declaration embargo loop.
As Mr. Soares already explained,
there is a type of appeal
in Brazil called
declaration embargo.
It can be used whenever
a judge or a court issues
in the decision to rectify
an obscurity, omission,
or prediction, or
to correct an error.
When a judge issues a sentence
convicting the defendant,
after the publication
of that sentence
in the Official Gazette --
and this is not immediate.
It takes a couple of
days for that to happen.
The defendant has two days to
file a declaration embargo.
After the declaration
embargo is filed,
the judge usually takes
some time to decide.
And once again, this
decision has to be published
in the Official Gazette.
This decision about the embargo,
about the sentence
can also be embargoed
but can also be subject
to a declaration embargo.
And so, that will
require a new decision.
And that new decision
can also be subject
to another declaration
embargo and so on.
So, that could go on forever.
Every time that the
declaration embargo is filed,
the time you have to
actually appeal the decision
so the State Court can make
a decision about it is reset.
So, you keep resetting
the time you have
to actually appeal the decision
when you do this, this maneuver.
And what can the judge do
if he's facing this
kind of situation?
The Criminal Procedure Code
in Brazil does not
provide an answer,
but the Civil Procedure Code
does have an answer to this.
The judge can consider
the embargo
as a clear delaying
maneuver and apply a fine.
After two embargoes are
considered as a delay maneuver,
the defendant cannot file a
third declaration embargo.
However, judges rarely do this.
And even if that
was not the case,
you can still use two delay
embargoes and face the fine,
which can be a small part --
price paid, especially
if the defendant has
financial resources
in order to delay the process.
There are other maneuvers
that the defenses can
do to delay the process.
Like using every
single appeal available,
and there are quite a few.
If you use every single day
available to file anything,
like appealing the decision
from the last possible day,
asking for the judge to
produce useless evidence,
like a witness --
witnesses that live abroad.
The judge can decide that -- not
to hear that witness, however,
but sometimes, there are people
that asked to hear a witness
that -- witnesses that
do not live in Brazil.
And that requires a very
long process to achieve.
So, so far, I have established
that from my point of view,
at least, the main reason why
we have an impunity problem
in Brazil is the
investigation phase,
not the appeals available
to the defense.
Report of crimes that actually
become a criminal process,
are a minority.
And then even -- and then
even smaller minority
when we are talking about
white collar crimes.
But what about the small part
of the reported crimes that gets
into the face where the
prosecution process charges?
Those the possible maneuvers
by the criminal defense,
like the example that I have
showed, play a large part
in the process delays.
First, the percentage of
processes that ends due
to the statute of limitation
taking effect is not that large,
as we can see from the
graphs that I have provided.
The graph above was taken from a
research study about corruption.
So, the numbers only take into
account white collar crimes.
The first graph shows that
about 10% of the criminal cases
about corruption ends
due to the statute
of limitations taking effect.
This graph is about one specific
State Court, which is the State
of [inaudible] was
a State Court.
But the numbers from
the other courts do not
differ significantly.
You must also take into account
that not all of the cases
that ended up because of the
statute of limitations had to do
with the defense stalling
or appealing too much.
As shown in this -- in the
second graph, in the processes
that ended due to the
statute of limitations,
it was not the defense took the
longer time with the process.
Usually, the prosecution
is the one
that is taking the
longest to do their part.
However, you must
also take into account
that when the defense is
acting to stall the process,
it demands that the judge and
the prosecution act more often,
adding to the time that
they'd have to spend in order
to make the process continue.
But this is not -- does not
change the fact that if judges
and prosecutors could act faster
-- and I'm not blaming judges
or prosecutors for this.
There's a lack of personnel
in every single stage
of the criminal investigation
in processing in Brazil.
But if they could act faster, in
many cases it could be avoided
that the case was
closed due to the statute
of limitations taking effect.
So, to end the presentation,
in Brazil criminal process
takes an average over two years
from the prosecution pressing
charges to the sentencing,
almost four years in the
case of State Courts.
In the High Courts, however,
over 90% of the Criminal Appeals
are over within one year of it.
I do not see any
evidence to suggest
that with the vast majority
of the cases it's the excessive
number of appeals available
that delays the processes.
Why then is there the general
perception that the problem lies
with the enforceability of
the criminal convictions?
As I already stated, in general,
the public in Brazil
have a perception
that Brazil does have
an impunity problem,
and that is actually correct.
At least, if you take
into consideration my
opinion about the subject.
But as for the cause of
the -- of this impunity,
I believe it lies with
the investigation.
Due to a lack of resources,
criminal investigations are done
in general poorly in Brazil.
Although, sometimes
leakages occur,
criminal investigations are
done in Brazil in secrecy.
So, the media and the general
public do not have access
to the investigations
as they are occurring.
The criminal process, on
the other hand, is public.
So, most of the attention and
the media coverage is directed
to the few high profile
cases that actually turn
into our criminal processes.
And the bottleneck
of the [inaudible]
for investigations
remain largely invisible
to the general public.
As the high profile cases
involve more complex
and sophisticated crimes,
the prosecution may have
to during the process makeup
for the poor investigation done
before the process has started.
There also leaves more gaps
in the prosecution claims
to be exploited by the defense
on those high profile cases.
Moreover, as I've
already stated,
often high profile cases
involve politicians.
In Brazil, legislators
creates a series
of questionable privileges
and immunities
to politicians facing
criminal charges.
Those high profile cases are
often the exception to the rule.
And they end up taking
much longer
than the regular
criminal process.
Due to the major media focus
on this kind of process,
the general public, knowing
that we face an impunity
problem generalize the available
information as the reason
for the -- for that problem.
Also, as we just saw,
it does take a few years
from the crime -- from the
time that crime is committed
and the actual enforcement
of a conviction.
That also may give the people
the impression that a person
that committed the crime
face no consequences at all.
Since the consequences take
place after a long time,
often after the crime
itself, is not the focus
of public attention, or even
have faded from public memory.
In conclusion, I think
that the main cause
for Brazil's impunity
problems, why --
with the criminal
investigation phase and not
with our appeal system.
That is what should be the focus
of any kind of reform that aims
at solving that problem.
>> Eduardo Soares: Thank you for
your comments, Mr. Goncalves.
Mr. De Sanctis will now
give some further insights
into this issues.
Welcome, Mr. De Sanctis.
Let me ask you directly, why
does it seem so difficult
to enforce a criminal
conviction in Brazil?
>> Mr. Fausto Martin De
Sanctis: Good afternoon.
I'd like to thank the
Law Library of Congress
for inviting me to this event.
This is an honor and joy to
participate in this conference.
Thank you, Eduardo
Soares, being our cohost.
I'm so glad to be here now.
So, thanks for your question.
Due to the developing
of bureaucratic criminal
appeals system based
on the junior doctrine
[inaudible] pretense
because of an excessive amount
of abuse, judicial activism
in the current revelation of
the statute of limitations,
which [inaudible] causing
criminal laws to be ineffective.
Organized, political, economic
crime has had a free space
in its efforts to
perpetuate criminal activity.
In an attempt to reverse the
situation, it's all changed
for many institutions and also
for some agencies to carry
out a great strategic effort
contributing to a more rational
and effective institutional
framework.
>> Eduardo Soares: Do you think
there's any punitive problem
in the country?
>> Mr. Fausto Martin De
Sanctis: So, when we look
at the treatment given to
economic or financial crimes
in comparison with
common crimes,
there is a popular feeling
and technical opinions
about the duality of
treatments present
in the Brazilians
justice system,
which invariably nullifies major
operation cases involving white
collar crimes and criminals.
Brazil, okay, has had the
eight Federal Constitution,
the last one was issued in
1988, due to a long period
of dictatorship, and then
many abuses oppressed during
that era, which usually means
representative [inaudible] the
purpose of the law, there has
been a declaration of the law
and in the importance
of respecting the law.
As a result, a constitution
of 1988 expressed
disfavor for the law.
That's why addresses
legal issues
and contains 250 articles
plus 114 articles included the
extenuatory provisions.
The Constitution
established rights and duties.
Its purpose is to
reflect the people's voice
through habeas data, popular
action, habeas corpus,
injunction write, writ
of mandamus included.
Another consequence of the
dictatorship here [inaudible]
and it appears it
[inaudible] at that time is
that fundamental principles
gain enormous strength.
And the Constitution has
been praised as a diploma
that should have as many
principles and rule as possible.
Next slide, please.
Are you talking about
the car wash case?
Car wash case is considered the
top of all corruption iceberg.
It initially involved
with Petrobras,
a mixed capital company,
and then Odebrecht,
a big private contractor,
and finally,
JBS a big food and
meat producer.
This case revealed the
big scheme of corruption
that also allowed
for the financial
and political campaigns
and the distortion
of the most important
two bidding principles
like equality [inaudible] and
demonstrated with [inaudible].
During the course of the case,
it was possible to, I think,
[inaudible] defense moves
[inaudible] this judicial
decisions, like with use of
habeas corpus and appeals
to get a favorable decision even
is taken by a single justice.
In this way, the
destruction of cases begins.
The arrest of the defendant
is following their conviction
demonstrated that the measures
taken by the Federal Police,
public prosecutor results,
and the federal judge
were appropriate,
showing that the country was
acting to correct its course.
The conclusion that it was
reached during the investigation
that perfectly firms that have
been deviated spurious payments
to many congressmen.
Let's be clear how
[inaudible] enveloped it was
in neglecting the actions of
these people, these groups were
in order to achieve
their objectives.
If revealed -- it revealed,
so far, money laundering
of approximately $3.5
billion and the 10 billion --
sorry, $1.7 billion
of kickbacks.
Unfortunately, now the car
wash case is at the risk
of being annulled due to single
or collective decision being
made as a Federal Supreme Court
in a continuous process of
reveal their own decisions,
although previously
they withheld.
Then next slide, please.
The current judicial issues
are now is the onus excessive
in the repetitive
litigation, lack of efficiency
in the decision-making process,
although good transparency,
lack of a rational
appeal system.
Since there is the abuse of
defense rights habeas corpus
against any single decision,
even from the [inaudible]
that are not in jail.
And we can -- I can code
our system in some way
in the inner apartheid
[inaudible].
Why? Because there
are special courts
for high level authorities.
If your politician
is not reelected,
there is a ping pong
effect that sends the case
to the first instance.
But if the politician is
reelected, the case returns
to the special court usually
is the Brazilian Supreme Court.
So, all this represents
this course scarce activity
of the judiciary,
which discouraged all
good actions taken
by law enforcement body
for fighting corruption.
Some attempts to rationalize
illegal systems include
simplification of
civil procedures,
reform of criminal
procedures, implementation
of electronic lawsuits, which
helps you to expedite procedures
and make it a little faster.
Despite this innovation, there
was no significant change
in their right to appeal with
the existing instruments.
Also, constitutional reforms
was made -- were made.
Some attempts to rationalize
the legal system based
on the Brazilian constitution
were creation the binding
precedent was introduced in 2004
at the Federal Supreme Court.
Certain decisions are binding
to the entire judiciary.
And now, we've established
our hybrid system called law
and civil law.
In Brazil now, we have with
a discretionary review.
Supreme Court only reviews our
case if it considers the case
to be relevant to the nation.
And [inaudible] for also,
there was the creation
of the National Council
of Justice
that sets unified standards,
goals to the judiciary,
unifying proceedings,
and the receipt
and the hearing complaints
against the member
or bodies of the judiciary.
Talking about the effectiveness
and the transparency,
it's important to summarize
the current situation
of the Brazilian judiciary
and [inaudible] mistreated
and the social control.
At the end of 2018, Brazil have
in all the judicial system
77.1 million cases pending.
The role of the National
Council of Justice appointed
to the Supreme Court was
open-ended judge ethical,
and the disciplinary proceedings
against judge can be generated
by the National Council of
Justices despite local courts,
internal affair investigations.
In Brazil, we have the live TV
broadcasting online portrait
of the judicial sessions.
So, the trial session of the
Brazilian Supreme Court is it --
has free access of the people,
which represented a new space
for public knowledge,
subjecting judicial decisions
to all kinds of pitch seasons.
It's a new space
with new critics.
Talking about [inaudible]
cases and their outcomes.
In coming, in almost all cases,
there was the use of individuals
to send money abroad by
foreign exchange dealers all the
[inaudible] to offshore
companies.
That's why you needed an
international cooperation.
Except, the fourth [inaudible]
mentioned mostly corruption
that was subjected to the
statute of limitations.
There was the unknown element
concern of all of them.
Here, I would like to take a
small look at the last two case,
car wash case, as a I expressed
above, is currently at the risk
of being annulled due to
the set of decisions made
by the Federal Supreme Court
that's understood by the plenary
on April 15th, last week.
That the case should
have started in Brasilia.
In addition, it's currently
being decided whether the
federal judge in the cases
involving former President Lula
was partial, as taping the
cellphone conversations
between the federal jury and
the prosecutors were allowed
to be used by the defense
to demonstrate the
judge's partiality.
The last case, combine salary
is started to be investigated
by the Public Prosecutor's
Office of the State
of Rio de Janeiro, for the
alleged embezzlement scheme
of [inaudible] that
occurred in the [inaudible]
of a former State deputy of
the State of Rio de Janeiro.
Cabinet officials returned
part of their salary
as the main beneficiary,
this term of the
current President Jiar
Bolsonari [phonetic].
The Superior Court
of Justice consider
that the decision issued by the
Trial Court of Rio de Janeiro
that authorized the State
police and the prosecution --
prosecutors to have access
to the bank and [inaudible]
of the State deputy was not
duly supported by evidence
and annulled the use
of the information
pertaining to the bank records.
So, talking about the complexity
of the Brazilian appeal system.
This can be evidentiary by the
many different possibilities
of the deals, habeas corpus,
and criminal review actions.
Changes made by the Higher Court
is [inaudible] risk potential
understand with the
retroactive effect
to reach basic decisions
is common.
And going directly to the
conclusions, we can conclude
from the analysis of
the main corruption
and money laundering cases
that the car wash case along
with all other high
profile case against one
of the people [inaudible] cases
in shaping the Brazilian
[inaudible]
corruption landscape.
It deeply challenge the
Brazilian judicial system,
which has been marked
by decisions that's changed
the legal understanding
of previously decided issues.
There is a perfect inconsistence
in the Brazilian appeal systems
in, on one hand and admitting
if a person be arrested
following a criminal conviction
the first instance, even
if there is pending appeal,
in cases of crimes against
life, like homicides or murders,
when the penalty is equal
to or greater than 15 years.
And not, on the other hand,
admitting this same treatment
in any other case, which must
wait for a final decision
of the Brazilian Supreme Court.
Or admitting as evidence
messages stolen by hackers
from public official cellphones
to unknown decisions based
on information of any --
in violation of the law.
But unfortunately, the public
perception also the Superior
Courts is that they are
becoming a place that --
where cases involving political,
economic crimes go to die,
and where the outcome
of investigations
that upset politicians,
executives, banker, CEOs,
and private companies are burnt.
The Brazilian experience when
it does not distinguish social
[inaudible] has been successful.
The same cannot be said of
political, economic crimes.
That's why a careful review of
the appeals system must be done
in order to ensure
greater effectiveness
of anti-corruption acts.
And finally, Brazil either opts
for a perineal weak
justice system that remains
up with interminable,
political and economic scandals,
or improves it definitively.
I ended that here.
Thank you very much.
>> Eduardo Soares: Thank you
and thank you, everybody.
As we come to the end
of this presentation,
I'd like to thank you,
all three panelists
and also our reference
librarian, Barbara Davis,
for her help, one more
time for their interest,
insights, and discussions.
In this webinar, we
discussed the challenge
to enforce a criminal conviction
in Brazil under the perspective
of a public prosecutor,
public defender,
and an appellate court judge.
I just would like to apologize
for going a little bit
over time, but I believe
it was worth the effort.
Because as I said
in our message,
the topic is very complex
and demands a little
further investigation,
little bit more detail.
And I don't know if we
have time for questions
but submit your questions.
We'll do our best to provide
the answers to the best
of our ability whenever we can.
Thank you for listening.