Disfigured! Anti-corruption law by a legislature lacking legitimacy.

This article has a legal-critical perspective and will be divided into two complementary parts. The first part will present the debate in its main details prior to the deliberation and vote in the Chamber of Deputies. The subsequent part will delve into what remained of the... Anti-Corruption Law The proposal, put forward by the Public Prosecutor's Office, had over two million signatures that legitimized it.

Article 1 (...)

Sole paragraph. All power emanates from the people, who exercise it through elected representatives or directly, in accordance with this... Constitution.

First Moment: The spirit of anti-corruption law The proposal by the Public Prosecutor's Office and the attempt to distort it – the criminalization of abuse of authority.

It has been proven that the country has a cunning history of corruption, but that in the last decade it has become endemic, systematized, and capable of enriching a few at the expense of social impoverishment and the annihilation of the public by the private sector.

We are ranked 76th according to the 2015 CPI - Corruption Perceptions Index, according to a study by Transparency International, sharing this position with Bosnia and Herzegovina, Burkina Faso, India, Thailand, Tunisia, and Zambia. Countries in the top positions, such as Denmark (1st place), share some common characteristics: high levels of press freedom; access to information about budgets that allows the population to know where the money comes from and how it is spent; high levels of integrity among those who hold public office; and a high level of school education.

The ideologically diminished PEC 37 was in fact a first attempt by established political forces to undermine prosecutorial institutions and, with them, democracy as a guarantee of maintaining impunity, which by then was already being strongly challenged by the dynamics of a civilizing process lost in time. Society took to the streets, and the proposal to mutilate the Public Prosecutor's Office was rejected.

In a crucial moment, the Supreme Federal Court was forced to pronounce itself twice in the same sense by its Full Court regarding the possibility of beginning the execution of a sentence based on a collegial decision confirming the conviction in the first instance. With a narrow margin, society prevailed, once again demanding effectiveness in the execution of the Criminal Process, regardless of the "pedigree" and capacity for influence that a citizen may possess, with Brazil following the path that the world has been taking for some time now.

The effective results obtained in the lower courts in combating the endemic corruption that may have crippled the country when it colluded with a dormant and demented incompetence of a project to perpetuate power carried by the most archaic model of populism, when investigations, coercive measures, arrests and recovery of billions embezzled began to "threaten" the interests of large businessmen, political agents and even the highest instances and corporations of the Brazilian Judiciary.

The match began with the so-called "Mensalão" scandal, still timid and concentrated in the Supreme Federal Court, the highest instance of a conservative segment of the Judiciary that protects the institutions of power and often concentrates more on the "guardianship" of those in power than on constitutional values. The Supreme Court, which is systematically invoked through the outdated concept of privileged jurisdiction (in truth, with the simple function of granting privileges and creating inequality among citizens), seems to carry the role of discouraging those most audacious in the pursuit of equal justice, without selectivity or wrongdoing, and also seems to fulfill the role of guarantor of... status quo of a rotten, marginalizing political system.

Today, the focus is on Operation Lava Jato, less concentrated in the Supreme Federal Court and more in the lower courts, and consequently with a more effective performance based on a greater commitment to the law and the constitutional ideals proclaimed in article […]. 37 da CRFB...with equality, justice, and equity, and less with the tutelage of the established political system. At the center of the storm of corporatism within a system deviated from politics are police officers, public prosecutors, and judges—members responsible for public safety and criminal prosecution. PLS 280 proposes the creation of new criminal offenses to complement the existing Abuse of Authority Law. 4898/65. The imprecise and extremely open wording for a criminal classification gives rise to subjective interpretations seeking to criminalize the obtaining of confidential information without authorization (articles 22 and 42), the use of evidence that may later be considered illicit (article 25), entrapment and integrity testing (article 26), the use of dialogue between the investigated party and their lawyer as evidence (article 28), the filing of charges without justified cause (article 30), exceeding the time limit in the investigation (article 31), or exceeding the limits of the warrant (articles 21 and 38). The irregularities mentioned cause, under current law, the nullity of the evidence and the process, which is sufficient to safeguard individual rights without promoting the fear of a more thorough investigation, and in our opinion, it is unnecessary to transform them into crimes punishable by imprisonment.

The proposed law, however, does not deserve an interpretation based on a cursory reading or opinions that reveal themselves to be biased and partial, as it has had a series of nuances with different finalistic spectra. It is a fact that the existence of institutions of power that are, or nearly, beyond scrutiny is no longer acceptable. Internal scrutiny within the hierarchical structure is often biased and corporatist, therefore, in a way, useless and inefficient. As is well known, the stigma of corruption is systematic and, to a greater or lesser extent, spreads throughout the institutions of power, when we realize that where there is the possibility of political action, there is also the possibility of deviations from intended purposes.

With all due respect, exemplar gratiaThe National Council of the Public Prosecutor's Office (CNMP) and the National Council of Justice (CNJ) exhibit a marked degree of corporatism in their actions, which have a notable political bias. They do not provide effective opportunities for social control – transparency – and do not promote equal protection, appearing only to listen selectively to the most influential corporations.

The discussion surrounding the bill that criminalizes abuse of authority by judges and members of the Public Prosecutor's Office involves, among other factors, corporatism and political motivation. On the one hand, the judiciary argues that restrictive measures on the actions of judges are a response to the imprisonment of politicians; on the other hand, there is a class discourse aimed at guaranteeing privileges. Indeed, the actions of judges that reveal themselves as abuse of authority should be subject to questioning, because judges are not gods, members of the Public Prosecutor's Office are not devils, and the police are not composed of MMA fighters. The definition of what constitutes "justified cause" in the bill, the illegality of evidence, or excess in the performance of duties lacks clear legal or doctrinal guidelines. The legal uncertainty caused by the permanent threat of being accused of abuse of authority will foster fear among members of the Public Prosecutor's Office to pursue criminal charges, especially against those who hold political power, as their actions could be interpreted politically and backfire. The same will occur regarding the actions of police officers and judges, especially at the first-instance level, where impunity will tend to increase. And the issues don't stop there: the bill requires that the temporary arrest warrant state the date on which the prisoner will be released (Article 43). This provision ignores the fact that arrests are not always carried out immediately. Capturing a fugitive can take years. In practice, the police would have only a few days to execute the arrest, otherwise the warrant would expire, which would encourage those under investigation to flee.

The bill establishes a prison sentence of one to four years, in addition to a fine, for state and federal police officers, prosecutors, judges, appellate judges, and justices of higher courts who order or execute arrests, detentions, or imprisonments outside of legal circumstances. It would also punish authorities who illegally take someone into custody and fail to grant provisional release, with or without bail, in cases permitted by law. The proposal also establishes a sentence of one to four years for police officers who coerce a detainee, through violence or threats, to produce evidence against themselves or others. Other crimes of abuse of authority foreseen by the proposal include the unauthorized entry into suspects' homes, unauthorized wiretapping or data interceptions, and the illegal obtaining of evidence, among others.

However, the law in question cannot be intimidating; it should only regulate and define the excesses committed by those in power. We cannot imagine what the Military regime did when it used censorship to silence the press and society. The law cannot, however, attempt to censor out of fear the actions of law enforcement agencies (indispensable to a democratic state governed by the rule of law) and judges who act according to their free convictions, provided they are duly justified. We are riding the wave of the neo-constitutionalist model where the judge has ceased to be the "mouthpiece of the law." bouche de La loi From the time of the French Revolution – and it came to wield the power of interpretation, of hermeneutics, when it can not only interpret the norm – many of them open, with multiple meanings, as are principles – but also interpret the concrete cases that are presented to it for consideration, when the existence of divergent interpretations is absolutely tolerable as long as they are duly grounded in a compelling logical-factual construction.

It is unthinkable that the law should serve as an instrument of pressure for the will of a particular party to prevail. Abuse of authority must be evident from a rigorous admissibility assessment, and divergent judicial interpretations between jurisdictional instances cannot be confused with abuse of authority. The fact that the first instance court acted coercively based on a reasoned decision, but a higher court deemed it unnecessary, does not constitute abuse. As we have stated, provided it is justified, the law can encompass various interpretations when considered in the specific case and all its peculiarities. The same applies to a possible arrest warrant, which may have been interpreted as necessary in the first instance – justified – but revoked by a higher court that may present a different interpretation for the same judicial case. Abuse would occur in an unjustified arrest or one justified by untrue facts of a proven political-partisan nature, which the judge considered to be malicious, thus, for motivations that escape what morality and law would admit as justification. ratio essendi of the decision.

We do not agree with the idea of ​​considering judges and prosecutors as being responsible for crimes of responsibility, because as stated in our ConstitutionThe crime of malfeasance can only be committed by those who hold political or leadership positions. The bill would even include the possibility of initiating charges of malfeasance by any member of the public, which would include those under investigation, and this could undoubtedly lead to the misuse of this instrument and serious problems for the effectiveness of Lava Jato.

Another unthinkable aspect is removing the Public Prosecutor's Office from leniency agreements, as some are considering. Whether the Public Prosecutor's Office is a party to the agreement or not, acting as a guardian of the law, its presence must be politically non-negotiable at all stages of the process, following subsequent judicial approval! A leniency agreement is one in which a company involved in some type of illegality denounces the scheme and commits to assisting a public body in the investigation. In exchange, it may receive benefits such as reduced sentences and exemption from paying fines. It should be seen as an instrument to combat corruption, not to save companies. Companies that benefited from illegal schemes could admit guilt, and if they removed the executives involved, paid fines, and returned the embezzled money, they could return to participating in government tenders with their "practices," freeing all those involved from any criminal sanction simply by signing the leniency agreement – ​​a kind of amnesty. An imponderable absurdity!

What cannot be considered is the enactment of a law that even minimally jeopardizes the functional independence of the Public Prosecutor's Office or the reasoned conviction of judges in any of their constitutional functions, when we do not consider that the commission of proven abuses and the eventual punishment of those who commit hypothetical abuses negatively impact any guarantee of the magistrates, prosecutors, or police chiefs. However, we cannot accept that actions that simply contradict dominant interests are labeled as "abuse" in order to hinder Operation Lava Jato and disrupt its continuity. The acceptance of the theory of... checks in balances which represents an evolution of the principle of Separation of Powers, which does not deny the independence between the powers – rather, it is interdependence – but allows one branch of state power to restrain the abuses of another in order to balance them.

It is interesting to note the absence in the draft law of any provision concerning the abuse of parliamentary prerogatives, which are often used to serve personal and third-party interests. Why this absence? These discussions need transparency; society needs to be called upon to participate in the political decisions of the State. Lengthy deliberations are necessary; legislative approvals like these, made in the dead of night, are unthinkable.

Second Moment: Voting in the Chamber of Deputies and its distortion.

A true mockery of society has been perpetrated. The political agents of the Chamber of Deputies have abdicated their constitutional roles as representatives of the people to legislate solely and exclusively for their own benefit, with the aim of saving their already scarred skins from lying in a splendid cradle for so many years (a good portion of them), as the professional politicians they are.

It has been revealed that there is no longer any harmony between the "Powers" of the Republic, and this is now blatantly obvious. Thus, the rupture of two fundamental principles of the State—harmony and independence between the "powers," as enshrined in the Constitution—is decreed.

Article 2. The Legislative, Executive, and Judicial branches are the Powers of the Union, independent and harmonious among themselves.

It is very clear that on one side – the dark side of the force – is the political class in its great majority, which, threatened by the criminal prosecution bodies that are uncovering the corrupt political system in the State, has resorted to confrontation. On the other side is a good portion of the Judiciary – the uncorrupted portion, which is mostly found in the lower courts – the Public Prosecutor's Office, the Federal Police, and a society that has become incompatible with the corrupt and old politics.

Furthermore, this traumatic vote, in which representatives of the people voted absolutely against the interests of the people, triggers an indelible crisis of legitimacy. It is in these moments that voices emerge that frighten a truly corrupt democracy, clamoring for the return of the military – intervention – so that “order” may be restored. As constitutionalists, we feel prevented from accepting these voices from the streets, which still represent minorities; our Constitutional order does not allow it. But as citizens, we are often unable to effectively counter-argue them if we choose to abandon theory and embark on factual observation.

We will continue to defend democracy, as idealized in the established constitutional order, but which is utterly dissonant with the factual and moral order. First, all necessary forces must be employed so that our misguided democracy finds a path with less putrid odor and returns to the constitutional boundaries it proclaims. It cannot be forgotten that power emanates from the people, and that only the exercise of power is conferred upon our representatives elected by the people, who must indeed be held accountable for their deeds and misdeeds.

A relevant political fact is that the distortion of ideals imposed by the Chamber of Deputies on the bill proposed by the Public Prosecutor's Office against corruption had the massive support of the PT, PMDB, PSOL, PDT, PC do B parties, among others of lesser political expression. The DEM, the party of the Speaker of the House who led the proceedings, supported a good part of these measures to maintain the state of corruption and impunity. Among the more prominent parties, PSDB was the only one that voted in favor of the anti-corruption measures proposed by the Public Prosecutor's Office and publicly defends them. Society needs to know the ideology of the parties that represent us.

In short, the deputies rejected the point that would have criminalized the illicit enrichment of public officials; the proposal that provided for leniency agreements between companies involved in crimes to facilitate the discovery of new crimes; the changes regarding the statute of limitations for sentences, which were intended to be longer to prevent impunity; the creation of extended confiscation, which would allow the seizure of assets from a person convicted of serious crimes. Also removed were measures that would have encouraged the reporting of corruption crimes; the proposal for agreements between the defense and prosecution to simplify processes; and the point that provided for the accountability of political parties and the suspension of their registration in cases of serious crimes.

Of the 10 anti-corruption measures, only four were approved:

1. The one that criminalizes undeclared campaign contributions after strong popular and media pressure, dismantling the idea following Temer's statement that he would veto it and the subsequent agreement with the presidents of the Chamber and the Senate;

2. Transparency measures to be adopted by courts, these being measures that clearly do not affect the political class in any way, on the contrary, they provide them with greater control;

3. Increased penalties for corruption, approved with the aim of creating arguments to defend the content of the countermeasures deliberated and approved before society;

4. Limitation on the use of resources for the purpose of delaying the process, approved, as this is, in fact, the spirit of New CPC.

The bill approved in plenary establishes a tiered penalty for various crimes, according to the advantage gained from the act or the damage caused to the Public Administration. These include: crimes of embezzlement, insertion of false data into information systems, extortion, passive corruption, active corruption, and active corruption in international transactions.

In order to oppose the decisions of judges who opt for the commutation of custodial sentences to alternative penalties, which is possible when the minimum sentence is less than four years, the minimum sentence for several crimes has been increased to four years. This includes crimes such as embezzlement, extortion, insertion of false data into information systems, excessive taxation, passive corruption, active corruption, and active corruption in international transactions.

The approved text broadens the concept of popular action to allow for exemption from court costs and attorney's fees. The scope of action is expanded, thus: any citizen may file a popular action to annul an act that is harmful to public assets or an entity in which the State participates, relating to the environment, administrative morality, and historical and cultural heritage. Popular actions may also target contracts of any recipient of public funds, including concessions, authorizations, or agreements.

The Lei 8.429The 1992 amendment also modified the law to criminalize the filing of a lawsuit against a public official or third-party beneficiary for an act classified as "reckless." The penalty is increased from detention of 6 to 10 months to imprisonment of 6 months to 2 years. It further stipulates that, in public civil actions "filed recklessly in proven bad faith, with the purpose of personal promotion or political persecution," the association bringing the action or the member of the Public Prosecutor's Office will be ordered to pay court costs, fees, procedural expenses, expert witness fees, and attorney's fees. Thus, "political persecution" and "personal promotion" are indeterminate legal concepts of extreme subjectivity, capable of serving as a real threat to criminal prosecution.

The Judiciary, especially the Supreme Federal Court, will have to respond to one of the branches of state power – the Legislative branch – which, legislating in defense of its own interests, has abdicated the constitutional mandate that enshrines it as one of the functions of popular representation, where the people are the legitimate holders of power. The Supreme Federal Court will have to choose how it will present itself: as a Constitutional Court guaranteeing constitutional values ​​or as a Political Court embedded within the Judiciary guaranteeing a corrupt political system that deviates from the public interest. Today, the Presidency of the Supreme Court is very well represented by Minister Carmen Lúcia.

See here Here's a link from the Paraná State Public Prosecutor's Office that lists the 10 original measures proposed by the Public Prosecutor's Office.