'De facto control demanded in AP 470 now threatens PSDB members'

247 – The theory of de facto control, invoked by the opposition in the trial of Criminal Action 470, now weighs heavily on members of the PSDB party in the bribery investigations. According to Paulo Moreira Leite, they will now likely face the consequences of their silence, especially when their actions would have been noble enough to defend good principles even when those principles contradict their own interests. Read more:

When the conviction of the Workers' Party defendants served the interests of the opposition, not a single dissenting voice was heard.

The celebrations promoted by the opposition following the use of the theory of command responsibility to convict the defendants in the Mensalão scandal threaten to backfire on the PSDB members denounced in the Tucano bribery scheme.

Pierpaolo Bottini, the lawyer for Professor Luizinho in criminal case 470 and Secretary of the Ministry of Justice during Marcio Thomaz Bastos's tenure, noted in an article on the Consultor Jurídico website that there is a remarkable similarity between the treatment given to the defendants convicted in the Mensalão scandal and the first suspects of receiving bribes in the Siemens scandal – the application of the theory of command responsibility.

Referring to the indictment of former Energy Secretary Andrea Matarazzo by the Federal Police, Bottini, who acknowledges the merits of this jurisprudence developed by the German Justice system but points out that it has certain requirements to be applied in the name of good law, says that it is being applied in a way that is "too extensive."

This assessment echoes criticisms made during criminal case 470.

According to the lawyer, Matarazzo was indicted "based on the aforementioned theory, due to holding the position and belonging to the ruling political party (revealing the wisdom of the old saying that 'what's good for the goose is good for the gander')."

Assessing what transpired in criminal case 470, Bottini notes: "It gives the impression that, to some extent, the theory was used as an element of imputing responsibility and not to distinguish between perpetrators and accomplices."

Many scholars distrust the theory of command responsibility precisely because it serves to justify arbitrary punishments unless employed with due caution, helping to cover up gaps and weaknesses in an accusation. To summarize the issue simply, the criticism would be this: if we know that corruption doesn't leave a receipt, then the lack of a receipt cannot serve as grounds for a conviction, right?

Absolutely right.

When the conviction of the Workers' Party defendants served the political interests of the opposition, which sought to take maximum advantage of the massacre of government leaders in the trial of criminal case 470, not a single dissenting voice was heard.

There was no talk of abuse, politicization of the justice system, or anything similar.

The convictions were applauded in a civic tone, and any attempt to contest them was dismissed as a mere diversionary tactic intended to maintain the impunity of defendants accused in "the biggest scandal in history."

Investigations into the bribery scheme may show that the principle of "control of the facts" in judging others doesn't apply, placing the PSDB party in the difficult position of expecting a benefit for themselves that they denied to their adversaries.

They will hardly escape paying the price for their silence at a time when their actions would have the nobility of defending good principles even when those principles go against their interests—a timely recommendation from political philosopher Isaiah Berlin for politicians of all stripes.

Bottini's article shows that, with the approval of the Supreme Court, the trend has caught on – and this type of conviction could become a standard to be followed in similar cases.

The differentiated treatment given to the Minas Gerais mensalão scandal, which guaranteed the defendants the right to be tried in ordinary courts, helped create an initial controversy in criminal case 470.

A change in the judgment of criminal case 470 could make it more acceptable to display a more rigorous stance in evaluating the evidence against those accused in the bribery scheme, if and when the time comes.

The similarities should end here, however.

At least in its initial phase, the accusations against the PSDB are clearer than those in the PT's mensalão scandal.

The PT's financial scheme was denounced by Roberto Jefferson, a congressman who never presented very strong evidence to support his claims. In later testimonies to the courts, he even contradicted himself and defined the mensalão scandal as a "mental creation."

You might even believe that the Lula government wanted to "buy votes" in Congress and that it embezzled R$ 73 million from Banco do Brasil. But the fact is that there is no proof of either thing. Jefferson, the main prosecution witness, was never at the heart of the scheme, which he only knew about through his participation in one of its fringes, as an allied party.

The case documents, including official audits, contradict several convictions, leading prominent legal experts to question the trial as a whole.

No one knows what the outcome of the Siemens case will be. It's necessary to hear all the witnesses, look for consistency among the evidence, and, certainly, give every accused person the right to demonstrate their innocence.

However, there is a crucial difference in the accusation. It was the company at the origin of the corruption scheme that decided to confess what it did, why it did it, and for what purpose. It stated who it paid, where it sent the money, to whom, and when. It presented documents and guided the searches of partner companies. Siemens incriminates itself – a position that lends complete credibility to its denunciation. Under Brazilian law, with this leniency agreement, it avoids the cartel accusation, and its executives avoid the corruption accusation. The blame then falls on others.

In an analogy, it's as if Marcos Valério had made a plea bargain agreement right at the beginning of the Mensalão investigation – and was able to gather the same set of robust evidence – receipts, documents, and emails – that Siemens presented.

That's the question.