This article was republished with permission from FCPAméricas Blog, for which Matteson Ellis is founder, editor and regular contributor.
Brazil’s Lava Jato, also known as “Operation Carwash,” is the largest anti-corruption prosecutorial effort in the world today. And perhaps the most important individual behind that effort is Sergio Moro, a federal judge overseeing several of the criminal proceedings. On July 14, 2016, Judge Moro spoke to an audience in Washington, D.C. at the Brazil Institute of the Woodrow Wilson International Center for Scholars. The points he made deserve attention.
Corruption in Brazil is Systemic
Judge Moro did not mince words. He made it more than clear that corruption in Brazil is systemic, that it has been “a rule of the game” and that the schemes uncovered in Lava Jato reflect this fact. He said, “It’s true. It’s shameful.” He touched on various reasons. One in particular is the fact that, he said, historically those engaged in corruption operate with high levels of impunity. It has been rare for proceedings to reach final conclusions and for corrupt actors to go to jail. This is due to an overflow of caseloads in the judiciary and slow and ineffective judicial processes. He told one story of how Lava Jato so far revealed that certain legislators were continuing to receive bribes in connection with Petrobras, even as Brazil’s Supreme Court was advancing the prior Mensalao corruption case (described by FCPAmericas here). He said, “The magnitude of this corruptive practice is incredible.”
Public Opinion Has an Important Role in Lava Jato
With periodic protests of millions of Brazilians against corruption, and a steady release of sensitive information related to the Lava Jato investigation, the role of public opinion in the proceedings thus far has been evident. Some have criticized this approach, asserting that justice is undermined when issues play out in the court of public opinion. While acknowledging this risk, Judge Moro defended the role of public opinion: “Since the beginning of the investigation, it was our decision that we would not hide any information from the public. The Brazilian Constitution requires that cases are not tried in secret. Once a particular investigation was finished, everything was conducted under the light of the sun, the hearing and trial.” In response to those who say the current approach undermines due process, Judge Moro stated, “I disagree. Every part of the process is done in open court. Lava Jato is not a witch hunt. Evidence of corruption revealed by investigations shows huge proportions. Nobody is being charged for political opinion, but rather for the bribery and money laundering crimes committed.” He added that there has also been a practical reason for ensuring a role for the public – it has helped prevent obstruction of justice.
Use of Pre-Trial Detention
Anyone watching Lava Jato unfold knows that the use of pre-trial detention has been an important component of the investigations. High-level executives in the country accustomed to lavish lifestyles have found themselves in holding cells for extended periods of time. Some say this reality has led many to choose to plea bargain (delação premiada). In turn, the information that has come out of these pleas has assisted Brazilian authorities in unraveling what are complex corrupt schemes. Judge Moro explained, “The police could turn each accused against the other and break the secrets.” He said that, in Brazil, trial judges can order pre-trial detention if the defendant might flee, obstruct justice or present other risks to society. He stated that pre-trial detentions should be exceptions and not the rule. Given the prevalence of their use in Lava Jato, one might say that the exception has come close to the rule.
Judge Moro acknowledged the importance of international cooperation to Lava Jato. He said that a central component of the investigations has been “following the money,” which has required access to bank accounts. Locally, this has required, at times, legal suspension of secrecy protections around accounts. Cooperation with foreign authorities has permitted local investigators to identify secret accounts maintained abroad. He said, “International cooperation is key in complex cases, because the criminal may [hide] money or flee abroad.”
Judge Moro did not miss the opportunity to remind Washington of the historic nature of Lava Jato: “Some cases already tried have had no precedents in Brazil. Never before Lava Jato have top executives of the biggest construction companies been convicted of bribery and money laundering. Never before Lava Jato has a Petrobras executive been charged. Today, four have been convicted and are serving prison sentences.” He gave a hopeful message about Brazil’s ability to address widespread corruption going forward: “Brazil is fixing the problem and taking serious steps in fighting systemic corruption. It shows to us that there’s a possible light at the end of the tunnel.”
The opinions expressed in this post are those of the author in his or her individual capacity and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author`s employers, other contributors, FCPAméricas or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.