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August 17, 2023

Impartiality, Ethics and Due Process in Corruption Investigations

João Lopes de Farias Da Matta

The recent events related to Supreme Court of the United States Justices brought back modern Ágora (public forum, in Greek) notions of impartiality and ethics in the Judiciary. The principle of impartiality in lawsuits is a long tradition in Civil and Common Law systems; it is directly related to the concepts of justice and fairness. Judicial authorities must be equidistant to conflicts and interests that are brought before them to resolve. Impartiality can be affected in different ways; by lobbying, through gifts or friendship, or any other proactive involvement due to interest in the outcome of a lawsuit other than serving proper justice.

Recently, the Brazilian Justice System was also under scrutiny due to allegations of partiality in one of the most widely known anti-corruption criminal investigations in recent decades, with far-reaching repercussions, nationally and internationally. The Car Wash Operation (Operação Lava Jato, in Portuguese), which started in 2014 and ended in 2021, focused initially on money laundering, and it widened its scope to corruption (including bribes, kickbacks, and embezzlement of funds) between politicians and some of the largest construction companies in Brazil. Lava Jato was quite successful, with almost 280 convictions, and implications for other Latin American countries. Despite the success of the cases in exposing corruption schemes, there were also negative results affecting the principle of impartiality.

Former Federal Judge Sergio Moro, the leading judge for the most important cases of Lava Jato, was publicly viewed in Brazil as a ‘paladin of justice’ with sky-rocketing popularity, media appearances, and public statements. His behavior stood out in a country where judicial authorities have traditionally been secluded from taking public interviews and or appearing in the media.

With Federal Prosecutor Deltan Dallagnol, one of the main prosecutors and the ‘public face’ of the Federal Prosecution, Moro accomplished what seemed almost impossible until then: the use of leniency agreements and plea bargain agreements (coloboração premiada in Portuguese) to arrest and imprison important political and entrepreneurs figures in Brazil. Lava Jato was practically undefeated in Federal Courts and reached peak popularity – a legal Olympus of sort - when former President Luís Inácio Lula da Silva was sentenced and arrested for corruption practices while he was running for office during the presidential elections of 2018.

Right after the election, Moro accepted the invitation of then President-elect Jair Messias Bolsonaro to become Secretary of Justice, resigning from his position as Federal Judge, which he had held for 22 years. Moro stated that this change would “consolidate fighting crime and corruption to avoid setbacks.” However, many legal scholars were perplexed by the timing of his shift to a political office and perceived it as a further indication of partisanship in the justice branch. By then, there was growing criticism of Lava Jato for focusing mainly on Lula’s Labor Party (Partido dos Trabalhadores, in Portuguese), in lieu of broadening the scope to include members of other political parties.

The disapproval of Lava Jato was limited and did not affect its popularity nor success until June 2019, when a media outlet published a series of articles named “Car-Wash Leaks” (Vaza-Jato, in Portuguese). It included leaked private conversations of the public officials leading Lava Jato that shocked the legal community in Brazil: the Federal Prosecutors and Moro shared strategic advice, informal clues, and engaged in political discussion while carrying out the investigation. Moro was also found to have offered suggestions and guidance to the Federal Prosecutors.

Although Dallagnol and Moro denied (and still deny) the authenticity of such conversations, the Brazilian Supreme Court ruled in 2021 that Moro was biased and lacked jurisdiction to rule the cases against the former President. Thus, using some of the Lava Jato Leaks as examples in the ruling, the Brazilian Supreme Court annulled and voided all decisions against the former President. All suits against former President Lula were sent back to square one in different Federal Courts. Many of the accusations were subsequently dropped due to the statute of limitations.

More recently, the National Council of Justice (Conselho Nacional de Justiça in Portuguese, a public institution auxiliary to the Judicial System) took disciplinary action against Marcelo Bretas, a Federal Judge responsible for Lava Jato cases in Rio de Janeiro. He was known as “[Juiz] Moro do Rio [de Janeiro]” (Rio de Janeiro’s Judge Moro) due to some similarities in public appearances, media comments, and the excess use of plea bargain and leniency agreements to ensure incarceration of political figures and entrepreneurs. The Council suspended Marcelo Bretas from office to investigate three complaints against him related to Lava Jato for possible violation of impartiality and judicial ethics.

There have been rumors that individuals and companies that accepted plea bargains and leniency agreements in the wake of Lava Jato seek to rescind these agreements due to the developments of Moro’s seemingly biased case in the Supreme Court. If Bretas’ removal is confirmed, it may encourage more rescindments of leniency agreements. This could lead to potential liability for the Federal Government not only for the payments made under leniency agreements and plea bargains but also for potential indemnifications. These developments and allegations were largely unexpected from the authorities that were publicly fighting corruption. What could be seen as a new era of efforts to strengthen the fight against corruption, is now viewed with suspicion by legal and political science scholars and has damaged the public reputation of the judicial system and people’s trust of it.

These circumstances in Brazil show us that there is room for improvement in the rules regarding public appearances of judicial authorities and the quarantine period when they leave to run for legislative or executive offices. It also highlights that the principles of impartiality, ethics, and due process, by which all justice professionals are sworn to abide, are even more crucial when investigating and ruling corruption cases with broad media appeal. Violations of these principles in sensitive cases can destroy confidence in the justice system and faith in democracy. In summation, the government cannot fight corruption while simultaneously infringing its own laws, particularly the ethical duty of impartiality.

    João Lopes de Farias Da Matta

    International & Comparative Law LL.M. Graduate

    João Lopes de Farias Da Matta is an International & Comparative Law LL.M. Graduate of The George Washington University (Class of 2023), João has over 10 years of experience in Law, having worked for the Amazon Fund, as an environmental lawyer, and for the Brazilian Stock Exchange, as a compliance and enforcement lawyer. João also holds an LL.M. in Law and Public Policies from the Universidade Federal do Estado do Rio de Janeiro (UNIRIO) and has interests in environmental, finance, and compliance issues.

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