Operation Car Wash has become globally famous for cracking down on Brazil’s corrupt politicians. In fact, 2016 was the justice team’s best year yet. Over the span of just one year, the team pressed charges against 20 people – more than the two previous years combined.
However, the Supreme Court was only responsible for three of those charges, as they handle cases regarding active politicians. For those who read our story on President Temer’s failed nomination of Moreira Franco, you’ll know we’re talking about the foro privilegiado. This “privileged” judicial status awarded to elected or nominated politicians reserves their trial to the Supreme Court. Some go so far as to compare foro privilegiado to, well, “impunity”. That’s because the court takes so long to deliver justice that sometimes it even passes the statute of limitations, thereby dropping the case. So, why does Brazil take so long to judge its politicians? We’re glad you asked.
While Operation Car Wash has one court dedicated to all of its cases without foro privilegiado, headed by the infamous Judge Sergio Moro, the Supreme Court has to manage a diverse caseload. Of the dozens of cases thrown weekly onto the Supreme Court’s plate, many have nothing to do with Car Wash investigations. And these decisions are often quite urgent, such as ex-president Dilma Rousseff’s impeachment last year. Each of the 11 Justices has a giant caseload, and each case is extremely difficult in regards to constitutionality.
All for one
Another reason Supreme Court cases take so long is that all of the justices must arrive at a collective agreement. Each case must go through a specific voting process to even make it onto the schedule. Also, each case has one assigned Justice, with a second judge as its reviewer. Both have to agree on the case to bring it to judgement day, and even then other Justices can veto the decision.
Meanwhile, Judge Sergio Moro can process the non-privilegiado cases all on his own, allowing for a quick (some would say hasty) decision process.
Judge Moro is also able to lock up individuals more quickly, as they’ve oftentimes already signed a plea deal with investigators. Of the 87 persons condemned by Moro, 37 had signed plea bargains.
On the other hand, the cases tried by the Supreme Court are often those named in the plea bargains. Such cases must go to the Attorney General, Rodrigo Janot, who must investigate and prove the accusations. There are hundreds of these cases, and many argue that Janot is simply overburdened. Since the start of Operation Car Wash back in early 2014, Janot has seen 413 cases arrive at his desk. He has presented only 16 denunciations of those accused with “privileges”.
However, to counter Janot’s defense, the Public Prosecutor of Paraná working with Judge Moro has dealt with over 1,000 cases, and pressed charges against 260 individuals. Talk about efficient justice.
Sem foro é Moro, the Cunha case
One great example of the differences that foro privilegiado makes in investigations of political corruption is the case of ex-House Speaker Eduardo Cunha. Cunha was accused of accepting bribes from Petrobras back at the start of Operation Car Wash. He then used his political power to tamper with investigations. As a result, the Supreme Court suspended his position as Speaker, but he remained active in Congress. Cunha’s crimes were already severe enough to arrest him, although he still had foro privilegiado as an elected politician.
However, the House Ethics Commission later impeached Cunha for lying about secret bank accounts in Switzerland, thus losing his privileged judicial status and going into the common justice system. And just like that, two weeks later Judge Moro ordered his arrest.
There’s an infamous Brazilian saying that perfectly characterizes the inequalities of the justice system, Sem foro é Moro. That is, once you lose your privileged status, you’ll have to face Judge Moro. But for those accused of corruption that still have foro privilegiado, justice may be a long way ahead.
Some jurists have pushed for a reform of the foro privilegiado. But in order to push that reform through, it would need to pass in Congress. And somehow, it’s hard to imagine that congressmen – many of whom are up for investigation – would speed up their own prison sentence.