O jurista Matthew Stephenson mudou sua opinião sobre as mensagens vazadas da Lavajato graças, principalmente, a uma troca de mensagens com um leitor de seu blog (oaksbr), que soube explicar de modo bem preciso as diferenças entre o código penal brasileiro e o de outros países.
A discussão está na área de leitores do primeiro artigo de Matthew Stephenson sobre as mensagens reveladas pelo Intercept. Para facilitar, trazemos ela abaixo.
- oaksbr on June 12, 2019 at 2:46 am said:
I generally agree with Mr. Stephenson’s assessment that “for the most part, the specific communications disclosed in the Intercept’s story don’t seem to suggest anything all that significant”, and that several claims asserted in the (unabashedly partisan) report were overblown, even if one presumes that the messages were presented accurately and without tampering (I seriously doubt that criminal hackers are concerned about chain of custody).
On the other hand, Mr. Stephenson describes the fact that Judge Moro exchanged encrypted text messages with the prosecutor in charge of the Lava Jato operation as “a shocking and inexcusable breach of judicial ethics”, regardless of the specific contents of the communications. This assessment, while perfectly understandable from a foreign observer’s viewpoint, barely resonates from a local’s perspective. To be sure, there is plenty of ongoing controversy in Brazil regarding the supposedly improper content of conversations between Moro and Dallagnol, but the mere existence of ex parte communications between a judge and a prosecutor has not been considered “shocking” – to the contrary, one may argue that the events described are not that much of a deviation from usual judicial practice in Brazil.
Regarding this subject, there are two significant aspects of Brazilian procedural law that one should keep in mind:
1) In Brazil, ex parte communications between judges and attorneys are the rule and not the exception. Here, I use the word “rule” to describe not only an accepted and generally expected practice, but the actual letter of written law: according to article 7, VIII of Federal Law nº 8.906/94, attorneys are legally entitled to speak directly to judges, regardless of previous appointments or any other prerequisite (including the presence of the opposite party). Article 9, p. un, I of the Brazilian Judicial Ethics Code also expressly states that there is no violation of impartiality if a judge grants a hearing to only one of the parties or their lawyers, as long as the same possibility is granted to the opposite party, when (and if) requested.
The rule that allows ex parte communications applies even to Supreme Court justices: a few years ago, an attempt at reform that would allow the justices to limit attorneys’ access (for instance, by requiring the presence of the opposite party) was shot down, in no small extent, due to pressure from Brazil’s powerful Bar Association (OAB).
Therefore, face-to-face communications between judges and attorneys (in civil or criminal cases alike), without opposing parties, and frequently behind closed doors, is standard and common practice in Brazil. Lawyers have nicknamed the practice of “making your case” in a private audience with a judge as “embargos auriculares” (which could be roughly translated as “auricular appeal”).
2) According to Brazilian criminal procedure law, a prosecutor must request judicial warrants in order to collect virtually any confidential information while investigating a case, including bank records, electronic communications and wire taps. Warrants for wire taps, in particular, are legally valid for only 15 days, after which they must be renewed by another judicial decision. For obvious reasons, such warrants are granted in secret, without any hearing from the investigated party.
In Brazil, the judge that grants such warrants during the investigation is the same judge that will try the case (unlike some European countries, where matters regarding pre-trial evidence collection are adjudicated by a different judge – “judge of instruction” – than the one that will preside over the trial).
In complex criminal cases, this usually means that intense ex parte communications are established as the prosecutor presents his pre-trial requests (and the evidence that supports such requests) before the judge, possibly months before a criminal accusation has been filed, and therefore long before any hearing is granted to the defense. Specifically in the case of the Lava Jato operation, such complexity is compounded by the fact that dozens of cases were being submitted by the same prosecutors to the same judge (in different stages, ranging from pre-trial investigations to appeals against sentences), over the course of years.
In such a context, that combines a huge amount of ex parte communications with the need to assure secrecy to the proceedings, the use of an encrypted message app could be seen in good faith as a natural extension of the face-to-face communications that prosecutors and judges establish on a regular basis in Brazil.
There is certainly a legitimate concern that this system might foster proximity and a sense of collaboration between prosecutors and judges while fact-finding for a criminal case: but such an outcome is mostly a matter of (arguably) flawed institutional design rather than a question of individual ethical choices.
In closing remarks, there is one of Mr. Stephenson’s claims that I take issue with: “For a judge to engage in secret, ex parte communications with a prosecutor (or, for that matter, a lawyer for any party) regarding a pending case is the height of impropriety”. Unfortunately, such ex parte communications barely scratch the surface of improper and unethical – yet commonplace and widely accepted – practices regarding the relationship between judges, parties and attorneys in Brazil.
Brazil’s judicial system has an extremely lax approach to serious conflicts of interest regarding judges, especially in high courts. For instance, in Brazil it is perfectly usual for judges (including Supreme Court justices) to adjudicate cases involving law firms that employ their spouses and/or relatives, as it is common for retired judges (as well as Supreme Court justices) to resume their careers as attorneys, using their privileged connections to influence the court’s decisions. A few months ago, a Supreme Court justice infamously did not recuse himself from a criminal case, despite being godfather to the defendant’s daughter.
To be sure, there are legitimate causes for concern regarding the appropriate relationship between judges and attorneys in Brazil, and the need to adopt procedures that safeguard judicial impartiality, but such discussion should not be limited to supposed ethical lapses in the exchange of messages between Moro and Dallagnol. As members of the Supreme Court have already begun questioning Moro’s impartiality, while failing to address their own – way more serious – conflicts of interest, one is reminded of the biblical sermon on hypocrisy: “First, remove the beam out of your own eye, and then you can see clearly to remove the speck out of your brother’s eye”.
- Matthew Stephenson on June 12, 2019 at 3:42 am said:
Wow, thanks so much. This is incredibly helpful, and offers a perspective that’s very different from that of most of the previous commenters. I anticipated in the post that my strident condemnation of the secret ex parte consultations might have been off the mark if Brazilian procedural law is different from US law, and it appears that in your view, I erred in precisely this way.
I confess, though, that now I’m even more confused:
Several of the commenters who weighed in above pointed to Articles 145 and 254 of the Brazilian Code of Criminal Procedure, which they say clearly make it unethical, and possibly unlawful, for a judge to preside over a case in which the judge has provided advice to any party (without disclosing it and giving the other parties the right to demand the judge’s recusal).
But you point to Article 7, VIII of Federal Law nº 8.906/94, as well as Article 9 of the Brazilian Judicial Ethics Code, which seem to allow ex parte communications between the judge and the lawyers for one or the other party. (Of course some proceedings are always ex parte, like warrant applications, but I take it in Brazil, on your account, there’s more latitude for such communications even in the context of an ongoing trial.)
Can you or any other Brazilian lawyers out there explain how to reconcile these seemingly conflicting legal provisions? Is the idea that the judge may meet ex parte with lawyers for one side or the other, but may only listen to their arguments, not give any advice or suggestions? That would seem to reconcile the provisions, but it would also imply that in these ex parte conversation the judge must be a mostly-silent, passive listener, which I gather is not the typical practice in Brazil. Another way to reconcile the provisions is to construe the bit about impermissible judicial “advice” narrowly, so that it doesn’t cover things like suggesting the order in which a prosecutor applies for search warrants, or cautioning a lawyer not to overstep, or things of that nature. I take it that’s the reconciliation you’d endorse?
Anyone else out there care to weigh in on this? I need help understanding, and I bet others do too!
- oaksbr on June 12, 2019 at 8:08 am said:
Regarding the interpretation of article 145, II of the Civil Procedure Code and article 254, IV of the Criminal Procedure Code, the key word in Portuguese would be “aconselhamento”, which could be construed as “advice” in a vulgar sense, but should probably be read as “legal counsel” in a stricter sense (some quickly researched precedents: STJ-6ª Turma HC 206706/RR and STJ-3ª Turma REsp 307045/MT). The Civil Procedure Code (which may be applied to criminal procedure as a subsidiary rule) is more specific, citing “advice / counsel regarding the contents of the case” as grounds for judicial disqualification.
I agree that the proper conciliation between the legal provisions you mentioned would be for the judge to remain “a mostly-silent, passive listener” in ex parte communications: a judge could (and frequently does) ask questions regarding the case and the legal arguments brought before him, but should never anticipate his verdict or offer legal opinions to either party.
However, I would not qualify a suggestion regarding, for instance, the best date to enforce a search warrant as a “legal counsel”: given that such actions generate a surge of judicial activities and may have practical consequences dealing with the allocation of the judge’s time and human resources, there would be several legitimate reasons for which a judge may suggest moving the date of an “operation”. Besides, discussions regarding the most efficient way to enforce a warrant that has already been granted have virtually no relation with the actual contents of the case.
There is, inevitably, a grey zone between strictly practical suggestions and illegitimate legal counselling, and the question of where to draw the line is open to debate. Generally, I would consider the “red line” to be crossed when the judge offers to one of the parties a “roadmap” to a future decision (as in, “if you want X, you should do Y”), but even in such cases there may be some ambivalence in the language used.
- Matthew Stephenson on June 14, 2019 at 1:37 am said:
Ah, I see, that’s helpful. The “grey zone” you identify seems like a real problem area, and may illustrate the disadvantages of having a system in which the judge supervising an investigation is also the judge who presides over the trial. It’s easy to imagine that the judge overseeing the investigation would want to give prosecutors feedback of a certain kind–“if you want a warrant for X, the evidence you have isn’t good enough, I’m going to need something more concrete,” or “if you’re going to apply for a wiretap, you’d better be careful to limit the scope appropriately”–that could, I suppose, be characterized as “legal advice.” More generally, when the judge is working closely with the prosecution team over a long period of time (often with multiple secret meetings), it would quite likely that the judge might start to identify with the prosecutors. Perhaps one of the lessons that ought to emerge from this whole fiasco is not that the Lava Jato operation is some weird tainted perversion of Brazilian justice, but that there’s a structural feature of Brazilian criminal procedure that really needs to be fixed.
PS: Interessante como as considerações do leitor vão ao encontro das mesmas questões levantadas por esse blog, ver aqui (TBD).
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