(Lava Jato means Car Wash Operation)
All peoples, with a minimum of civilization, want their respective rulers to be incorruptible in the handling of public money. This widespread desire for honesty is regardless from the dominant ideology in the country. Capitalist, socialist, mixed and even Nazi - or similar - nations tolerate everything except the dishonesty of their leaders.
In communist China, until a few years ago, even senior members of the single party, or influential businesspersons if guilty of corruption were sentenced to death penalty and shot in the back of the head in a football stadium. A former president of Huarong Asset Management, Lai Xiaomin - a state-owned company specialized in financial asset management - who appropriated $ 277 million in ten years from 2008 to 2018, was sentenced to death for corruption and bigamy. His assets were confiscated. It is on the internet. In addition, the "cost" of the execution the bullet itself was charged to the family.
Detail of black humour, the charging of the bullet is a strong warning, short and sweet, for geniuses and illiterates, that “if you steal, you die!” addressed to all citizens, “those above and those below". Considering that the image - the shooting - live, is more persuasive than hundreds of pages, written or spoken, this must have contributed to refrain out of fear, thousands of citizens tempted by the possibility of illicit enrichment working in the government, where it is easier to steal since money, in an impressive volume, more accessible, without external surveillance or auditing.
Currently the death penalty for corruption cases in China has decreased due to international pressure, but the severity remains, although without a shot in the back of the head. This is because the Chinese like the rest of the people, in their vast majority approve this severity, and no government despises popular support. Fear in theory a negative emotion, can depending on the context, be immensely virtuous, hence my support for Sérgio Moro's effort, henceforth at an international level.
His expertise in fighting sophisticated corruption will be better understood and practiced in other nations. His personal sacrifice cannot be and go wasted. Corruption lost the first battle in Brazil, but it still has the hope of winning the war, with the help of the hackers, cybercriminal activities and partisanship of part of the top level of the judiciary.
The media says that Xi Jinping, the current Chinese president, has already punished more than a million civil servants. Strictness in protecting the public asset - whether due to the ruler innate honesty or political calculation - generates trust and loyalty. Clearly, the fact is that without a demonstration of personal honesty every leader from any country ends up losing power. Let's look briefly, at some examples.
Hitler was a brutal and self -professed dictator but not considered a thief. Stalin, a wicked comrade, had simple habits no luxury, interested "only" in gradually implementing a world dictatorship of the proletariat, starting with Russia. He ordered the killing of opponents but as far as it is known, he did not have any bank account abroad (perhaps because he did not need it; he had everything, and never thought of stepping down). His predecessor Lenin did not care about money either. The same is true of the Chinese Mao Zedong who in order to establish communism in his country, did not hesitate to kill tens of thousands of "disobedient", using hunger or firing squads. All of the aforementioned dictators had their shortcomings, but they did not rob the country itself.
Can anyone imagine Hitler, Lenin, and Stalin, Mao being photographed carrying dollars or diamonds in their underwear? Impossible. An unacceptable demoralization. They were "hard" in their style, brutal, but they did not steal and that is why the majority of their people supported them. In Brazil, Getúlio Vargas was a dictator in a certain period, but never a thief. The same happened with our military presidents all, in my opinion, personally honest, in the twenty years of power.
Insisting: the vast majority of men and women worldwide, are keenly interested that their rulers neither steal nor let steal. Hence, the need for a new strategy, now more extensive, global – "tough", legally debatable, but inevitable if we really want success in the struggle against white-collar crime: "whistleblowing".
Without this "state’s plea", or "collaboration" carried in Operation Lava Jato led by Sérgio Moro, Brazil would continue as a country with two types of justice. A double standard - the routine, "Generic", for common people - of rudimentary investigation -, and the "Privileged" - of complex, lengthy police investigation, requiring knowledge of computers, telephony, legal and illegal wiretapping, hackers, varied tax and banking legislation, in the country itself and in different parts of the world, notably in Tax Havens.
Without the necessary innovative boldness of Lava Jato staff coordinated in an unprecedented way by Sérgio Moro, Brazil would continue "to dry ice": the police trying to get hold of the junior offender but unable to get to the top, the "head" of the embezzlement scheme usually hidden, respected and shielded by competent lawyers. In short, before Sergio Moro, the police could make headway to a certain level of knowledge of the fraud; say 50% - enough just to know that "there is crime here!" - but unable to get to the details, with documentary, oral, and computer evidence thus enabling an accurate indictment and a judicial conviction difficult to reform. Police investigation without judicial support is hindered because, unlike the judge, the police officer does not enjoy the benefit of not being transferred. If a big shot is bothering a big shot, he can be transferred to another city.
Of course, police cooperation between countries already exists in the fight against international drug trafficking, prostitution, slave labour and other ways of fighting organized crime. However little could be done, before Sérgio Moro, in cases of money laundering, slush funds, evasion of foreign exchange, in which evidence is spread worldwide.
If the UN - or another similar entity established with the support of a large number of countries - facilitates access on a regular basis, to the financial institutions of the signatory countries - in the cases of white collar and organized crime - it would no longer be necessary to execute a preventive detention for a longer time, except to prevent an escape. This is what we propose here. There would be a huge decrease in legal and judicial bureaucracy to verify the deposits and transfers of illegal money between countries and tax havens.
Before Lava Jato the offenders felt practically unpunished because they knew how difficult it is to prove, in court, such crimes. The money can be hidden in suitcases, pants, legal and front companies, and international financial institutions, with their depositors protected by bank secrecy.
I spoke about state’s plea, saying it is essential for the constraint regarding the embezzlement of large sums of money, but it presents a problem: an excessive susceptibility protecting important people when accused of millionaire embezzlement. Many law operators do not like it or are afraid of upsetting them, forgetting that - sad reality - without some psychological pressure and discomfort, the offender will not confess. Neither to the police station, the prosecutor, to the judge, nor to the priest, not even to God. And with the latter one, the offender would just avoid the issue. Without some pressure, fear or constraint - not to be confused with real torture, physical torture - the investigated one also does not indicate who his accomplices are. It would be a dangerous disloyalty, in the "outlaw code of ethics". In the USA, the whistle-blower is called a "rat", deserving to be trampled on or seasoned with lead.
Hence the real need, in the Lava Jato, for the police to investigate - without fanfare - as far as possible on their own and in order to complete the investigation, ask a judge for the arrest, or temporary detention, without prior notice, of those under investigation. Only they themselves can provide the details that are mandatory for the success of an effective prosecution: full names of accomplices, stooges, black market dealer, banks, branches, bank accounts, countries, exact amounts, dates, and other details essential to an indictment supported by a well-done investigation that can be confirmed in court.
In this chain of participants, no "link" can be missing, as recommended by the tactic of "follow the money". Hence the need to arrest the accused on a temporary basis - by surprise - because if summoned days in advance to appear at the police station, he knowing himself guilty, will immediately seek out a criminal lawyer . And this lawyer - by professional duty - will tell him what to do, depending on the situation: flee, keep silent, destroy evidence, warn his accomplices, transfer funds from one bank to another, etc. Brazilian law permits precautionary arrests because without them, justice in the most complex crimes would be a rarity, perpetuating the aforementioned "double standard justice", one for the wealthy and another for the poor.
There are those who say - emotionally, almost in tears - that arresting someone without prior notice, with the possibility of extending the detention is "torture", especially if the prisoner is elderly.
Those who consider extended temporary detention "torture" have their heads in a cloud or are loyal friends of the "tortured". They forget that the money generally in a vast amount, obtained from the theft of public money has killed or harmed a large number of old people, young people and children from the least favoured classes, who live in precarious conditions. Poorly educated, poorly fed, poor in everything, because they were deprived of the wealth subtracted by the "tortured" old man incapable of controlling his own greed. Why so much affection for those who acted wrongly, despite being old?
Every crime, or illegality, presupposes risk. When it works, it is all smiles, but when something goes wrong, one has to accept the consequence of great discomfort, or suffering which is solely moral. The detainee was not tortured. He has not been hungry, cold, deprived from sleep, or suffered physical aggression. In most cases of long pre-trial detention, there would be a trial and conviction, with evidence and even an explicit confession, with the recovery of billions of government money. Proof that the system worked, it achieved its objective: to convict the guilty.
The familiar phrase "scoundrels grow old too" is well known, but I affirm that not every investigated person deserves this vile classification. Perhaps a few suspects were not fully aware of the reality, when invited to participate in some business or operation. However, when the dishonest scheme is discovered, their names in long lists of offenders and therefore the need to be arrested, in the search of the truth. One cannot fail to investigate based on a citizen's face of kindness and social prestige.
Deceitful scoundrels are interested in being surrounded by a couple of honest, prestigious people to give an air of respectability to dishonest undertakings. Such victims - paradoxically victims because they are too honest - may fall into depression, and even commit suicide unable to bear the humiliation. This is a risk, rare and regrettable, but it does not invalidate what has been mentioned in this article: the need for provisional arrest to get to the bottom of a plot that, without arrest, would mean impunity. No judicial system, in the world is shielded against the eventuality of a mistaken accusation. Remember that there are many more criminals not punished, for lack of proof, than innocent people convicted. When this occurs, the media does not let it pass unnoticed, because of its rarity. Rare as white flies.
I do not know how interrogations are conducted in practice, in provisional and preventive detention, but I presume that they will only be fully useful if the investigated answers the questions unaccompanied. If his lawyer is of an aggressive, exalted temperament, interested in rioting - protesting and constantly interrupting the dialogue between the questioner and the answerer - this work becomes useless.
I assume that in general, there is a kind of poker game in these enquiries, in which the police officer or the prosecutor may appear to know more than what is really known about the illegal conduct of the investigated but does not want to "show his cards ahead of time". This uncertainty agonizes the offender, limits his freedom to invent what does not exist. In turn, the investigated tries his best to look innocent. In this cunning game, the police officer or prosecutor has an upper hand since he does not work under fear or pressure. They do not need to, nor can they, lie, invent non-existent facts - saying, for example, that all the juniors have already confessed, when this did not occur. All they have to do is ask and doubt, insisting on the details, showing the contradictions to the offender. It is a relatively easy, comfortable job. It is just about searching for the truth.
The accused, however - when guilty - testifies in anguish, sweating, having to invent, offhand, and then remember the lies not to contradict himself. He is afraid of being condemned, demoralized, losing everything - freedom, positions, wealth, family life. And there is no point in remaining mute, knowing that he will be detained even longer. Exhausted, he tends to tell the truth, even against his lawyer's opinion. He thinks of the advantages of a state’s evidence. He will not lose everything, and perhaps he will stay at home, with an electronic ankle bracelet.
I remember a few years ago, when I was watching white-collar crime trials on television, I wrote, in an article, that there was a somewhat generalized, traditional corruption - "when in Rome, do as the Romans". There was, as there still is, an enormous Brazilian fiscal greed, stimulating illicitness as an understandable "defence" of the swindled taxpayer - it would be more equitable and reasonable in such cases and once the fraud was discovered, that the defendant should only return what he had evaded, avoiding prison.
As time went by, I changed my understanding because such leniency would encourage dishonesty. The unscrupulous citizen would think thereafter: - "I will steal, or evade as much as I can. If not discovered, I will get rich or multiply my wealth. If found out and convicted - which will be difficult since the proof is complicated - I will return what I embezzled without prison time. It is worth being smart, if all it takes is courage".
As this article is already too long, there is no need to detail the work of the Lava Jato judge as the media, in Brazil and abroad, has already published enough about Judge Moro, modest, hardworking, patient, honest, a family man and immensely courageous. There are also books about him.
A few days ago I read, in an e-book, his biography, "The most intense days", written by his wife, Rosângela Moro. It could be said that a biography written by a wife is always suspect, biased. Not always. When the reader follows, almost daily, in the media, everything that is published - for and against the biographee - one can know if the most recent biographer is telling the truth or not. All the facts related in the mentioned book fit in, harmonize with what I already knew about the personality of the now ex-judge.
For reasons that are not worth detailing here - also of common knowledge - the coexistence between the magistrate and the president did not work out. Bad luck for the three: the judge, the president and the country. As he was unable to return to his position as judge, since he resigned, he became unemployed. So, how would Sergio Moro make a living? By practicing criminal law, his specialty?
It would have made no sense for him to set up a criminal lawyer's practice with the mission of defending major lawbreakers, especially him, who had always fought lawbreakers. Besides, once his quarantine ended, he was left without police protection, with dozens of powerful, rich defendants, convicted by him - either in prison or released - wanting and being able to take revenge with almost total impunity. I is not difficult to order a fake "robbery", in which the killer does not even know who was behind it.
Hence the need and speed to leave the country, which he will certainly do. What was said above tries to remember that Sérgio Moro is an idealist and, for this reason, the United Nations, or an entity with similar purposes, has almost a moral obligation to use his skills and experience for a mission not necessarily by any specific nation but by all of them for which honesty is the ultimate goal.
This article was written in a colloquial style, for the common reader, without legal background, although it can or should also be read by judges, prosecutors and lawyers in the non-criminal area. I will be honoured if this occurs. I note that, initially, the text was three times as long as this one, which would cause a stampede of terrified readers, unwilling to prolong the sacrifice. It is the dilemma of electronic communication: one cannot say everything. Moreover, if the "monster" is sliced, not even the first slice will be fully consumed.
Translated by Victoria Fernandes
IN TIME: Considering the relevance of the issue addressed in this article, I decided to complement it since I did not present all my arguments in it. It would be too long. Thus on 01/04/2021 I will forward to Facebook an addendum to the text, for the knowledge of those interested. Stay tuned.
The author: Francisco Cesar Pinheiro Rodrigues is a Brasilian writer, retired judge who resides in São Paulo, Brasil.
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