Brazilian Lava Jato Operation: a typical case of medieval justice

Joan of Arc is very much alive in Brazil. Echoes of her protests upon being interrogated can be heard in the words of Admiral Othon Pinheiro, a soldier unjustly denounced and convicted during a grotesque case of Lawfare.

Three things really caught my attention in the interview with Admiral Othon Pinheiro.

The first was the impeccable journalistic work of Wadih Damous. Instead of giving opinions, interrupting the interviewee and talking all the time, he did what journalists should do and what global television journalists never do: he left the Admiral free to talk about himself and what happened to him.

The second was the Admiral's attempt to commit suicide because of the indignity of the situation to which he, a national hero, was subjected by Brazilian justice. Fortunately, he was prevented from carrying out the act and survived to give his video statement.

The third was the striking phrase that sums up the national tragedy well:

“the guy writes that the fact is that and [what was written] becomes true… it is very difficult to live in a system in which the comrade says one thing and it becomes true”

The Admiral's words reminded me of something I read about Joan of Arc's trial. At one point she protested that everything that was against her was noted by the clerk but that which was in favor of her was not written down. Thus, what was written obviously did not represent the truth but would be seen as the only truth when read by someone (exactly as in the case of the Brazilian Admiral).

In the modern criminal system, “truth” is what has been duly proven in the case by evidence collected under the scrutiny of the adversary system. The evidence that can be presented in the process is that prescribed by law. Among the evidence of legally relevant facts (truth) is not the conviction of those who accuse the defendant.

The reason for this exclusion is simple. During the Middle Ages, every accusation ended up resulting in conviction because of the obvious distinction between the poles of the process. The accuser enjoyed the prestige of being the defender of the faith and the accusation demoted the accused to the status of someone who had committed heresy or challenged the authority of the church. As the judges were all religious, they obviously naturally leaned towards the prosecution.

Cases of conscientious objection (such as what occurred during the trial of Joan of Arc, in which a cleric refused to participate in the farce after noticing that Pierre Cauchon had condemned the accused before collecting the evidence) were rare. In fact, by acquitting a defendant who had been condemned by other judges, the judge himself could attract the accusation of favoring heresy or protecting heretics (this theme was masterfully explored by Umberto Eco in the novel The Name of the Rose).

The modern Criminal Procedure rejects the accuser's conviction as proof of the crime attributed to the defendant. This is an irrefutable statement and is corroborated by the constitutionalization of the principles that guarantee due legal process, broad defense, the non-existence of exceptional judgments, the prior classification of crimes, the invalidity of illicit evidence, the presumption of innocence of the defendant, etc... These principles oblige the prosecuting body to produce lawful evidence (witness, documentary and expert evidence) that the accused committed the crime charged.

It is up to the judge in the case to independently and independently assess the evidence produced in the case. When judging the case, he must comply with and enforce the Law and the constitutional principles of Criminal Law. The judge should not attribute probative value to the accuser's conviction that the defendant is guilty, as if he does so he will inevitably introduce features of Medieval Law that are expressly rejected by modern Criminal Law. When the judge turns the accuser's belief into proof of guilt (as occurred in the cases of Admiral Othon and Lula), the defendant is demoted to the status of a heretic and the person who accused him begins to enjoy the same powers and privileges that were granted to those in charge of religious orthodoxy.

Admiral Othon is absolutely correct “…it is very difficult to live in a system where a comrade says something and it becomes true”. But he could have just said “it is very difficult to live in a country that has regressed to the judicial standards of the Middle Ages”.

I was really moved by the retired military officer's testimony. I grew up hating the Brazilian military because of what happened in my childhood (I was born in 1964 and my house was kicked into several times in 1967 because my father was a supporter of João Goulart), but I am a lawyer and I learned to deeply respect the humanity of people. people persecuted by justice.

Admiral Othon's interview taught me two important things: not all soldiers are bogeymen; The bogeymen that haunt Brazil at the moment (medieval prosecutors and judges) must be fought with redoubled effort. The only written thing that should be considered unquestionable truth by prosecutors and judges is the Brazilian Constitution. The convictions that lead to criminal convictions only prove the thesis of those who say that we are already living under a hateful judicial dictatorship.