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The PT on Case 470 | Double Standards and Undue Process

The balck-box recording equipment used to capture a bribe paid to a Brazilian post office official in 2005 — a case that mushroomed into the «big monthly payola» scandal. This and other tapes were recorded and used by Carlinhos Cachoeira to blackmail potential political, business and criminal rivals.

Imagine if I were one of Nixon’s men — say, chief of staff and unofficial treasurer of the Bebe Rebozo memorial slush fund.

Substitute Abramoff or Duke Cunningham or whatsoever smooth political operator you recall with fondness.

The point is that for my alleged misdeeds, in the worst of cases, under U.S. law, I would be dragged before a court and made to explain myself to a jury of my peers.

Fortunately for me, these fine fellow citizens would be sworn to come to a unanimous agreement as to my guilt before the uniforms are allowed to haul me off to jail. Even there, I would still have an opportunity to appeal up the ladder, possibly even to the Supreme Court

Today, an official statement by Brazil’s ruling PT — Workers Party — makes a similar comparative point regarding the ongoing mensalão trial.

The PT’s reputed Machiavelli, José Dirceu — whose reputation for subterfuge pales beside the documented doings of the Peruvian Rasputin, Vladimiro Montesinos, by the way —  has been found guilty in a corruption and money laundering case which defense attornies say was marred by less than orthodox evidentiary rules, and more generally by the structural incoherence of Brazil’s “special forum” law for defendants occupying elected office.

How not to be sympathetic? To be found guilty by a vote of 6-5 surely sounds like someone with intelligence and experience enough to become a Supreme Court Justice  has a thoroughly reasoned doubt that should benefit me.

It might not be surprising to see Dirceu and other members of the “political nucleus” appealing to the Interamerican Commission on Human Rights based on the same due process considerations.

I translate portions of the party’s statement, at any rate.

The PT, exercising its right to freedom of expression, comes before the public to register its disagreement with the decisions of the Supreme Court in Case 470, in which PT members have been found guilty and received disproportionate sentences.

1. The STF did not grant the defendants the opportunity to mount an adequate defense.

The STF denied defendants not covered by the rule of privilged forum the opportunity to be heard by the lower courts. In this way, it deprived them of their right to defend themselves, a fundamental right of citizens that is internationally recognized.

The Brazilian Constitution of 1988, in Article 102, states that only the president and vice-president, members of congress, Supreme Court justices and the federal attorney general may be tried and sentenced exclusively by the Supreme Court.

The rule also applies to cases involving common crimes and crimes of responsibility by state ministers, armed forces commanders, senior judges and justices of the TCU, and diplomatic heads of mission.

It was for this reason that former Justice minister Marcio Thomaz Bastos made a motion to try each of the nearly 40 cases individually The STF declined to do so, even though it had already done so in the case of the “payola of the PSDB” in Minas Gerais.

In other words, the court has ruled according to a double standard in which identical situations are treated in different ways.

It is worth remembering, after all, that the STF voted in favor of separate trial in four recent cases so that persons without special standing could be tried by a lower court. All of these rulings came after the decision to consolidate the cases against all the defendants in Case 470.

The PT considers this treatment legitimate and coherent, since it allows defendants condemned by the STF to exercise and exhaust their right of appeal.

2. The STF treated mere indicators as definitive proof

Some STF ministers voted to condemn the defendants even though there was no solid proof of guilt. Judging from the trial transcripts and in light of the evidence presented, the trial was not fair and balanced. On the contrary. The case was influenced by a parallel set of arguments that one minister called “highly unorthodox.” Rules of evidence were distorted, the burden of proof was transferred to the defendants, and speculation, deductions and mere inferences were afforded the status of conclusive proof.

The void opened up by the lack of objective charges was filled in with mere conjecture, accusations and suppositoins — a serious defect in a case that could lead to heavy prison sentences. As we all know, indicators merely point to possibilities and never to the kinds of certainties sufficient to convince the principal trier of fact. Indicators are mere suggestions, not evidence or damning proof.

It is up to the accuser to meet his legal burden of proof with hard evidence in order to obtain a conviction. In Case 470, the defendants were obliged to prove their own innocence or confirm their alibis — both tasks for which the accuser is responsible The Supreme Court has inverted the burden of proof.

3. Establishing “functional dominion” over the criminal act does not preclude the need for evidence.

The STF has confirmed jurisprudential standing on a theory first elaborated in Nazi Germany, in 1939, then renewed during the Cold War — a theory thought to be outdated by many legal theorists. Under this doctrine, the criminal is not merely the person carrying out the criminal act but also has, or potentially has, by virtue of his official function, the power of decision over the realization of the crime. . That is to say, on this theory, when ignorance of the crime is not plausible, this line of reasoning supports finding the defendant guilty.

In accepting this theory, the Supreme Court justices were able to infer that José Dirceu, on account of the leadership role he played, could be found guilty even without proving that he took part directly in the crimes alleged. Or that, knowing of the crimes being committed, he failed to act to prevent them or actively overlooked them. The synthesis of this legal doctrine was expressed by the President of the STF when he asked, not whether defendant Dirceu had knowledge of the crimes, but rather whether he “had the means to know” they were taking place.

In admitting the existence of an official act and appylying the theory of responsibility for acts by subordinates, the STF has created a dangerous precedent: the condemnation of persons not for what they have done but because of who they are.

This is a legal theory created for the sole purpose of condemning specific persons and, by extension, attacking the political party to which they belong.

4. The Risk of Judicial Uncertainty

In may respects the decisions of the STF in this case will, in many cases, lead to the end of the guarantee theory of civil rights. It will further erode the right to an effective defense and a growing presumption of guilt, with the defendant left with the burden of proof. Furthermore, in ruling that the crime of money laundering can be charged even where there is no underlying crime, and in ruling that vote-buying took place in the federal Congres, the STF is creating a climate of legal undertainty.

Observers are watching for signs of this theory in other trials before the STF, or whether courts of the first instance will follow the example established by the Supreme Court.

Starting now, unscrupulous judges or judges with personal ties to parties before their courts will be able to evoke the “dominion de facto” theory to attack personal enemies or local political bosses.

As to the supposed buying of votes, involving such votes as the constitutional amendments of tax and pension legislation, casos have already been brought by unions and individual stakeholders seeking to declare these amendments null and void

And as judicial uncertainty flourishes, the victims are not confined to those treated unfairly in Case 470. Society as a whole is the poorer for the casuisms and exceptionalisms in constitutional law. The institutional integrity of the democratic rule of law is the biggest loser of all.

5. The STF Is Holding a Political Show Trial

Under the hot lights of the conservative media — whose news organizations function as a coordinated opposition party and perpetuate a long-standing hatred for the PT — ministers of the STF have previewed their votes to journalists, commented on the case ex parte, and, last but not least, have infringed on areas proper to the Executive and the Legislative branches, abusing the independence of the three branches.

One of the conditions on the only branch of government not subjected to the popular vote is an unlimited tenure until reaching the mandatory retirement age of  70 years. For this reason, the STF and the justice system as a whole is free to play politics. A shining example of this is Case 470.

The court was clearly engaged in politics when it scheduled the trial to coincide with this year’s elections. The court also plays politics when it refuses to break up the case into its individual components and when it introduces the “de facto dominion” theory to make up for the lack of solid evidence.

Contrary to its constitutional vocation as an apolitical court of last appeal, the STF has allowed itself to be pressured by the mass media and has failed to distance itself from the election cycle. Its actions have not exhibited the proper objectivity.

During the trial, certain ideological positions, represented by the mainstream media, have prevailed in the Court’s decisions: A majority of the justices transformed mere infractions of the Election Code into major felonies such as misappropriation of public funds and vote-buying.

Though realized in terms of the rule of law that governs us all, this glaringly political trial fails to respect the guarantee against condemnation without conclusive evidence and has attempted to criminalize our party in the process. Framed in this way, the trial has followed two converging paths: to condemn the defendants, in many cases without inadequate evidence on the record, and to criminalize the PT under the rubric of “vote buying.”

Dozens of sworn witnesses for the defense were simply ignored. Countless items of rebuttal evidence were never even taken into account. And countless solid precedents were set aside in order to produce the desired outcome.

Some justices did try to reality-test the charges brought by a prosecutor deeply influenced by media-driven public opinion — a media much less concerned with public morality than with attempting to smear former president Lula, in a sort of political character assassination. The prosecutor did not even bother to conceal his bias, as when he said that the results of the trial should have an effect on this year’s elections.

The Battle for Justice Continues

The PT will spare no effort to fight the politicization of the judiciary that has been so glaringly obvious during the trial of Case 470. Errors or illegal acts committed by party members in the context of the imperfect and inconsistent legislation governing elections — legislation the PT has worked hard to reform on the floor of Congress — do not justify this intrusion by the judiciary into the affairs of branches of government where power emanates from the popular vote.

Throughout its history, the PT has overcome many obstacles in the road to popular acceptance. It is a party that twice elected an autoworker to the presidency and later, the first woman ever to occupy that office. Ambos, Lula e Dilma, gozam de ampla aprovação em todos os setores da sociedade, pelas profundas transformações que têm promovido, principalmente nas condições de vida dos mais pobres.

Despite the campaigns of hate and prejudice waged against them, Lula and Dilma have taken Brazil to new heights: 28 million have left extreme poverty and 40 million have ascended to a higher social class.

As we did before the trial started, the PT restates its conviction that there never existed a vote-buying scheme in the congress, and that there never was a monthly «payola» to legislators.  We reaffirm as well that the PT members charged in the case never abused the public treasury or siphoned off money for their private or personal use.

At the same time, we repeat the resolutions adopted at our National Congress with respect to political errors both individual and organizational.

São Paulo, 14 de novembro de 2012.